PENNSYLVANIA RECORD

The Pennsylvania Superior Court has retroactively applied a ruling banning medical malpractice defendants from relying on an “error in judgment” defense at trial.

A three-judge panel granted a new trial in the case of <em>Passarello v. Grumbine</em>. The ruling will apply retroactively only to those cases in which the final judgment had not been entered before the 2009 filing date of an underlying case, <em>Pringle v. Rappaport</em>, which invalidated the error of judgment defense in Pennsylvania.

“In this instance, we find no impediment to retroactive application of the holding in Pringle [v. Rappaport ],” Judge John T. Bender wrote for the court. “In that case, this court, sitting en banc, explored the history of the error in judgment rule and precluded its continued use in Pennsylvania on the basis of its inconsistency with the 'standard of care' analysis on which liability in professional negligence cases depends.”

Bender also noted that it cannot be concluded that these types of cases will increase and therefore it must be applied retroactively. The two cases are similar in that the trial judge gave the jury instruction beyond the standard-of-care and, instead, mentioned 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,”’ Bender quoted the trial judge as writing.

This narrowed the objective standard of care imposed by Pennsylvania law and made the way the jury might consider the evidence a more complicated process, Bender ruled.

Bender stated that the defendant’s counsel knew that the jury would receive the “error in judgment” instruction. The defense counsel knowing this “primed the jury to receive it” because they repeatedly emphasized the role judgment plays in “a physician's decision-making process.”

According to Bender, the fact that the defense counsel emphasized that the physician was trying her best was misleading and should have been of no consequence to the jury.

“Although we might otherwise recognize such commentary as a manifestation of the broad license counsel enjoys to argue the evidence, in this case, where the argument exploits an erroneous instruction, we cannot minimize the underlying error,” Bender said.

Daniel Cummins is a defense attorney in Scranton, Pa. He said that this will not open the floodgates. But he thinks the defense should be permitted.

“From a defense attorneys’ perspective the 'error in judgment' defense should be allowed,” he said. “But the Superior Court does not think it consistent with the standard of care analysis used in medical malpractice cases in the state.”