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Mistake of Judgment: Calling Out for Clarity

By J. Scott Kramer and Helena Ciechanowski

In medical malpractice cases, it is a matter of hornbook law that health care providers bear no liability for poor outcomes resulting from the exercise of professional judgment, as long as they adhere to the relevant standard of care. In an attempt to facilitate jurors' understanding of this concept, courts across the country have given “mistake” or “error-of-judgment” charges, which typically instruct the jury that physicians are entitled to exercise their professional judgment in choosing either of two reasonable options.

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'.”).

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