The Judgment Defense in Medical Malpractice

Abstract

In medical malpractice litigation, one well-recognized defense is that the physician or surgeon was simply using his or her best judgment, such that an adverse outcome was simply a matter of probability. In fact, the shielding of physicians and surgeons from legal liability under circumstances where it is clear that prudent professional judgment was exercised is a time-honored principle of American jurisprudence. To wit, in 1898, the court in the legal case of Pike v Honsinger set forth the principle that a physician or surgeon would not be “… liable for a mere error of judgment, provided he does what he thinks is best after careful examination” [1]. The Pike case dealt with a poor outcome from closed treatment of a patella fracture. This “error of judgment” doctrine became part of American legal thinking, and at first glance, its application appears straightforward. If the physician did the best that a similarly-situated professional could under the circumstances, there should be no legal liability for an adverse outcome, when that outcome arose despite reasoned decision-making among competing treatment alternatives. Like most legal doctrines, however, the so-called “error of judgment” defense is more complex than it may first appear. This complexity begins with defining what “judgment” means in the context of a professional liability lawsuit. As an egregious example, if an orthopaedic surgeon were to operate on the wrong limb, one could argue that the surgeon made a judgment not to confirm which extremity to operate on. The law certainly does not contemplate that such judgment errors should be protected. Given the definitional ambiguity surrounding the word “judgment,” the inevitable question that this article will attempt to address, is: Can courts develop a rational and fair jurisprudence around the meaning of “judgment” in professional liability cases?