The “Error in Judgment” Rule Exposed – and Rejected

The "error in judgment" rule in Tennessee medical malpractice cases is perhaps the most unfair principle of the common law of torts.  The rule was conceived in recognition of the fact that there may be more than one right way to approach a medical issue – the "two schools of thought" principle.  This narrow application of the rule makes sense.  For example,  in most cases, a surgeon can do a cervical laminectomy utilizing a posterior approach or an anterior approach.  Both carry certain risks and have certain benefits, but as long as informed consent is obtained and both approaches are reasonable for that patient, a surgeon should not be held accountable for doing one approach rather than the other.

But the error in judgment rule has been bastardized to give it the potential to gut most medical malpractice claims in Tennessee.  Here is the jury charge on the subject in Tennessee:

 By undertaking treatment a physician does not guarantee a good result.  A physician is not negligent merely because of an unsuccessful result or an error in judgment.  An injury alone does not raise a presumption of the physician’s negligence.  It is negligence, however, if the error of judgment or lack of success is due to a failure to have and use the required knowledge, care and skill as defined in these instructions.

T.P.I.- Civil 6.12

See the problem?  The instruction gives defense counsel the ability to argue that the health care provider gets a get-out-of-jail free for failure to follow the standard of care IF the violation involved any judgment whatsoever.  And, since by definition judgment is a key component of what most professionals do every day, the medical judgment rule has been morphed into the "escape responsibility for malpractice" rule.

This opinion from Pennsylvania describes all of this and prohibits the application of error in judgment rule in virtually every case.  (It leaves open the issue in true "two schools of thought" cases – see FN 15.)  The opinion has a nice summary of law from around the country on this issue and serves as a great starting point for research for those seeking to overrule existing law in Tennessee.

Tennessee should do the same.  I encourage all lawyers who represent patients in Tennessee health care liability cases to preserve this issue for appellate review.  The "error in judgment" rule needs to be relegated to the ash heap of history.

Click on the link for Tennessee cases on the "error in judgment" rule.