According to a September 19, 2011 article entitled "'Error In Judgment' Defense Ban Applies Retroactively" by Gina Passarella in The Legal Intelligencer, the Pennsylvania Superior Court recently ruled in the medical malpractice case of Passarello v. Grumbine, 2011 WL 3963587 (Pa.Super. Sept. 9, 2011 Ford Elliott, Bender, Strassburger, J.)(opinion by Bender, J.), that its earlier ruling banning medical malpractice defendants from relying on an "error in judgment" defense at trial can be applied retroactively in certain cases.
The prior decision referenced in which this ruling was first handed down was the Superior Court case of Pringle v. Rappaport, 980 A.2d 159 (Pa.Super. 2009), alloc. denied, 987 A.2d 162 (Pa. 2009). In Pringle, the Pennsylvania Superior Court reviewed the history of the error in judgment rule and ruled that it was no longer valid in Pennsylvania due to its inconsistency with the 'standard of care' analysis utilized in medical malpractice cases.
Here's a link to a prior Tort Talk post on the Pringle v. Rappaport decision:
http://www.torttalk.com/2009/09/recent-medical-malpractice-case-of-note.html
In the recent decision of Passarello, the Superior Court held that its prior ruling in Pringle would only apply retroactively to those cases where the final judgment of the verdict had not been entered before the 2009 filing date of the Pringle decision. The Court noted in its opinion that the number of prior cases that may arise as a result of this retroactive application of the rule of law is also limited by the fact that parties would have been required to preserved their challenge to the error in judgment rule through an objection at a prior trial. If that was not done, then those cases would apparently not be heard on appeal in this regard.
Here is a link to the Passarello decision online:
http://www.pacourts.us/OpPosting/Superior/out/a20029_11.pdf
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