An attorney representing the estate of a two-month-old baby who died from a viral infection of the heart told the state Supreme Court on Wednesday that the trial court’s jury instruction discussing the “error in judgment” rule reflected precarious legal terrain.

For Clifford A. Rieders, the problem with giving trial judges discretion as to whether they may use that instruction — which goes beyond the standard of care — teed up a landscape in which doctors could be exculpated despite negligence due to confusion among jurors.

“It invites the jury to look at the subjective bona fides of the physician,” Rieders, of Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt, told the court, which was sitting in Harrisburg for a fall session.

Rieders added: “It shifts away from the standard of care to something about a physician’s willingness to be a decent and honorable person.”

The defendants argued jury instructions are within a trial judge’s broad range of discretion. The error-in-judgment rule goes more to what a reasonable physician would do, rather than into a doctor’s motivation, according to the defense.

The argument also delved into how the court system and medical profession have come to intersect over the years, with the courts of centuries ago deferring to a doctor’s opinion. In the courts of today, the standard of care reigns as the guiding standard.

The case of Passarello v. Grumbine stems from a medical malpractice lawsuit filed by the parents of Anthony J. Passarello.

Passarello passed away from acute viral myocarditis in 2001; his pediatrician, Rowena T. Grumbine, had diagnosed him with acid reflux disease and a possible harsh reaction to vaccinations, according to court records.

The baby’s parents, Stephen and Nicole Passarello, sued Grumbine and Blair Medical Associates Inc., both of which rendered some form of care to the sick child before his death.

During what one defense attorney told the justices was a “classic battle of the experts” at the 2009 trial, the court instructed the jury to consider the error-in-judgment rule in rendering its verdict.

“‘Under the law, physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it’s proven that an error of judgment was the result of negligence,’” the Blair County trial judge told the jury in Passarello, according to the court records.

But the Superior Court granted the Passarellos a new trial last year, retroactively applying its 2009 ruling in Pringle v. Rapaport. Pringle banned the “error in judgment” defense in medical malpractice cases and came down just months after the jury handed down a defense verdict in Passarello.

The state Supreme Court denied allocatur in Pringle, according to the docket.

The Superior Court panel in Passarello said its ruling would apply retroactively only to those cases in which the final judgment of the verdict had not been entered before the 2009 filing date of Pringle, which was the case in Passarello. The number of cases affected was further reduced by the fact that appellants would have needed to preserve their challenge to the error-in-judgment rule through an objection and request for relief from the trial judge, which was also contested at one point in the instant case.

James C. Sargent Jr. of Lamb McErlane represented Grumbine, the Passarellos’ pediatrician. Sargent argued Wednesday that trial judges have broad discretion in making jury instruction and, unless that instruction is determined to have been prejudicial, it should stand.

Sargent further argued the state Supreme Court has honored the error-in-judgment rule for years and, despite the Pringle decision and the recommendation of Pennsylvania’s Committee for Proposed Standard Jury Instructions (which Rieders sits on), it’s the court’s precedent that matters.

“With all due respect to that committee, I take the decisions of this court far more seriously,” Sargent said.

According to Sargent, the rule also reflects an important legal measure to protect physicians, who are under increasing pressure to deliver a flawless result all of the time.

“Increasingly, people expect doctors to make everything perfect,” Sargent said.

Blair Medical’s attorney, John W. Jordan IV, said the error-in-judgment rule is not an inquiry into a doctor’s motivations, as he analyzed Rieders to have argued. Rather, the rule allows the jury to consider a doctor’s decision-making process along the lines of what a reasonable physician would do.

Asked whether an alleged misdiagnosis (like Passarello) was enough to establish negligence, Jordan said it was not.

After being asked by Chief Justice Ronald D. Castille to address whether Pringle should apply retroactively to the case, Jordan also said that it should not.

The Supreme Court, per Blair Medical’s petition, agreed to consider whether that retroactive application of Pringle violated its own 1997 ruling in Cleveland v. Johns-Manville, in which the justices declined to retroactively apply case law barring personal injury claims for damages based on increased risk and fear of developing asbestos-related cancer.

Justice Max Baer, who was particularly active in the argument Wednesday, questioned to what extent Pringle mattered, noting the parties were facing de novo review on a question that has never been before Pennsylvania’s high court.

The issue of waiver was also argued Wednesday.

Sargent said the plaintiffs failed to object to the jury instruction despite having the opportunity at a charging conference. As Sargent put it, plaintiffs trial counsel said the error-in-judgment charge was sometimes applicable and sometimes not.

In ruling the plaintiffs had objected to the charge, the Superior Court erred, Sargent said.

Rieders said he was surprised to hear that argument from his opponent, though; according to his review of the record, there were four occasions on which the Passarellos’ trial lawyer lodged an objection.

According to court records, the Passarellos brought their son to Grumbine and Blair Medical and had contacted Grumbine’s office multiple times after his birth. They complained he was barely eating, crying after feedings, had a slight cough and was vomiting.

Grumbine said Anthony Passarello’s symptoms were consistent with gastroesophageal reflux and prescribed medicines accordingly. She also immunized him for DPT, polio, haemophilus influenzae type B, hepatitis B and pneumococcus.

On August 2, 2001, the Passarellos called Blair Medical’s “tele-a-nurse” phone service and reported Anthony Passarello’s formula consumption had decreased. He was fussy, not sleeping and was screaming as if in pain. He also only wet his diapers twice that day and had a 101-degree fever despite taking Tylenol every four hours, according to court papers.

Grumbine said the symptoms were probably reactions from the immunizations and perhaps pain from acid reflux. The Passarellos took Anthony Passarello to the emergency room at Altoona Hospital where he was found to be in severe respiratory distress. Despite intubation and the use of a ventilator, Anthony Passarello died August 4. An autopsy revealed the cause of death to be diffuse acute viral myocarditis, court papers said.

Superior Court Judge John T. Bender, in his opinion last year, said the trial judge’s jury instruction during the trial introduced Grumbine’s state of mind as an element for the jury’s consideration.

Such a charge attenuated the objective standard of care imposed by Pennsylvania law “and obfuscated the manner in which the jury might properly weigh the evidence,” Bender said.

Read more about it in Friday’s Legal.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.