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| Ischemic bowel in CT scan (image by James Heilman, MD, CC BY-SA 3.0) |
The plaintiff-patient presented at the emergency room at 1 a.m. in severe abdominal pain and with a history of gastric bypass surgery and hernia repair. The defendant-doctor correctly suspected ischemic bowel, a blood blockage, and, at 3 a.m., sent the patient for a CT scan. Based on the scan results, the doctor, at 4:23 a.m., ordered the patient to surgery, which commenced by 6:30 a.m.
The court summarized, "The main dispute at trial was whether [the doctor] 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." On appeal from judgment entered for the doctor, the plaintiff charged that the jury was erroneously instructed to allow for error in the doctor's professional judgment.
Tracking model jury instructions (p. 5), the trial judge had instructed, inter alia:
"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."
In affirming for the doctor, the court upheld the instruction. The court reviewed a range of approaches in other states to "error of judgment" instruction in medical malpractice cases. Hawaii and Oregon, for example, reject the instruction as posing too great a risk of confusion for the jury. California accords with the Massachusetts position. Other states, such as New York, use the instruction "only where there is evidence at trial that the physician chose from one of several medically acceptable alternatives." In defense of the Massachusetts position, the court reasoned:
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 range of approaches demonstrates civil courts' long struggle with hindsight bias, especially in medical malpractice. Hindsight bias is a natural human tendency to overestimate one's ability to make a decision correctly when viewing the decision as if in the past, ignorant of consequences, but from a perspective in the present, informed, in fact, by subsequently acquired information. Shankar Vedantam talked about the problem on The Hidden Brain podcast in 2020.
Hindsight bias is not unique to medical malpractice, nor even to tort law. Psychologists have documented hindsight bias in "accounting and auditing decisions, athletic competition, and political strategy," besides medicine. As I wrote in a book on legal pedagogy in 2019, the cartoon South Park even invented a character, Captain Hindsight, to make fun of the human foible. Hindsight bias inevitably contaminates every tort case, and countering it often is an appropriate strategy in legal argument and jury instruction. For a juror, like any decision maker, it is difficult to reconstruct a past decision to the complete exclusion of undesired consequences.
The problem is exaggerated in the medical context because of the simplicity of the doctor-patient relationship. A patient sees a doctor for one purpose, exclusively: to get better. A doctor has one and only one job: to heal. When healing is not the result that a patient experiences, and the jury has knowledge of that consequence, it is deceptively easy for jurors to confuse the doctor's failure to heal with a departure from the standard of care. The Massachusetts instruction is designed to clarify the distinction for jurors.
The case is Paiva v. Kaplan, No. 19-P-1789 (Mass. App. Ct. May 28, 2021). Justice Joseph M. Ditkoff authored the opinion of the unanimous panel that also comprised Justices Vuono and Milkey. In a former post as general counsel of the District Court, Justice Ditkoff's responsibilities included drafting standardized jury instructions.
