DEALING WITH THE “ERROR OF JUDGMENT” DEFENSE IN MEDICAL MALPRACTICE CASES

DEALING WITH THE “ERROR OF JUDGMENT” DEFENSE IN MEDICAL MALPRACTICE CASES

A common defense in medical malpractice cases is to assert the cause of the injury was an unintended outcome following medical judgment regarding acceptable choices between alternative medical judgments. Some states, like Washington, approve a jury instruction on this concept. Washington Pattern Jury Instruction 105.08 “Exercise of Judgment” provides:

“A physician is not liable for selecting one of two or more alternative [courses of treatment] [diagnoses], if, in arriving at the judgment to [follow the particular course of treatment] [make the particular diagnosis], the physician exercised reasonable care and skill within the standard of care the physician was obliged to follow.”

Here are some ideas for dealing with the issue.  Consider the following questions, for example

Q. The standard of care requires that before a doctor makes a decision about what to do, the doctor must first make a careful history, correct? (This question is not to connect with jurors too much, but it does set the stage up for the next question, which can be the best question of all.)

Q. Then the doctor must listen carefully (or just “listen”) to what the patient tells him. Correct?

Q. And I don’t mean it goes in one ear and out the other. I mean it goes in one ear, and then the doctor must THINK about what his patient has told him. Don’t be rushed. Don’t just leap! at a conclusion. Carefully THINK. And remember that every patient is different.

Q. Then the doctor must order some tests reasonably indicated to help in the decision process. The doctor must test, don’t guess. Can we agree on that?

Q. And if the doctor fails to do any one of these things, the judgment can be wrong. Do you agree?

Additional approaches to the issue include the following:

  • Use analogies about ” judgment” outside of medicine that the jury can relate to. e.g. a driver who approaches an intersection with the light turning yellow may make the judgment call that he can make it safely. If the light turns red and he causes a crash, no judge or jury would accept his excuse that it was his best judgment that he had time. When a manufacturer is told his drill press is dangerous because a safety guard is missing, he cannot defend the claim of the injured worker by arguing that in his judgment, no one would get hurt. Look at the occupations of the jurors and try to find analogies from their field.
  • Prepare your own expert for “error of judgment” cross examination by pointing out that “a mistake of judgment is a choice among two or more reasonable courses of treatment where the chosen option resulted in a bad outcome. On the other hand, our case involves only one reasonable course of treatment, the doctor failed to choose it and therefore he was negligent.”
  • Look for the most compelling fact of negligence and use it to explain why it would have been a judgment call but for this circumstance. Then point out that if we allow doctors do things that aren’t taught, reported or written about, and just call it judgment, we are all at risk.
  • Have your own experts explain in detail the difference between a judgment call in medicine and other actions that could be considered “matters of judgment”. The expert explains that everything a doctor or nurse does in the context of patient care involves, at some level, “judgment”. Medical judgment calls, however, are quite different and involve a choice among acceptable courses of action. Physicians cannot be held liable for making a true “medical judgment” call because medical judgment calls are exercises in reasonable care and are not negligent. Ask your own experts about each criticism of what the defendant did and ask, “Is that failure of Dr. X a matter of judgment”? The expert should explain why the actions are not matters of judgment and give concrete examples of true medical judgment decisions. In the appropriate case and with the appropriate expert, we ask the expel! rt to describe as “bogus” any attempt to describe the negligence of the defendant as a “judgment call”.