“Error in Judgment” and Informed Consent

By Alex Stein

When conventional standards of practice allow a physician to choose between two or more ways to treat or diagnose a patient, she is free to select any of those ways. The fact that her chosen procedure subsequently proves inferior to the alternatives and works badly for the patient is of no consequence: the physician would not be liable for malpractice because malpractice accusations only attach to actions and not to consequences. Whether a physician did or did not deliver substandard treatment to the patient must be determined prospectively (ex ante) rather than by hindsight (ex post). Because a medically approved procedure that proves inferior to another recommended procedure appears negligent, jurors must receive an effective warning against this misleading appearance. How to best administer this warning is a matter of split among state courts.

In some states, courts give jurors the traditional “error in judgment” instruction which explains the difference between errors ex ante that constitute malpractice and errors ex post that do not. See, e.g., Nestorowich v. Ricotta, 767 N.E.2d 125, 126-30 (N.Y. 2002) (holding that “error in judgment” instruction is part of New York medical malpractice law and clarifying that it only applies to doctors’ choices and not to mechanical errors in procedures).

Other states have abandoned this instruction for being misleading in that it suggests that a doctor who treats her patient in good faith can never commit malpractice. In these states, courts simply ask jurors to evaluate the doctor’s performance prospectively (by whether her chosen procedure was medically recommended) rather than retrospectively. See, e.g., Pringle v. Rapaport, 980 A.2d 159 (Pa. Super. 2009). Finally, another group of states have taken an in-between position, persuasively explained by the South Dakota Supreme Court in Papke v. Harbert, 738 N.W.2d 510 (S.D. 2007). There, courts give jurors the “error in judgment” instruction only under special circumstances that call for that instruction to avoid hindsight bias.

Last week’s Washington Supreme Court decision, Fergen v. Sestero, — P.3d —- (Wash. 2015), 2015 WL 1086516, is a case in point. This consolidated case involved the following sets of facts:

Case #1

A physician found a small lump on the patient’s ankle. The lump was causing the patient slight discomfort, but otherwise appeared benign. The physician followed the protocols. He ordered an X ray to make sure there were no structural defects in the ankle area, referred the patient to an orthopedic specialist, and instructed him to follow up with his office as necessary.

Approximately 13 months later, the patient was diagnosed with Ewing’s sarcoma, a rare and aggressive form of metastatic cancer that originated in the lump on his ankle. This cancer could not be stopped and the patient died. Arguably, if the physician were to immediately prescribe ultrasound and biopsy—the medically recommended procedures to rule out cancer—the patient would have had a good chance to survive.

Case #2

A patient was treated by hospital doctors for a lower leg injury from a soccer game. He complained about persistent and worsening pain and increasing firmness in his injured leg. The doctors followed their clinical guidelines that did not include measuring the pressure in the leg to rule out compartment syndrome. Ultimately, the patient was diagnosed with that syndrome which resulted in permanent foot drop injury.

The Court ruled that each of these cases called for the “error in judgment” instruction (known in Washington as “exercise of judgment”) and dismissed the patients’ appeals against unfavorable verdicts. This ruling was based on Washington’s in-between approach and it triggered a dissent that called for the instruction’s abolition. The dissent argued that the instruction is “confusing, unfair, and inconsistent with the modern practice of giving [jurors] only basic, neutral instructions.”

I believe that the in-between approach makes a lot of sense, but my goal here is not to argue in its favor. Rather, my goal here is to draw the reader’s attention to the hitherto unexplored connection between “error in judgment” and the rules of informed consent. The Court was right to affirm the “error in judgment” instruction that exonerated the physicians in both cases. However, these physicians also had a duty to tell the patients about the availability of more comprehensive diagnostic alternatives which they chose not to pursue. Both physicians seem to have breached that duty, but the patients did not sue them for that breach (the Court’s decision doesn’t indicate that they did). This suit, unlike that for diagnostic negligence, strikes me as very promising.

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