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Exercise of Medical Judgment or Deviation from the Standard of Care?

BY Douglas M. Singleterry
April 28, 2009

It is well settled that a physician must perform within the standard of care and skill ordinarily exercised in similar situations by the average practitioner specializing in the same field. In medical malpractice, it is also recognized that appropriate treatment does not always preclude an unfortunate outcome. How can these tenets be squared with one another?

In a handful of states, a doctrine known as the “medical judgment rule” establishes a distinction between the legitimate exercise of medical judgment and a deviation from the accepted standard of care on the part of a physician. See, e.g., Graham v. Keuchel, 847 P.2d 342 (Okla. 1993) (refusing to rule that “mistake of judgment” instructions are impermissible and finding only that instruction should not have been given based on lack of evidence concerning “choice of several alternatives, equally acceptable medically”); Hunsaker v. Bozeman Deaconess Found., 179 Mont. 305 (Mont. 1978) (approving instruction that “an unsuccessful effort, a mistake, or an error in judgment is not necessarily negligent”).

In New Jersey, the medical judgment rule is set out in Model Jury Charge 5.50G. It provides that when a physician pursues one of two or more courses of treatment, all of which are acknowledged as acceptable treatment options, a medical malpractice claim cannot be sustained on the course selected. But how does a jury distinguish between the genuine exercise of medical judgment and a deviation from accepted practice?

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