New Hampshire Personal Injury Lawyers

An Error of Judgment, even in Good Faith, is not a Defense to a Medical Injury Claim

By Francis G. Murphy and Michael P. Hall

Most of the disputes in the world arise from words.
LORD Mansfield, C.J.

It is one of the misfortunes of the law that
ideas become encysted in phrases and thereafter
for a long time cease to provoke further analysis.
HOLMES, J., Hyde v. U.S., 225 U.S. 347, 391 (1912)

I. Introduction.

Instructing the jury is one of the most important functions of a trial court. A trial judge has a duty to instruct the jury with precision and clarity as to the rules of law applicable to the issues raised at trial so that the jury is neither misled nor confused.1

Defendants in medical malpractice cases in New Hampshire have sometimes argued and requested instructions suggesting that liability may not be based on a good faith error of judgment, citing the case of Leighton v. Sargent2 as authority. The "error of judgment" instruction has even found its way into the proposed New Hampshire Superior Court Civil Jury Instructions authored by Murphy and Pope, § 13.3. For the reasons that follow, the "error of judgment" defense is inconsistent with the elements of the statutory cause of action in medical negligence cases. Accordingly, no argument or instruction referencing this defense should be provided to the jury.


I. The "Error Of Judgment" Defense Is Inconsistent With RSA Chapter 507-E.
Civil Jury Instruction No. 13.3 provides:
13.3 Negligence: Standard of Care

In determining whether or not the defendant was negligent, you must measure his/her performance against what a professional who possessed the knowledge and exercised the care and skill of the ordinary average practitioner of his/her specialty. Outstanding knowledge, skill and care are not required. A mere error in judgment, made in the proper exercise of judgment is not professional negligence.

In this case, the standard by which the conduct of the defendant is to be judged is whether or not he/she possessed the knowledge and exercised the skill and care of a reasonably careful physician/surgeon/dentist (or _________) during the period in question in the same or similar circumstances.3

As noted in the preface to the proposed New Hampshire Superior Court Civil Jury Instructions, however, those instructions have neither been submitted to nor approved by the New Hampshire Supreme Court nor the New Hampshire Superior Court . . . .4

Moreover, the preface admonishes:

[I]t is the responsibility of trial counsel in any particular case to aid the court in its function of instructing the jury by submitting Requests for Jury Instructions for the court's review. The [proposed] instructions . . . are designed to serve as guidelines to that end, but are by no means to be relied upon as the final word on the subject, at least unless and until the Supreme Court has had the opportunity to rule on them in the context of a case on Appellate Review.5
Because it is clear that our model civil jury instructions are not binding authority, plaintiff's counsel should vigorously resist the use of the foregoing instruction.

A. The Elements of a Medical Injury Action.

RSA Chapter 507-E, by its terms, supersedes all common law causes of action for medical negligence through its definition of a "medical injury." The term "medical injury" is defined broadly to include "any adverse, untoward or undesired consequences arising out of or sustained in the course of professional services rendered by a medical care provider. . . ."6

The requisite elements of a plaintiff's claim for "medical injury" are prescribed by statute, R.S.A. 507-E:2. In relevant part, R.S.A. 507-E:2 provides:

In any action for medical personal injury, the plaintiff shall have the burden of proving by affirmative evidence consisting of the expert testimony of a competent witness or witnesses:

(a) The standard of reasonable professional practice in the medical care provider's profession or specialty thereof, if any, at the time the medical care in question was rendered; and

(b) That the medical care provider failed to act in accordance with such standard; and

(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

In short, the plaintiff must prove through expert testimony that the defendant medical provider failed to act in accordance with the following standard: "The standard of reasonable professional practice in the medical care provider's profession or specialty thereof, if any, at the time of the medical care in question was rendered."7
Under R.S.A. 507-E:2, therefore, it is clear that defendants in medical injury actions are liable for errors of judgment if such errors of judgment were not in accordance with standards of reasonable professional practice. Therefore, any argument or evidence by the medical providers suggesting that they enjoy immunity for errors of judgment or that they are somehow absolved from liability for errors of judgment is contrary to the clear intent of R.S.A. 507-E:2. Consequently, it will likely confuse and mislead the jury about the proper legal standard controlling the jury's verdict in this case.

B. Even Before RSA Chapter 507-E, the Supreme Court Rejected A Standard Based on Judgment Alone.

The New Hampshire Supreme Court, even before the adoption of RSA Chapter 507-E, determined that the codification of the relevant standards of professional practice, in R.S.A. 508:13,8supersedes the generic, common law "error of judgment" defense. See Morrill v. Tilney.9

In Morrill, the defendant doctor argued that "the case should have been taken from the jury because the alleged malpractice was really a question of professional judgment."10 The defense relied on dicta in Leighton wherein the Court observed that a professional is not liable for "errors of judgment."11

The New Hampshire Supreme Court in Morrill rejected the defendant's argument, finding that "the modern standard of care for professional malpractice is more clearly reflected in R.S.A. 508:13. . . ."12 Although the Court found that certain language of Leighton (quoted below) was not inconsistent with the statute, R.S.A. 508:13,13defining the standard of care for professional practice, it is clear that the Court was expressing a preference for the statutory language.14 The Court observed:

“We do not think this standard [set forth in RSA 508:13] is inconsistent with that articulated in Leighton, in which the court noted that a plaintiff 'must . . . prove . . . that the defendant . . . undertook to act as a physician, without the education, knowledge and skill which entitled him to act in that capacity . . . or . . . that having such knowledge and skill, he neglected to apply them with such care and diligence as in his judgment, properly exercised, the case must have appeared to require; in other words, that he neglected the proper treatment from inattention or carelessness.'"15

Indeed, the Supreme Court in Morrill did not affirm the "error of judgment" dicta in Leighton, but rather cited that portion of the case discussing the elements of a common law professional negligence claim, which required the plaintiff to
prove . . . that the defendant . . . undertook to act as a physician, without the education, knowledge and skill which entitled him to act in that capacity . . . or . . . that having such knowledge and skill, he neglected to apply them with such care and diligence as in his judgment, properly exercised, the case must have appeared to require; in other words, that he neglected the proper treatment from inattention and carelessness.16

III. Out of State Case Law Generally Rejects An Error of Judgment Instruction.


Courts that have allowed instructions on "errors of judgment" have emphasized that such instructions may only be given when warranted by the factual circumstances of the case.17 Those circumstances generally arise in cases of "alternative treatment" in which more than one treatment is generally acceptable. As reasoned in such cases, if a doctor selects any one of the acceptable options and carries it out with due care, he will not be negligent even though, in hindsight, a different selection among the options may have been more successful.18

In Graham v. Keuchel,19the Oklahoma Supreme Court held that the instruction on medical judgment was erroneous because there was "no proof" that the defendant doctors "had the choice of several alternatives, equally acceptable medically, and elected one which later proved to be less effective than another might have been."20 Conversely, in Ouellette v. Subak,21the instruction on medical judgment was found to be appropriate because the evidence showed that the defendant doctors were receiving conflicting information regarding the patient's condition. The treatment decision, therefore, depended on "an exercise of their judgment at a time when a reasonable doubt existed as to the stage of the pregnancy and what should be done."22 In Vasquez v. Markin23 the court found the instruction to be warranted but commented that it should only be given "with caution" where a doctor is "confronted with a choice among competing therapeutic techniques or among medical diagnoses."24

Numerous courts that have considered challenges to "error of judgment" instructions have held that such charges should never be given because they tend to confuse the jury by suggesting that some types of negligence are excusable.25 Other courts have held that such instructions actually misstate the law to the extent that they suggest that doctors cannot be held liable for errors resulting from exercises in judgment.26

Courts that have abandoned the instruction on the basis of potential confusion frequently express concern that the instruction suggests "conflicting" or "disjunctive" standards of proof on the duty of care.27 In other words, instructing the jury that the exercise of good faith would exonerate the defendant is to imply that the plaintiff has the burden of proving not only a breach of the standard of care but also bad faith. This reasoning was noted by the court in Logan v. Greenwich Hospital Association,28 which abandoned the use of such instruction.

In Logan, the Connecticut Supreme Court considered a charge that a physician is not liable for a "bona fide error in judgment" provided he uses reasonable care. After noting that similar instructions had been upheld in prior Connecticut cases, the court nevertheless disapproved the charge, stating:

We agree with the plaintiff, nevertheless, that to use such a phrase in a charge upon negligence serves only to confuse a jury by implying that only an error in judgment made in bad faith can be actionable. The central issue in the ordinary negligence case is whether the defendant has deviated from the required standard of reasonable care, not his mental state at the time of the conduct which constitutes the deviation.29

The decision in Rogers v. Meridian Park Hospital,30 disposed of an instruction for reasons similar to those given by the court in Logan. There the court rejected a charge that a physician is only liable for an error of judgment resulting from a failure to act with reasonable care.

The challenged instruction obscures the fact that, to avoid liability, the defendant must exercise the degree of care, skill, and diligence required by law . . . [the instruction] makes it appear that reasonable judgment is the crucial issue. It is not. In fact, reasonable judgment is irrelevant if the treatment option selected provides reasonable care. . . .

. . .

...[T]he court should not instruct the jury in . . . terms [such as 'exercise of judgment']; such instructions not only confuse, but they are also incorrect because they suggest that substandard conduct is permissible if it is garbed as an "exercise of judgment."31


Another court has expressed concern that terms like "honest" and "good faith" are inappropriate because they suggest a subjective standard, while the standard of care for physicians is an objective one.32 Such criticism is apt in the light of the reference in New Hampshire's model instruction to errors made in the "proper exercise of judgment." See Proposed Civil Jury Instruction No. 13.3 (emphasis added).

Even courts which have upheld instructions on medical judgment have imposed strict limitations on their form due to the potential for confusion. In Ouellette v. Subak,33 the Minnesota Supreme Court held that such instructions are not erroneous per se but that they should not contain subjective words such as "honest" or "good faith". Rather, the court held that the jury should be instructed as follows:

A doctor is not negligent simply because his or her efforts prove unsuccessful. The fact [that] a doctor may have chosen a method of treatment that later proves to be unsuccessful is not negligence if the treatment was an accepted treatment on the basis of the information available to the doctor at the time a choice had to be made; a doctor must, however, use reasonable care to obtain the information needed to exercise his or her professional judgment, and an unsuccessful method of treatment chosen because a failure to use such reasonable care would be negligence.34


The Rhode Island Supreme Court recently held that a trial judge committed reversible error by instructing the jury in a medical negligence action that the defendant could not be liable for honest mistakes or errors in judgment. See DiFranco v. Klein.35 The plaintiffs in DiFranco brought claims against a physician and a hospital, alleging the negligent use of forceps during the delivery of their child. The plaintiffs appealed from a defendants' verdict, arguing that the trial judge had confused the jury on the negligence issue by instructing that "a physician is not liable for damages resulting from an honest mistake or error in judgment."36

The defense on appeal pointed to an older line of Rhode Island cases that held that a physician may not be held liable if he or she exercises the applicable degree of care in choosing between differing but accepted methods of treatment. The court pointed out that the foregoing rule became known as the "medical judgment" or "error in judgment" doctrine. The court reaffirmed the validity of the rule of law, interpreting it to mean that a doctor is not negligent in choosing a treatment that later proves to be unsuccessful so long as the treatment was an appropriate treatment based on the information then available to a reasonably prudent doctor in like circumstances.

Nevertheless, the court ruled that phrases such as "good faith," "good faith judgment," "honest mistake," and "honest error in judgment" used in the jury instruction had confused the jurors by erroneously implying that only dishonest or bad faith deviations from the proper standard of care amounted to negligence. Beyond that "to the extent such phrases inject the physician's subjective intent or belief into the applicable standard of care as a relevant factor, they misstate the pertinent law."37

Accordingly, the court reversed "because these phrases unduly confuse the issues in a negligence action by obscuring and misstating the physician's obligation to utilize the degree of care, skill, and diligence required by law."38

IV. CONCLUSION

There are at least four reasons why both defense counsel's argument and the Trial Court's instructions as to the "error of judgment" defense should not be made or submitted to the jury: First, because existing common law regarding medical negligence claims, which, arguably supported the defense, has been replaced by the codification of the law regarding medical injury claims in R.S.A. Chapter 507-E; Second, because the defense impermissibly injects a subjective element into the claim; Third, because the defense is confusing to the jury; and Fourth, because the New Hampshire Supreme Court has impliedly rejected the common-law "error of judgment" defense.39

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