In most medical malpractice cases, the default defense is: “medicine is so complex and mysterious that there is no standard by which the doctor can be judged, and thus they cannot be liable.” The lawyers for the doctor or hospital (and their experts) rarely say it outright — because they are worried that jurors and judges will see right through it as a claim that doctors can never be held accountable for anything — but this defense is embedded deeply in most of the arguments they make for the jury. It doesn’t matter if the doctor made an obvious mistake, or if the doctor violated multiple standard guidelines.
Consider this closing argument made by a doctor’s lawyer in the case of Passarello v. Grumbine:
Now every physician must use clinical judgment. You don’t practice medicine by textbook. There’s no guideline that you can go to. You don’t have something on your blackberry well there’s this symptom and this symptom so we’re gonna do this. They have to make decisions. A physician cannot warrant care and they cannot guarantee outcomes because of the uniqueness of treating human beings. To require otherwise, to require physicians to be perfect, is an impossible burden and we—the law recognizes that we will not do that. When you look at [the doctor’s] judgments, were they careless, were they unskilled? When you come to the key issue, the August 2 phone call, she had to use her judgment, and if her judgment was reasonable, then she was not careless and she was not unskilled.
Part of that argument is correct: physicians can’t “guarantee outcomes.” But part of it is terribly misleading: in a medical negligence trial, the question isn’t whether physicians are “perfect,” or “careless,” or “unskilled,” or whether they “use[d] her judgment,” or whether “her judgment was reasonable.” The question is if the physician failed to follow the standard of care demanded of them.
As the Pennsylvania Superior Court concluded, “What counsel’s argument skillfully suggests is that regardless of the objective standard of care, [the doctor], in an exercise of continued self-sacrifice, acted with the best of intentions and made judgments for which she could not be faulted, in part because they were judgments and a physician cannot warrant care.” The defendants’ argument, in turn, played into a jury instruction the judge was giving, which included this language: “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.”
Continue Reading A Doctor’s “Mistake” or “Error in Judgment” Can Still Be Malpractice