For many years in New York medical malpractice trials, the error in judgment charge was given as a standard part of the jury charge, incorporated into Pattern Jury Instruction 2:150, the very definition of medical malpractice. The widely accepted concept is that where a physician has exercised professional judgment by selecting one of the alternative courses available within the standard of care, that judgment should be protected from second-guessing in the event that the patient does not obtain the desired outcome.
Every profession has its equivalent of the medical standard of care, and it is up to the professionals to apply their judgment to the best advantage of their patient or client, always within the overall standards. A rough analogy is that in football, the quarterback has many options within his judgment as to how to advance the ball, but will be stopped by the referee if there is a violation of the rules of the game or the boundaries of the field.
After the Court of Appeals decided Nestorowich v. Ricotta, 97 N.Y.2d 393 (2002), a caveat was added to PJI 2:150 to the effect that the error in judgment portion of the charge should only be included where there is evidence that the doctor made a choice among medically acceptable alternatives. However, the law was not changed, and the error in judgment defense is as valuable as it ever was in protecting the physician defendant from the other “experts” in the profession who are retained for second guessing.
The physician defendant has never been able to defend his violation of the standard of care by calling it an exercise of medical judgment, any more than the quarterback could justify his detour out of bounds as a legitimate play option. Judgments are only permitted within the framework of the standard of care or the rules of the game. This was clearly the law before Nestorowich, as seen in Bell v. New York City Health and Hospitals, 90 A.D.2d 270 (2d Dept. 1982). The court in Bell cited what it called the well-established principle of medical jurisprudence that liability does not attach to an erroneous professional medical judgment, citing Pike v. Honsinger, 155 NY 201 (1898). The court held that the release of a psychiatric patient from a facility which results in injury to the patient or others qualifies as an area of protected medical judgment.
However, the Bell court then denied the defendant the protection of the judgment defense on the grounds that there was no evidence that there had been a careful evaluation which supported a valid exercise of judgment. Bell, 90 A.D.2d at 280-81. The same treatment of the judgment issue was applied by the Court of Appeals in Shrempf v. State, 66 N.Y.2d 289 (1985), although with less amplification, in reversing the trial court and the Appellate Division to dismiss the complaint of the spouse of a person stabbed by a recently released mental patient.
The addition of the caveat regarding the error in judgment charge following Nestorowich in 2002 has had the unintended consequence of causing attorneys to maintain and judges to decide that the law was changed, and that the error of judgment somehow may not be available in all areas of physician judgment. The decisions of the intervening years show that this is not the case, but reliance on the Pattern Jury Instructions rather than the case precedent is an unfortunate fact of life. In the first line of its opinion, The Court of Appeals carefully limited its decision in Nestorowich to “a medical malpractice action arising out of a surgical procedure” (97 N.Y.2d at 395), and then went on to frame the issue in that case as being whether the charge applied absent a showing that the doctor had, at surgery, chosen one of two or more medically accepted alternative “treatments or techniques.” 97 N.Y.2d at 396.
Focusing on the “treatments or techniques” language, the proposition has been put forth that an error in judgment charge may only be appropriate in cases in which a surgeon has elected one among other surgical treatments or techniques. As articulated in Rospierski v. Haar, 59 A.D.3d 1048 (4th Dept. 2009), the erroneous conclusion drawn from Nestorowich is:
That charge is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically accepted treatment alternatives.
Rospierski, 59 A.D.3d at 1049 (citations omitted).
A reading of the complete Nestorowich opinion demonstrates the fallacy of this position. The court did not narrow the legal protection of bona fide medical judgments to treatment or decisions made by a surgeon, which is apparent from the court’s own words. In stating the broader principle, the court reaffirmed the “protection against second-guessing of genuine exercises of professional judgment in treatment or diagnosis.” The court also reaffirmed the general insulation that the law offers to all medical professionals who, in exercising due care, “choose from two or more responsible and medically acceptable approaches.” 97 N.Y.2d at 399. Many reported decisions since Nestorowich have approved the application of the judgment defense where the evidence is supportive, well beyond the limited scope of surgical “treatments or techniques.”
Within eight months after the Nestorowich decision, the Appellate Division decided Bowes v. Noone, 298 A.D.2d 859 (4th Dept. 2002), in which the court held that the decision whether to report suspected child abuse to the central register involves the exercise of professional judgment, and the jury was justified in finding that the resident and nurses who had “reasonable cause to suspect” abuse had exercised legally protected medical judgment in deciding not to report. Id. at 861. Dr. Noone and the nurses were not surgeons, nor did their protected medical judgments involve “treatments or techniques.” The court correctly stated the broad principle that an error of professional judgment is not actionable provided the exercise of medical judgment is within the range of accepted medical standards. Id.
Likewise, in Dumas v. Adirondack Medical Center, 89 A.D.3d 1184 (3d Dept. 2011), the Appellate Division reviewed a case in which a patient being transferred from one hospital to another following a suicide attempt leapt from the moving ambulance sustaining fatal injuries. Her attending internist had arranged the transfer without an order that the patient be restrained. The court affirmed the lower court’s dismissal, holding that the decision not to restrain the patient was a protected medical judgment. Again, there was no surgeon, and no choice of operative treatments or techniques.
The defense of any case is best served by careful identification of the areas where professional judgment was exercised and could become a focus of criticism. From that early point, the defense can be developed accordingly. The propriety of the broadly stated error in judgment defense was unanimously sustained in Shahram v. Horwitz, 5 A.D.3d 1034 (4th Dept. 2004), specifically because the defendant made the requisite showing that a choice was made between several medically acceptable alternatives, despite poor surgical outcome. In Scofield v. Moreland, 23 A.D.3d 1082 (4th Dept. 2005), the applicability of the charge was upheld based upon the testimony of the defendant that professional judgment was exercised to determine which of several alternatives was appropriate to manage the postoperative complication of the patient.
In contrast, the court in Michalko v. DeLuccia, 187 A.D.3d 1365 (3d Dept. 2020) acknowledged the obligation to protect genuine exercises of professional judgment in treatment or diagnosis, but declined to do so because the defense had not produced medical evidence showing a choice between two or more medically acceptable alternatives when the patient’s anticoagulant was withheld for the surgical procedure. There are successive decisions in an instructive Fourth Department case which involved the denial of summary judgment to the defendant physicians where they had discharged a psychiatric patient who later committed suicide, a classic instance in which professional judgment is involved.
The lower court’s opinion clearly states the difficulty which the court had in determining whether the standard of care had been met, saying that the court was unable to make that determination without some reasonable articulation of the governing standards. Wulbrecht v. Jehle, 28 Misc.3d 808 (Sup. Ct. Erie Co. 2010). Affirming the lower court, the Appellate Division held that the error in judgment defense was not available to the defendants because they had not furnished evidence that their decision constituted a choice between two medically acceptable alternatives. Wulbrecht v. Jehle, 89 A.D.3d 1470, 1471 (4th Dept. 2011).
The error in judgment defense has always been available where the evidence supports the fact that a professional medical judgment was made among alternatives, all of which were within the standard of care. However, the evidence must be understandable for the court and jury to be able to determine that there were multiple options within the standard of care, and that the defendant elected one of them.
This article is also on Law.com: The Error in Judgment Defense is Alive and Well