[author: Josh Crank]
The Pennsylvania Supreme Court is slated to hear the appeal of a medical malpractice case that could usher a 
controversial defense position back into Pennsylvania courthouses. Depending on the high court’s ruling, Pennsylvania physicians defending against medical malpractice suits may once again be entitled to a jury instruction that “a mere error in judgment” does not constitute negligence.
The case being appealed involves a two-month old boy, Anthony Passarello, who underwent multiple treatments for gastroesophageal reflux in 2001. After several visits with the defendant physician, worsening symptoms compelled his parents, Steven and Nicole Passarello, to bring the boy to the emergency room, where doctors found him in severe respiratory distress. Anthony died soon after, and an autopsy revealed the cause of death as diffuse viral myocarditis, a viral infection of the heart.
The Passarellos sued the baby’s doctor and practice group in 2003, and a jury eventually rendered its verdict in 2009, siding with the defendant physician. But unbeknownst to everyone involved, another medical malpractice suit had just been filed in another part of the state, and would pave the way for the Passarellos’ appeal.
That case involved the complicated birth of Austin Pringle. During delivery, Austin’s shoulder became stuck behind the pubic bone of his mother, Christine Pringle. To free the baby, the physician attempted the “McRoberts maneuver,” which involved raising Christine’s legs toward her shoulders while applying traction to Austin’s head. This attempt failed, so the doctor tried a second technique that involved applying pressure to Christine’s abdomen. That attempt also failed, so the doctor manually turned the baby’s shoulder out from behind the pubic bone using a maneuver called “the corkscrew procedure.”
When it was discovered that Austin suffered extensive nerve damage during his birth, his parents filed suit. Following the testimony at the ensuing trial, the judge issued numerous instructions to the jury, including a reminder that “physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake of judgment.”
The judge continued, “Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgment unless it is proven that an error of judgment was the result of negligence. And folks, as a general proposition that applies in any case, doctors or physicians do not guarantee a cure to their patients, and negligence should not be presumed from the occurrence of an unfortunate result.”
The jury issued a verdict in favor of the doctor, and the Pringles appealed, eventually bringing the case to the Pennsylvania Superior Court. The higher court ultimately reversed the lower court’s finding, noting that the court should not have given the “error of judgment” instruction to the jury.
The higher court found that the “error of judgment” charge is “inherently confusing for juries and thus has no place in medical malpractice cases,” effectively nullifying this line of defense for physicians sued for malpractice in Pennsylvania. It was declared confusing because of its potential to distract jurors from their overriding goal, which is to determine whether a physician’s conduct is within an objective “standard of care.”
In its explanation, the court noted that the instruction “suggests to the jury that a physician is not culpable for one type of negligence, namely the negligent exercise of his or her judgment” and that it “wrongly injects a subjective element into the jury’s deliberations.”
Retroactive Justice
By the time the Pringle’s case put an end to the “error in judgment” defense, the Passarello’s case had alre
ady been decided. And just like in the Pringle’s case, the jury in the Passarello trial was also given the “error in judgment” instruction.
The Passarellos appealed to the Pennsylvania Superior Court, requesting a new trial in light of the fact that their child’s doctor had used the now-prohibited defense. They insisted that the related jury instruction “wrongly inject[ed] a subjective element into the jury’s deliberations when the standard of care for physicians is objective in nature.”
The higher court agreed, finding that the Pringle ruling could be retroactively applied to the Passarello case because the Pringle suit was filed before the Passarello’s final verdict was reached. In its opinion, the court stated that the contentious jury instruction “gave every indication that a physician may avoid liability for otherwise negligent acts if at the time in question he had done the best he could.”
Now the fate of the Passarello case is in the hands of the Pennsylvania Supreme Court, which will determine whether this retroactive application is consistent with existing case law. But the appeal also presents the state’s high court with the opportunity to strike down the Pringle decision, which would make an “error in judgment” an allowable defense once again.
All Eyes on High Court
With the controversial defense hanging in the balance, medical malpractice attorneys for plaintiffs and defendants alike are concerned about the high court’s forthcoming action. John McGreevey, a Pennsylvania defense attorney, wrote that “defendants in medical malpractice cases often feel that the instructions to the jury are unfair and place a burden on the defense that is difficult to overcome,” adding that the “error in judgment” instruction was “perceived as leveling the playing field.”
Sandra Neuman, a Pittsburgh-based plaintiff’s attorney, finds the playing field flatter without the controversial instruction.
“The ‘error in judgment’ instruction is not good for plaintiffs, it’s confusing to jurors and it protects doctors with a selective standard when malpractice cases can really be evaluated quite objectively,” Neuman said. “If they reverse Pringle, doctors and their lawyers can effectively say to juries, ‘I’m a nice guy, I got into medicine to help people and I was using my best judgment.’ It’s like saying, ‘I’m a good driver, I didn’t mean to hurt anyone and I was using my best judgment’ after causing a car accident. What matters is whether you caused the accident.”
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