Saturday, September 5, 2009

Recent Medical Malpractice Case of Note

The following recent medical malpractice case of note was identified in the August 31, 2009 Case Digests of the Pennsylvania Law Weekly. A copy of the cases may be obtained for a small fee by calling the Law Weekly at 1-800-276-7427 and giving the PICS Case Numbers noted below. I have also provided the Westlaw citation:

Pringle v. Rapaport, 2009 WL 2710221, PICS Case No. 09-1436 (Pa. Super. Aug. 31, 2009) Donohue, J.; Orie Melvin, J. (47 pages).

HOLDING: An “error of judgment” jury instruction is inappropriate in a medical malpractice case.

Dr. Rapaport delivered the Pringles’ child on July 31, 2002. During the delivery, the baby's shoulder became stuck behind is mother’s pubic bone, a condition called shoulder dystocia. Dr. Rapaport tried different maneuvers to remedy the situation, and the one that worked was a corkscrew procedure that involved manual turning of Austin’s shoulders.

However, the baby allegedly suffered nerve damage to the brachial plexus allegedly caused by tearing of tissue and nerves, and leading to paralysis of his right arm as a result of the doctor's maneuvers. The Pringles brought a medical malpractice action against Rapaport.

At trial, all experts agreed the procedure was acceptable, the decision to use it appropriate in the circumstances, and that the proper amount of force to apply when using the procedure was a learned skill. All of the experts further agreed that it turned out in hindsight the amount of force used here was too much. Yet, the experts disagreed with whether the procedure was performed negligently.

At the close of the case, the trial court gave a jury instruction that “physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake in judgment.” The jury returned a defense verdict.

On appeal, the Superior Court acknowledged that there had been earlier decisions suggesting an “error of judgment” defense and/or instruction was appropriate, but the Court also stated that issues were confused and that there were inconsistent rulings from its own panels in the past. It here held such an instruction was inappropriate,

The Superior Court in Pringle first explained the instruction wrongly suggested to the jury that a physician is not culpable for negligent exercise of judgment. The Court further faulted the instruction for injecting a subjective element into the objective test of standard of care.

In dissent, Judge Orie Melvin stated that the Supreme Court had never repudiated the use of such a charge. Nevertheless, the majority concluded that an "error of judgment" instruction is inappropriate in a medical malpractice case. As such, the defense verdict was reversed and the case was remanded for further proceedings.

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