Pennsylvania Supreme Court Revisits Discarded Defense For Doctors

Author: Marc L. Penchansky

A physician-defendant in a Pennsylvania medical malpractice case was previously entitled to a jury instruction regarding the “error in judgment” defense.  A jury was instructed that if a physician used his best judgment, exercised reasonable care and had the requisite knowledge or ability, the physician is not negligent even if complications occurred.  In 2009, the Superior Court of Pennsylvania ruled that the “’error of judgment’ instruction . . . does not inform jurors on the applicable standard of care and instead tends only to confuse, rather than clarify, the issues the jury must decide . . . .”   See Pringle v. Rapaport, 980 A.2d. 159 (Pa. Super 2009).[1]  The Supreme Court of Pennsylvania refused to hear the appeal in Pringle. 

In 2011, the Superior Court applied its holding in Pringle retroactively.  See Passarello v. Grumbine, M.D., 29 A.3d 1158, 2011 PA Super 199 (2001).[2]   Last Friday, the Supreme Court of Pennsylvania agreed to hear the appeal in Passarello.  The Supreme Court specifically agreed to determine the vitality of the error in judgment instruction[3] and if the prohibition survives, whether it should be applied retroactively.[4] 


Soon after, the Superior Court reached its decision in Passarello, McCumber Daniels attorney, John McGreevey, authored an article on the “error in judgment” instruction and the implications of Pringle and Passarello  His article, Don’t Take Away My Error in Judgment, can be found here.[5]



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