In Dupuy v. Allara, 193 W. Va. 557, 457 S.E.2d 494 (1995), this Court again examined, and approved, the giving of a "mistake of judgment" instruction where the plaintiffs asserted that a correct and timely diagnosis would have prevented cardiac failure and its consequences.
In Allara, we pointed out that in Wang this Court sanctioned the use of such an instruction for the resident doctor who examined the child, treated him, and failed to diagnose Kawaski's disease. Id. at 561, 457 S.E.2d at 498.
In upholding the giving of the "mistake of judgment" instruction in Allara, this Court focused on the fact that evidence was admitted at trial that "'many physicians in this particular situation would not have diagnosed the illness under these circumstances,' and that 'endocarditis can be difficult to diagnose.'" Id.
In examining case law from other jurisdictions, it is clear that a movement has begun towards eradication of certain language typically contained in "mistake of judgment" or "error of judgment" instructions or elimination of those instructions in their entirety.
Those courts that have rejected use of a "mistake of judgment" instruction have done so based on the inclusion of adjectival terms such as "honest," "bona fide," "good faith," or "best" in reference to the issue of a physician's exercise of judgment.
The theory underlying the disapproval of such terms is that they wrongly inject subjectivity into what is otherwise viewed as an objective standard of care issue. See generally Joseph H. King, Jr., Reconciling the Exercise of Judgment and the Objective Standard of Care in Medical Malpractice, 52 Okla. L. Rev. 49 (1999). Courts and commentators have been troubled by the potential for jury confusion through the suggestion that, if the doctor in his own mind was making the "best" judgment regarding a method of treatment, the jury might be wrongly persuaded to find in the doctor's favor even though that subjective "best" judgment was in fact below accepted standard of care levels.
Put another way, some courts view such instructions as problematic because they "erroneously imply that only dishonest or bad-faith deviations from the applicable standard of care constitute actionable negligence. " DiFranco v. Klein, 657 A.2d 145, 148 (R.I. 1995).
Shumaker v. Johnson, 571 So. 2d 991, 994-95 (Ala. 1990) (rejecting use of "good faith" mistake in judgment instruction based on possibility of juror confusion and extending ruling to instructions couched in terms of "honest mistake" or "bona fide error");
Logan v. Greenwich Hosp. Ass'n, 191 Conn. 282, 465 A.2d 294, 303 (Conn. 1983) (disapproving "bona fide error in judgment" instruction because of implication that only errors in judgment made in bad faith can be actionable);
Riggins v. Mauriello, 603 A.2d 827, 830-31 (Del. Super. Ct. 1992) (holding that "mere error of judgment" language impermissibly permits jury to conclude that physician is not liable for malpractice despite negligent administration of medical treatment);
Veliz v. American Hosp., Inc., 414 So. 2d 226, 227-28 (Fla. Dist. Ct. App. 1982) (rejecting use of "honest errors of judgment" language in defining nurse's negligence);
Leazer v. Kiefer, 120 Idaho 902, 821 P.2d 957, 964-67 (Idaho 1991) (reversing on grounds that "error in judgment" instruction implied that liability can be escaped through physician's exercise of "best judgment" in diagnosing and treating patient );
Peters ex rel. Peters v. Vander Kooi, 494 N.W.2d 708, 711-13 (Iowa 1993) (disapproving instructions addressing standard of care in terms of "honest error of judgment" as wrongful comments on evidence);
Ouellette ex rel. Ouellete v. Subak, 391 N.W.2d 810, 813-16 (Minn. 1986) (concluding that "mostly subjective 'honest error in judgment' language is inappropriate in defining scope of the professional's duty" but refusing to reject use of "honest error" rule on grounds that where "there are two methods of treatment for a particular medical condition, both accepted by the medical profession, . . . the doctor's choice of either is, ordinarily, not negligence" );
Parodi v. Washoe Med. Ctr., Inc., 111 Nev. 365, 892 P.2d 588, 591 (Nev. 1995) (finding error in giving of "error in judgment" instruction phrased in terms of exercise of "best judgment" and identifying "growing number of courts that have rejected error-in-judgment instruction");
Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571, 577 (N.C. 1984) (holding that defining physician's liability for medical negligence in terms of "honest error" is potentially misleading and therefore inappropriate);
Kurzner v. Sanders, 89 Ohio App. 3d 674, 627 N.E.2d 564, 568-69 (Ohio Ct. App. 1993) (ruling that "honest error or mistake in judgment" instruction was prejudicial as it conflicted with objective standard of care);
Rogers v. Meridian Park Hosp., 307 Ore. 612, 772 P.2d 929, 932-33 (Or. 1989) (rejecting use of "reasonable judgment" where varying treatment options exist and further viewing as confusing the excusal from liability where physician acts with reasonable care and skill in exercising such judgment);
DiFranco v. Klein, 657 A.2d 145, 147-48 (R.I. 1995) (rejecting use of "good faith" in "error in judgment" instruction, but upholding use of such instructions as valid statement of physician's liability for choosing an acceptable method of treatment that later proves to be unsuccessful);
Shamburger v. Behrens, 380 N.W.2d 659, 663 (S.D. 1986) (finding that use of "good faith error in judgment" language in instruction was confusing);
Rooney v. Medical Ctr. Hosp., 162 Vt. 513, 649 A.2d 756, 760-61 (Vt. 1994) (finding error in use of "best judgment" and "mere error of judgment" instruction since statutorily-defined standard of care is stated in objective terms);
Teh Len Chu v. Fairfax Emergency Medical Assocs., 223 Va. 383, 290 S.E.2d 820, 822 (Va. 1982) (holding that terms such as "bona fide error" or "honest mistake" have no place in instructions dealing with negligence in medical malpractice actions);
Watson v. Hockett, 107 Wn.2d 158, 727 P.2d 669, 673-74 (Wash. 1986) (ruling that use of word "honest" should be stricken because it imparts argumentative aspect to jury charges on standard of care, but otherwise approving "error in judgment" instruction where physician "is confronted with a choice among competing therapeutic techniques or among medical diagnoses");
17. Kobos ex rel. Kobos v. Everts, 768 P.2d 534, 536-39 (Wyo. 1989) (disavowing use of "honest judgment" in terms of defining physician's standard of care, but noting that "error of judgment" charge may be appropriate where alternate treatment exists).