The Massachusetts intermediate appellate court stated in its May 28, 2021 opinion: “The primary issue on appeal is whether the trial judge erred in giving an “errors of judgment” instruction that informs a jury in a medical malpractice case that an error of judgment by a doctor is not negligent if the doctor’s decision was within the standard of care. Put another way, such an instruction informs a jury that a doctor faced with multiple treatment options, all within the standard of care, is not liable for negligence if the doctor chooses an option that leads to an adverse outcome. Concluding that such an instruction correctly reflects Massachusetts law, and that the plaintiff’s remaining challenges to the specific wording of the instruction have been waived, we affirm.”
The Underlying Facts
On August 16, 2013, just before 1 a.m., plaintiff Jennifer Paiva presented at the emergency room with sudden onset abdominal pain, which began about an hour before she arrived. Paiva had a history of gastric bypass surgery and a hernia repair, and had had her gall bladder removed two weeks earlier. Ultimately, her symptoms, including nausea, vomiting, diarrhea, and severe abdominal pain, led defendant Randy Kaplan, M.D. to believe that there might be an issue of bowel ischemia (or a blockage of blood to the intestines).
Shortly after 1 a.m., Dr. Kaplan ordered an abdominal and pelvic computed tomography (CT) scan with contrast in an effort to determine the cause of the pain. The report from the CT scan indicated that findings were “worrisome for ischemic bowel,” and possibly small bowel obstruction. After Dr. Kaplan had a discussion with the bariatric surgeon at Tobey Hospital, an order was entered to transfer the patient by ambulance for surgery. The surgeon determined that Paiva, in fact, did suffer from an ischemic bowel, which was caused by a hernia. The surgeon removed twenty-five inches of small bowel. Paiva asserted that she suffers severe and permanent disabilities as a result of this episode.
The main dispute at trial was whether Dr. Kaplan acted within the standard of care by ordering the CT scan and waiting for the results, or whether he instead should have contacted a surgeon earlier.
The trial judge instructed the jury, over the objection of the plaintiff: “part of the standard of care is that the physician will use his or her judgment in accordance with accepted medical practice for a physician in the same area of specialty. If, in retrospect, the physician’s judgment was incorrect, it is not, in and of itself, enough to prove medical malpractice or negligence. Doctors are allowed a range in the reasonable exercise of professional judgment and they are not liable for mere errors of judgment so long as that judgment does not represent a departure from the standard of care resulting in a failure to do something that the standard of care requires or in doing something that should not be done under the standard of care. In other words, a doctor is liable for errors of judgment only if those errors represent a departure from the standard of care.”
The Massachusetts medical malpractice jury returned a defense verdict, and the plaintiff appealed.
The Massachusetts appellate court stated: “Massachusetts is in the group of States that recognizes the utility of an “errors in judgment” instruction. If properly formulated, such an instruction focuses the jury’s attention on the standard of care, rather than the particular results in a case. The instruction also recognizes the reality that, like all professionals, medical professionals need to make judgment calls between various acceptable courses of actions and they should not be found liable unless those judgment calls fall outside the standard of care.”
The Massachusetts appellate court stated: “the judge directed the jury to the standard of care, correctly conveying the concept that, so long as the doctor’s actions were consistent with the standard of care, any errors of judgment are not negligent. The judge’s instructions accurately stated the law in Massachusetts on the standard of care in a medical malpractice case, and properly discussed a physician’s judgment as important to consider in determining whether a physician was negligent.”
However, the Massachusetts appellate court also stated: “Although we agree that the judge properly instructed the jury on the concept that errors in judgment are not negligent if they are within the standard of care, that does not mean that we necessarily approve of the precise manner in which the instruction was formulated here … [a] party’s objection to an instruction does not relieve that party of the obligation to assist the judge by objecting to any errors in the language of the instruction. If the party fails to do so, the party may not on appeal quibble about the specific language used by the judge.”
Source Paiva v. Kaplan, No. 19-P-1789.
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