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An explicit instruction on “error in judgment” may not be given in a medical malpractice case because it exposes jurors to a subjective standard, a deeply divided state Supreme Court has ruled.

“If a defendant desires an instruction that conveys the principle that an unfortunate result does not by itself establish negligence, he or she may request from the trial court an instruction, in the appropriate case, that an unfortunate result does not by itself establish negligence,” Justice Seamus P. McCaffery said for the four-justice majority in Passarello v. Grumbine. “There is no need to resort to the use of ambiguous and problematic phrases such as ‘error in judgment’ or ‘mistake in judgment.’”

The ruling has one of the attorneys in the case calling the decision “one of the most important medical malpractice cases” in his lifetime, serving to promote the fact that the standard of care, and not a doctor’s intent, is how the delivery of health care should be judged in a medical malpractice action.

Medical malpractice actions “are always defended by saying ‘this doctor meant well,’” said Clifford Rieders, one of the plaintiffs attorneys in Passarello. “In every case, in every jurisdiction in the United States, that defense is made. What this opinion says is that is not appropriate. It has no place.”

In Passarello, a three-judge state Superior Court panel granted a new trial to the parents and estate of a two-month-old baby who died from a heart infection while in the care of Dr. Rowena Grumbine and Blair Medical Associates, according to court papers.

The court retroactively applied its 2009 ruling in Pringle v. Rapaport, which banned the error-in-judgment defense in medical malpractice cases. Such a defense stands for the argument that doctors are not liable for errors in their judgment when making medical decisions if their care otherwise met the standard of care.

In Passarello, as in Pringle, the trial judge gave a jury instruction beyond the standard-of-care instruction and also discussed the error-in-judgment rule.

“‘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,’” Superior Court Judge John T. Bender said, quoting the Blair County trial judge’s jury instruction in Passarello.

The jury eventually handed up a defense verdict in the case.

Bender 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,” he had said.

“Dr. Grumbine’s counsel, fully aware that the error-in-judgment instruction would be given, primed the jury to receive it by repeatedly emphasizing the role of judgment in a physician’s decision-making process,” Bender had said. “In addition, and perhaps more consequentially, counsel focused the jury’s attention on Dr. Grumbine’s subjective state of mind, casting her conduct during the requisite period as a matter of whether she had behaved conscientiously, i.e., whether she did her best.”

In his majority opinion, McCaffery said the Supreme Court’s committee on proposed standard civil jury instructions decided not to include an error-in-judgment instruction because, while it may illustrate the standard of care, it comes with the potential to confuse a jury. McCaffery said the instruction doesn’t articulate any additional or independent requirement of the standard of care in medical malpractice cases.

“Because appellants have failed to advance a convincing argument against the weight of opinion that error-in-judgment instructions pose palpable and substantial risks of confusing juries with respect to the standard of care in medical malpractice cases, and because appellants have illustrated, rather than refuted, the lack of any necessity to use error-in-judgment instructions, we see no reason to disturb the well-considered holding of the Superior Court that error-in-judgment instructions should not be used in jury charges in medical malpractice cases,” McCaffery said.

McCaffery further ruled that the Pringle decision could be applied retroactively. In a footnote to his opinion, he also noted that the court was not addressing in this case the “two schools of thought” doctrine.

Justices Max Baer, Debra M. Todd and Correale F. Stevens joined McCaffery in the majority. Justice Thomas G. Saylor wrote a two-page concurring and dissenting opinion to note he would only apply Pringle prospectively and to note that he didn’t think a brief reference to errors in judgment in an otherwise appropriate jury instruction was as impactful as the majority suggested.

But Saylor said he would agree with the majority on that point based on the possibility of some uncertainty or confusion for the jury.

Chief Justice Ronald D. Castille wrote a dissenting opinion and joined in a separate dissent written by Justice J. Michael Eakin. Castille said in his opinion that there are instances where the error-in-judgment instruction is inappropriate, particularly in actions involving “straight negligence claims” that the doctor’s care fell below the standard of care. Castille gave as an example a doctor who leaves a piece of surgical equipment in a patient.

While an error-in-judgment instruction would not be appropriate in that case, it may be appropriate in a case where a doctor had more than one potential path to follow in treating a patient and made a judgment call that arguably fell within the standard of care but turned out to be wrong, Castille said.

“It is only when a physician acts within the standard of care that a mere error in judgment can excuse liability,” Castille said. “This matter is just such a case, and the trial court’s charge in this instance allowed the jury to determine if Dr. Grumbine’s exercise of judgment was within the standard of care.”

Eakin said the Passarellos waived their argument by failing to object to the alleged “inherently confusing” jury charge on that ground at trial. Eakin further noted he thought Pringle and Passarello were distinguishable.

The Passarellos had brought their son, Anthony Passarello, to Grumbine and Blair Medical and had contacted Grumbine’s office multiple times after his May 31, 2001, birth, complaining that he was barely eating, was crying after feedings, had a slight cough and was vomiting.

Grumbine said Anthony’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 Aug. 2, the Passarellos called Blair Medical’s “tele-a-nurse” phone service and reported Anthony’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 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 died Aug. 4. An autopsy revealed the cause of death to be diffuse acute viral myocarditis, court papers said.

The Passarellos were represented by Rieders on appeal to the Supreme Court and by Donald J. Feinberg at the Superior Court. Rieders said the case will have an impact beyond medical malpractice cases to other professional liability matters.

Feinberg said if a court were to have allowed into evidence what a doctor was thinking, any doctor could avoid liability by saying he or she thought his or her course of action was the right course.

Attorneys from Lamb McErlane and Davies, McFarland & Carroll represented Grumbine. James C. Sargent of Lamb McErlane declined to comment without first checking with his client. John W. Jordan IV of Matis Baum O’Connor represented Blair Medical and did not return a call for comment.

The Pennsylvania Medical Society and the Pennsylvania Association for Justice each filed amicus briefs in the case.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.

(Copies of the 55-page opinion in Passarello v. Grumbine, PICS No. 14-0193, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •