Justices to consider 'error in judgment' medical malpractice defense
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The state Supreme Court has agreed to hear arguments over whether medical malpractice defendants may rely on an "error in judgment" defense at trial.
The court issued two orders May 23 separately granting the petitions for allowance of appeal of defendants Rowena T. Grumbine and Blair Medical Associates Inc.
In Passarello v. Grumbine, a three-judge state Superior Court panel granted a new trial to the parents and estate of a 2-month-old baby who died while in the care of Dr. Grumbine and Blair Medical, 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.
Defendants in medical malpractice cases historically argued that an "error in judgment" does not constitute negligence.
"In this instance, we find no impediment to retroactive application of the holding in Pringle," Judge John T. Bender wrote for the court panel.
The court 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.
In Passarello, like 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,'" Judge Bender wrote, quoting the Blair County trial judge's jury instruction in Passarello. The jury eventually sided with the defense in the case.
But the Superior Court granted plaintiffs Stephen and Nicole Passarello -- who sued Dr. Grumbine and Blair Medical after their son died of diffuse acute viral myocarditis, a viral infection of the heart muscle -- a new trial based on this instruction and defense counsel's arguments, which Judge Bender said "exploited" the trial judge's jury charge.
The Passarellos had brought their son, Anthony Passarello, to Dr. Grumbine and Blair Medical and had contacted Dr. Grumbine's office multiple times after his birth, complaining that he was barely eating, was crying after feedings, had a slight cough and was vomiting.
Dr. Grumbine said Anthony Passarello's symptoms were consistent with gastroesophageal reflux and prescribed medicines accordingly.
On Aug. 2, the Passarellos took Anthony Passarello to the emergency room where he was found to be in severe respiratory distress. He died Aug. 4. An autopsy revealed the cause of death to be diffuse acute viral myocarditis, court papers said.
Judge Bender said the trial judge's jury instruction introduced Dr. Grumbine's state of mind as an element for the jury's consideration.
"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," Judge Bender said.
Judge Bender repeated in his opinion a portion of Dr. Grumbine's counsel's arguments to the jury in which the attorney asked the jury if taking time to talk to the parents on a Sunday and opening the office early on a Monday was careless behavior. The attorney said requiring doctors to be perfect is impossible, according to the opinion.
"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," Judge Bender said.
The Supreme Court, per Blair Medical's petition, will now consider whether that retroactive application of Pringle violated its own 1997 ruling in Cleveland v. Johns-Manville. The high court has also granted Blair Medical's request to consider whether trial judges ever have the discretion to instruct juries in medical malpractice cases that doctors are not liable for non-negligent errors of judgment.
First Published June 11, 2012 12:00 am