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

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?

This question has resulted in a body of case law and amendments limiting the scope of the rule's application. However, the case of Shectman v. Bransfield, 403 N.J. Super. 487, 959 A.2d 278 (2008), affirms that the instruction still has vitality in New Jersey and is applicable under appropriate circumstances.

The Rule's Evolution in New Jersey

The genesis of the medical judgment rule in New Jersey is found in Schueler v. Strelinger, 43 N.J. 330 (1964), where the state supreme court held: “[W]hen a surgeon selects one of two courses (of treatment), either of which has substantial support as proper practice by the medical profession, a claim of malpractice cannot be predicated solely on the course pursued.” This is because when “a matter (exists) about which there are differing schools of medical opinion ' the plain inference is that the matter must be left to the good faith judgment of the experienced attending surgeon.” New Jersey courts have generally recognized the rule's application to situations involving misdiagnosis or the selection of one of two or more accepted courses of treatment. Aiello v. Muhlenberg Regional Medical Center, 159 N.J. 618 (1999).

The challenge and controversy over the doctrine's application was highlighted in Morlino v. Medical Center of Ocean County, 152 N.J. 563 (1998). There, a pregnant woman's fetus died after the patient was administered Cipro, an antibiotic, for a persistent sore throat. The court's standard of care inquiry centered on whether or not it was appropriate to prescribe Cipro under the circumstances. The trial judge allowed the jury to be instructed on the medical judgment rule regarding the Cipro prescription. The Appellate Division affirmed the jury charge, but expressed reservations, noting the instruction's repetitive use of the term “exercise of judgment” and the fact that other jurisdictions have rejected the “judgment” distinction because it confuses “jurors into focusing on the health care provider's subjective intentions and judgments rather than the real issue of whether the health care provider's conduct conformed to an objective standard of care.” Indeed, the American Trial Lawyers' Association, amicus curiae, requested that the supreme court delete from the model charge the phrase “exercise of judgment” altogether.

The court noted that other states have rejected the judgment rule because jury instructions contained language such as “good faith judgment,” “modified judgment,” “honest mistake,” “honest error in judgment,” and “bona fide error in judgment.” Such terms may imply that a plaintiff must demonstrate bad faith, dishonesty or fraud. In contrast, the New Jersey charge “rightly recognizes that a physician exercises judgment when choosing among acceptable treatment alternatives.” Consequently, it appears that New Jersey's treatment of the medical judgment rule has been more conservative then that of other states.

Narrowing the Doctrine

Notwithstanding, New Jersey's supreme court did find problematic a sentence in the model charge, which states: “The physician cannot be held liable if, in the exercise of his judgment, he nevertheless made a mistake.” This is meant to convey that a physician should not be held liable if, in accordance with acceptable standards of care, the doctor chooses a course of treatment that is futile. However, out of context, it could suggest a doctor is not liable for a mistake that results from an exercise of judgment but is still negligent. Accordingly, while upholding the jury charge, the court instructed the Committee on Model Jury Charges to delete the aforementioned sentence.

The doctrine's application was further narrowed and refined in Velazquez v. Portadin, 163 N.J. 677 (2000). In Velazquez, an infant's parents brought an action against an obstetrician, alleging that the infant suffered brain damage during delivery. Plaintiffs' experts opined that oxygen depravation occurred at the same time Pitocin was being administered to the mother, and the medication should have been discontinued once the fetal monitoring strips became unreadable. All the experts agreed that it was appropriate to augment the contractions with Pitocin. However, they disagreed as to whether fetal monitoring took place and if the monitoring strips were in fact readable, allowing defendants to observe the fetus' reaction to the Pitocin-induced contractions. On appeal, following a finding of no cause, plaintiff contended that the medical judgment instruction constituted reversible error. The Appellate Division affirmed the jury charge.

Reversing, the New Jersey Supreme Court noted that the only issue of medical judgment in this situation was whether to use an internal monitor during delivery. The other issues, such as whether the strips were readable, were not judgment calls but questions of fact. The court explained that “a trial court must not only administer the exercise of judgment charge solely in cases where the charge is appropriate, but it must also separate out those aspects of the medical care that involved judgment and those that did not.” In other words, a jury instruction that fails to specify which action qualifies as an appropriate medical judgment may be overly broad.

Another Amendment

Following Velazquez, the model charge was again amended to clarify that physicians cannot rely on the medical judgment rule to avoid liability for ordinary negligence: “[C]ourt and counsel should analyze the parties' testimony and theories in detail, on the record, to determine whether the charge is applicable at all and, if so, to which specific issues. The charge should then be tailored accordingly.” The Velazquez mandate was reaffirmed in Das v. Thani, 171 N.J.518 (2002).

Currently, the model charge reads: “A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis/treatment choices must be in accordance with accepted standard medical practice. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the standard of care for treatment or diagnosis with respect to [specify what type(s) treatment or diagnosis is involved] did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.” The instruction is deliberately short, simple and no longer expressly uses the term “exercise of judgment.”

In Shectman v. Bransfield, the defendant psychiatrist, Dr. Robert Bransfield, began treating the plaintiff for mental illness in 1991. He saw the plaintiff approximately twice a year, primarily to prescribe drugs and adjust medications. In 2000, the doctor prescribed Paxil and discontinued Anafranil to treat an obsessive compulsive disorder. On Oct. 9, 2000, Dr. Bransfield instructed the plaintiff to reduce the dose of Paxil, while beginning a new medication, Luvox. Plaintiff was then to stop taking Paxil and remain on Luvox. Dr. Bransfield testified that his custom and practice was to instruct the patient to return if there were any problems. No follow-up visits were scheduled.

Dr. Bransfield did not see the plaintiff following the October visit, and his mental condition deteriorated. On Nov. 5, 2000, the patient swallowed detergent and stabbed himself 27 times. Plaintiff alleged that Dr. Bransfield failed to properly monitor and supervise his medications, which resulted in the attempted suicide.

At issue was whether the standard of care required Dr. Bransfield to follow up with the plaintiff after the adjustments were made to his medications. The plaintiff's expert testified that, after the October visit, Dr. Bransfield should have seen the plaintiff on a weekly basis, if not more. The defendant's expert responded that it was within the standard of care to instruct the plaintiff to call the doctor's office or visit the emergency room if there was any problem. The defendant testified that there is no standard of care requiring a psychiatrist to see and evaluate the patient “at any certain interval,” positing that this decision is left to the physician's medical judgment. The jury found for the plaintiff and, on appeal, the defense contended that the trial judge erred by refusing to charge the jury on medical judgment.

The Appellate Division noted that both parties agreed Dr. Bransfield had a duty to monitor and supervise the plaintiff's condition. However, the plaintiff's own expert conceded that “the frequency of visits or when it's necessary for the patient to be seen by the doctor is a medical decision, and that's a decision the doctor makes.” Accordingly, the court found “sufficient evidence in this case of two 'schools of medical treatment.' As we have indicated, the medical experts testified that a psychiatrist's decision to choose one of these two courses of treatment was dependent upon a variety of factors and the choice was a matter of medical judgment. We are therefore convinced that the judge erred by failing to instruct the jury on medical judgment.”

Conclusion

While the judicial trend in New Jersey has been to narrowly focus the medical judgment rule jury instruction's application, Shectman demonstrates its continued relevance and durability. Given the close relationship between medical judgment and the standard of care, courts around the country will continue to face challenges concerning when to apply the medical judgment rule. The doctrine will most likely undergo further refinement and modification in those jurisdictions in which it is used.

Gary Riveles heads the appellate department at Dughi & Hewit in Cranford, NJ. Douglas M. Singleterry is an associate with the firm. This article is a modified version of one that first appeared in the New Jersey Law Journal, an Incisive Media sister publication of this newsletter.

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?

This question has resulted in a body of case law and amendments limiting the scope of the rule's application. However, the case of Shectman v. Bransfield , 403 N.J. Super. 487, 959 A.2d 278 (2008), affirms that the instruction still has vitality in New Jersey and is applicable under appropriate circumstances.

The Rule's Evolution in New Jersey

The genesis of the medical judgment rule in New Jersey is found in Schueler v. Strelinger , 43 N.J. 330 (1964), where the state supreme court held: “[W]hen a surgeon selects one of two courses (of treatment), either of which has substantial support as proper practice by the medical profession, a claim of malpractice cannot be predicated solely on the course pursued.” This is because when “a matter (exists) about which there are differing schools of medical opinion ' the plain inference is that the matter must be left to the good faith judgment of the experienced attending surgeon.” New Jersey courts have generally recognized the rule's application to situations involving misdiagnosis or the selection of one of two or more accepted courses of treatment. Aiello v. Muhlenberg Regional Medical Center , 159 N.J. 618 (1999).

The challenge and controversy over the doctrine's application was highlighted in Morlino v. Medical Center of Ocean County , 152 N.J. 563 (1998). There, a pregnant woman's fetus died after the patient was administered Cipro, an antibiotic, for a persistent sore throat. The court's standard of care inquiry centered on whether or not it was appropriate to prescribe Cipro under the circumstances. The trial judge allowed the jury to be instructed on the medical judgment rule regarding the Cipro prescription. The Appellate Division affirmed the jury charge, but expressed reservations, noting the instruction's repetitive use of the term “exercise of judgment” and the fact that other jurisdictions have rejected the “judgment” distinction because it confuses “jurors into focusing on the health care provider's subjective intentions and judgments rather than the real issue of whether the health care provider's conduct conformed to an objective standard of care.” Indeed, the American Trial Lawyers' Association, amicus curiae, requested that the supreme court delete from the model charge the phrase “exercise of judgment” altogether.

The court noted that other states have rejected the judgment rule because jury instructions contained language such as “good faith judgment,” “modified judgment,” “honest mistake,” “honest error in judgment,” and “bona fide error in judgment.” Such terms may imply that a plaintiff must demonstrate bad faith, dishonesty or fraud. In contrast, the New Jersey charge “rightly recognizes that a physician exercises judgment when choosing among acceptable treatment alternatives.” Consequently, it appears that New Jersey's treatment of the medical judgment rule has been more conservative then that of other states.

Narrowing the Doctrine

Notwithstanding, New Jersey's supreme court did find problematic a sentence in the model charge, which states: “The physician cannot be held liable if, in the exercise of his judgment, he nevertheless made a mistake.” This is meant to convey that a physician should not be held liable if, in accordance with acceptable standards of care, the doctor chooses a course of treatment that is futile. However, out of context, it could suggest a doctor is not liable for a mistake that results from an exercise of judgment but is still negligent. Accordingly, while upholding the jury charge, the court instructed the Committee on Model Jury Charges to delete the aforementioned sentence.

The doctrine's application was further narrowed and refined in Velazquez v. Portadin , 163 N.J. 677 (2000). In Velazquez, an infant's parents brought an action against an obstetrician, alleging that the infant suffered brain damage during delivery. Plaintiffs' experts opined that oxygen depravation occurred at the same time Pitocin was being administered to the mother, and the medication should have been discontinued once the fetal monitoring strips became unreadable. All the experts agreed that it was appropriate to augment the contractions with Pitocin. However, they disagreed as to whether fetal monitoring took place and if the monitoring strips were in fact readable, allowing defendants to observe the fetus' reaction to the Pitocin-induced contractions. On appeal, following a finding of no cause, plaintiff contended that the medical judgment instruction constituted reversible error. The Appellate Division affirmed the jury charge.

Reversing, the New Jersey Supreme Court noted that the only issue of medical judgment in this situation was whether to use an internal monitor during delivery. The other issues, such as whether the strips were readable, were not judgment calls but questions of fact. The court explained that “a trial court must not only administer the exercise of judgment charge solely in cases where the charge is appropriate, but it must also separate out those aspects of the medical care that involved judgment and those that did not.” In other words, a jury instruction that fails to specify which action qualifies as an appropriate medical judgment may be overly broad.

Another Amendment

Following Velazquez, the model charge was again amended to clarify that physicians cannot rely on the medical judgment rule to avoid liability for ordinary negligence: “[C]ourt and counsel should analyze the parties' testimony and theories in detail, on the record, to determine whether the charge is applicable at all and, if so, to which specific issues. The charge should then be tailored accordingly.” The Velazquez mandate was reaffirmed in Das v. Thani, 171 N.J.518 (2002).

Currently, the model charge reads: “A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis/treatment choices must be in accordance with accepted standard medical practice. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the standard of care for treatment or diagnosis with respect to [specify what type(s) treatment or diagnosis is involved] did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.” The instruction is deliberately short, simple and no longer expressly uses the term “exercise of judgment.”

In Shectman v. Bransfield, the defendant psychiatrist, Dr. Robert Bransfield, began treating the plaintiff for mental illness in 1991. He saw the plaintiff approximately twice a year, primarily to prescribe drugs and adjust medications. In 2000, the doctor prescribed Paxil and discontinued Anafranil to treat an obsessive compulsive disorder. On Oct. 9, 2000, Dr. Bransfield instructed the plaintiff to reduce the dose of Paxil, while beginning a new medication, Luvox. Plaintiff was then to stop taking Paxil and remain on Luvox. Dr. Bransfield testified that his custom and practice was to instruct the patient to return if there were any problems. No follow-up visits were scheduled.

Dr. Bransfield did not see the plaintiff following the October visit, and his mental condition deteriorated. On Nov. 5, 2000, the patient swallowed detergent and stabbed himself 27 times. Plaintiff alleged that Dr. Bransfield failed to properly monitor and supervise his medications, which resulted in the attempted suicide.

At issue was whether the standard of care required Dr. Bransfield to follow up with the plaintiff after the adjustments were made to his medications. The plaintiff's expert testified that, after the October visit, Dr. Bransfield should have seen the plaintiff on a weekly basis, if not more. The defendant's expert responded that it was within the standard of care to instruct the plaintiff to call the doctor's office or visit the emergency room if there was any problem. The defendant testified that there is no standard of care requiring a psychiatrist to see and evaluate the patient “at any certain interval,” positing that this decision is left to the physician's medical judgment. The jury found for the plaintiff and, on appeal, the defense contended that the trial judge erred by refusing to charge the jury on medical judgment.

The Appellate Division noted that both parties agreed Dr. Bransfield had a duty to monitor and supervise the plaintiff's condition. However, the plaintiff's own expert conceded that “the frequency of visits or when it's necessary for the patient to be seen by the doctor is a medical decision, and that's a decision the doctor makes.” Accordingly, the court found “sufficient evidence in this case of two 'schools of medical treatment.' As we have indicated, the medical experts testified that a psychiatrist's decision to choose one of these two courses of treatment was dependent upon a variety of factors and the choice was a matter of medical judgment. We are therefore convinced that the judge erred by failing to instruct the jury on medical judgment.”

Conclusion

While the judicial trend in New Jersey has been to narrowly focus the medical judgment rule jury instruction's application, Shectman demonstrates its continued relevance and durability. Given the close relationship between medical judgment and the standard of care, courts around the country will continue to face challenges concerning when to apply the medical judgment rule. The doctrine will most likely undergo further refinement and modification in those jurisdictions in which it is used.

Gary Riveles heads the appellate department at Dughi & Hewit in Cranford, NJ. Douglas M. Singleterry is an associate with the firm. This article is a modified version of one that first appeared in the New Jersey Law Journal, an Incisive Media sister publication of this newsletter.