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Mistake of Judgment Instruction

The "mistake of judgment" instruction was recognized as valid by various states:

Hunsaker v. Bozeman Deaconess Found., 179 Mont. 305, 588 P.2d 493, 506-07 (Mont. 1978) (approving instruction that "an unsuccessful effort, a mistake, or an error in judgment is not necessarily negligent");

Morlino, 706 A.2d at 730-34 (refusing to excise "mistake of judgment" from model jury charge for standard of care in medical malpractice cases and discussing continued validity of allowing jury to consider physician's "judgment" provided such evaluation is without reference to concepts of "good faith" and "honesty");

Brault v. Kenmore Mercy Hosp., 142 A.D.2d 945, 530 N.Y.S.2d 369, 370 (N.Y. App. Div. 1988) (affirming use of "error of judgment" instruction where evidence presented that "treating physician, in the exercise of his professional judgment, chose among several medically acceptable courses of treatment");

Graham v. Keuchel, 847 P.2d 342, 356 (Okla. 1993) (refusing to rule that "mistake of judgment" instructions are impermissible and finding only that instruction should not have been given based on lack of evidence concerning "choice of several alternatives, equally acceptable medically");

Roach v. Hockey, 53 Ore. App. 710, 634 P.2d 249, 252 (Or. Ct. App. 1981) (approving "mistake of judgment" instruction and stating that "it is clear that a physician is not liable for an error of judgment where there is a reasonable doubt or a difference of opinion as to the nature of the patient's condition or the proper course of treatment and the physician acts with reasonable care and skill in exercising that judgment");

Havasy v. Resnick, 415 Pa. Super. 480, 609 A.2d 1326, 1335-36 (Pa. Super. Ct. 1992) (upholding "mistake of judgment" instruction and explaining that "instruction was appropriate because of expert testimony that compartment syndrome is often difficult to diagnose early"); Fitzgerald v. Vincent, 1997 (finding that "error of judgment instruction may be used to supplement the standard of care instruction and should be given with caution and 'be limited to situations where the doctor is confronted with a choice among competing therapeutic techniques or among medical diagnoses'") (quoting Watson, 727 P.2d at 674).