Mistake of Judgment: Calling Out for Clarity

Originally, mistake-of-judgment charges were given in failure-to-diagnose cases where parties presented evidence about the existence of two or more equally viable alternatives for treatment or diagnosis. See Nestorowich v. Ricotta, 97 N.Y.2d 393, 400 (N.Y. 2002). This benign and legally appropriate charge has at times been manipulated into an exculpatory instruction for professional malfeasance, and is offered even in cases where the alleged negligence did not involve an error in judgment, but rather an error in the mechanism of treatment. See Nestorowich (discussing mistake-in-judgment charge erroneously given in case where the alleged negligence was a physician's mistake in ligating a renal artery that he thought was a vessel supplying blood to plaintiff's tumor). Defense attorneys often attempt to use the rule as a talisman throughout the case, masking professional negligence underneath the guise of professional judgment. See, e.g. Das v. Thani, 171 N.J. 518, 528-29, 795 A.2d 876, 883 (“Defense counsel, 'knowing the power of the judgment charge, took every opportunity to lead the court and jury into thinking that the entire case revolved around the exercise of judgment'.”).

As courts across the country have come to recognize, mistake-of-judgment instructions can be abused, and not all medical decision-making should qualify as “judgment calls.” For instance, in Havasy v. Resnick, 609 A.2d 1326, 1336 (Pa. Super. 1992), the Pennsylvania Superior Court held, “[The law] is not to say that a physician cannot be liable for a mistake of judgment or misdiagnosis. He is clearly liable if his mistake reflects a failure to follow proper practice and thereby violates the standard of care required of physicians. Id. (Emphasis added).