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Judgment: Giving deference to physicians’ decisions in medicalmalpractice cases
Surgeons should be able to demonstrate that thoughtful consideration wasgiven to all reasonable treatment options available for the patient.
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In medical malpractice litigation the word “judgment” is frequently used in arguments by defense attorneys to show that the defendant physician exercised reasonable clinical judgment. The word implies immunity from liability since “judgment” decisions are thought to be acceptable by the peer medical community. In theory at least, even the most egregious medical conduct could be dismissed as a “judgment” decision on the part of the treating physician.
 B. Sonny Bal |
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But, the question in professional malpractice suits turns not on whether a physician has made a mistake in choosing a treatment option, but upon whether the physician has exercised ordinary care. To show that ordinary care was exercised, a physician is not required to use the highest degree of care possible; instead the physician should be able to show that he/she has that degree of learning and skill possessed by other physicians practicing in the same specialty or discipline.
Thus, medical malpractice law requires a physician to base any professional decision upon reasonable skill, care, and careful study and consideration of the factual circumstances and data pertaining to a case.
Exercise of judgment
In terms of the exercise of judgment, the law requires only that the judgment be bona fide. The term bona fide refers to good faith, or the mental or moral state of honesty, and conviction to the truth or falsehood of a proposition or opinion regarding conduct, even if such conviction is objectively unfounded. The law validates the bona fide judgment of a physician, because it recognizes that physicians are not insurers or guarantors of the accuracy and correctness of medical judgment. A medical practitioner is therefore not responsible for a mistake in judgment, but the limit of this proposition is that the mistake cannot be so gross that it makes professional conduct substandard.
The substandard nature of conduct is measured by the so-called standard of care pertaining to each medical specialty, and jurors are supposed to learn of this standard through expert witness testimony. Thus, the objective standard of a physician’s professional judgment is relevant, rather than the subjective best judgment that may be exercised under the circumstances.
The above concepts may seem like a tortured exercise in legal semantics, but there is a practical implication of relevance to the clinical scenario. Essentially, an error of judgment regarding a diagnosis or a treatment method does not lead to liability when the physician’s conduct falls within a range of acceptable alternatives. This is an important concept; a physician reviewing the records of a colleague may disagree with the chosen treatment, implants, surgical approach, anticoagulation protocol, or even the perioperative care used by the original treating doctor.
When reviewing a record, one should remember that there may be treatment protocols outside one’s own sphere of knowledge and understanding, and that when a physician has two or more possible courses of treatment, that physician is not negligent in selecting one of the methods recognized in the profession at the time and place of treatment, even if subsequent events show that the choice was not the best, and even though a reviewing physician would clearly have chosen a different option.
Trap of hindsight
Whether a medical provider being sued for malpractice exercised reasonable judgment must be considered in relation to the facts as they existed at the time the judgment was made, and not in light of what hindsight might have revealed. The trap of hindsight is an easy one to fall into, and can lead to unwarranted criticism of the chosen treatment.
On the other hand, an exercise of professional medical judgment is not considered bona fide and cannot serve to protect the physician from liability unless it is founded on intelligence, skill, knowledge, diligence and care.
Consider for example the case of the patient who post surgically manifests a low-grade fever and purulent discharge draining from the wound. The orthopedic surgeon failed to culture the wound, and discharged the patient with a fever. Subsequent events led to a number of complications, ultimately ending with an amputation from untreated osteomyelitis.
Can the orthopedic surgeon defend his or her professional conduct by claiming that the decision not to culture the wound and work-up the fever was a “judgment” decision? The answer to this question may be found in the case of Spadaccini v. Dolan in which the court addressed the medical liability issues inherent in the term “judgment”.
In Spadaccini, a 47 year-old man was admitted to the hospital for Ludwig’s Angina, a severe infection of the mouth marked by swelling in the mandibular and hypoglossal area. Caused by a dental procedure, it has the potential to compromise the oropharyngeal airway. Typically a tracheotomy is performed or the patient is monitored closely in an ICU setting. In this case, neither a prophylactic nor a postoperative tracheotomy was performed, and the hospital had no ICU. The patient went into postoperative respiratory arrest and was comatose 21 days before dying. The family filed a malpractice lawsuit.
Error of judgment
The case went to trial and at the close of the evidence; the defense attorney requested that the trial court instruct the jury that his client should not be found liable if his decision was an “error in judgment.” Specifically, he asked that the judge instruct the jury, “If you find there was an error of judgment made by the defendant, you are not to infer or attribute negligence from such mere error of judgment since the standard of care … allows for error of judgment …” The court refused the instruction and the jury returned a verdict for the plaintiff, which was affirmed by the appellate court.
The appellate court held that the “error in judgment” instruction does not have to be delivered by a trial court in all medical liability cases. The court reasoned that physicians and surgeons are often confronted with legitimate, competing treatment choices, and that they should be protected from liability when they make a choice between these alternatives. The failure to provide physicians and surgeons with protection from such judgment calls could unfairly result in liability when the patient is not helped (or even harmed) by a treatment choice that might be different from that chosen by a colleague.
Make notes
The appellate court noted in Spadaccini that there were three alternatives to protect the patient in question from respiratory arrest: prophylactic tracheotomy, postoperative tracheotomy, or ICU monitoring. When the surgeon selected none of the alternatives, he failed to take any action to protect the patient from a known, potentially fatal complication. The appellate court held that the error in judgment instruction applied only in “… Cases in which there is evidence that the defendant physician chose among several medically acceptable treatment alternatives.”
The Spadaccini decision presents orthopedic surgeons with an uncommon opportunity to prevent the filing of successful medical malpractice claims. When confronted with an important clinical decision it is essential to briefly note in the medical record the reasoning behind this decision. It may be important in the note to identify the dilemma, the risks and benefits of the available treatment options, and the rationale behind the orthopedic surgeon’s recommendation.
In most clinical scenarios there are no perfect decisions available, and proper choices are rarely obvious unless viewed in retrospect. The most important factor in reducing malpractice losses is for an orthopedic surgeon to demonstrate that he or she has thoughtfully considered all the reasonable alternatives, and has reasoned through the consequences of his or her decision. The mere fact that a patient suffers a bad outcome does not vitiate the orthopedic surgeon’s defense that he or she should be immune from liability from a “judgment decision.”
For more information:
- B. Sonny Bal, MD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
- Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.