How does the exercise of professional judgment come into play when determining the standard of care? Day v. Johnson, No. 098SC879 Colo. Sup. Ct., May 2011, addresses this question. The plaintiff was diagnosed with hypothyroidism and a nodule on the left lobe of her thyroid gland. The defendant determined that both lobes needed to be excised. The patient suffered from postsurgical bleeding causing tracheal edema that necessitated being place on a ventilator for a week. A few weeks later, the patient’s vocal chords stopped moving; she could not breath and required an emergency tracheotomy, resulting in a permanent speaking disability. The trial court found for the defendant, the plaintiff appealed on the basis that 1 jury instruction was incorrect, the appellate court affirmed the trial court, and this appeal ensued.

The following jury instruction, among others, was given. It stated in part that an “exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician was negligent.” At issue was whether Colorado Jury Instruction-Civ. 15:4, dealing with “unsuccessful outcome/exercise of judgment,” correctly stated the law as applied to medical malpractice actions. It states that a physician does not guarantee or promise a successful outcome by simply treating or agreeing to treat a patient; an unsuccessful outcome does not, by itself, mean that a physician was negligent; and an exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician was negligent.

Both parties tendered jury instructions that included the first 2 sentences. The defendant added the third, and the plaintiff objected. The trial court admitted the third sentence. The plaintiff argued that the third sentence “(1) conflicted with the standard of care by introducing subjectivity into an objective standard of care; (2) was duplicative; (3) commented on the evidence; (4) overemphasized the defense’s theory of the case; and (5) was not supported by the evidence.”

The court began its analysis with the basic elements that must be proved by the plaintiff in any malpractice case: that the doctor has a duty to adhere to a legally established standard of care, that the doctor breached that duty, that the patient suffered an injury, and that the doctor’s breach of the defined duty was the direct or proximate cause of the injury sustained by the patient. The doctor-patient relationship is quasi-contractual. Unless specific results have been contracted for, all a doctor is required to do is to “(1) possess that reasonable degree of learning and skill which is ordinarily possessed by others of the profession; (2) . . . use reasonable and ordinary care and diligence in the exercise of his skill and the application of his knowledge to accomplish the purpose for which he is employed; and (3) . . . use his best judgment in the application of his skill in deciding upon the nature of the injury and the best mode of treatment.” In addition, the court noted that “if a physician possesses ordinary skill and exercises ordinary care in applying it, he is not responsible for a mistake of judgment.” However, to use the defense of “mistake in judgment,” the doctor must use “reasonable care in exercising that judgment.”

The court noted that, because modern medical malpractice jurisprudence holds that a poor outcome is not in and of itself evidence of negligence, the plaintiff must provide evidence that the defendant “failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by the defendant. . . . . That standard of care is measured by whether a reasonably careful physician of the same school of medicine as the defendant would have acted in the same manner as did the defendant in treating and caring for the patient. . . . Thus, the standard of care for medical malpractice is an objective one.” The plaintiff’s argument was that the third sentence failed to define both judgment and the exercise of judgment; in addition, the third sentence “interjects a subjective analysis in an otherwise objective standard of care.”

The plaintiff argued that the jury had no way to determine what judgment means in the context of medical malpractice. Okay, fair enough. The court in dismissing this argument noted that the word is one “with which reasonable persons of common intelligence would be familiar, and its meaning is not so technical or mysterious as to create confusion in juror’s minds as to its meaning.” In addition, at the trial, each party presented expert testimony as to the definition of judgment from its own perspective, thus giving the jury the contextual usage in the practice of medicine.

The plaintiff made the same argument for the phrase “exercise of judgment.” The court in dismissing that claim stated:

The “exercise of judgment” phrase . . . distinguishes the situation in which no exercise of judgment is at issue—such as a claim for negligence in which the plaintiff asserts a slip of the knife—from the situation in which the exercise of judgment forms the basis for the negligence action—such as the case here in which the plaintiff asserts improper diagnosis and improper choice between alternative treatment options. Indeed, at times a physician must choose among professionally acceptable alternative diagnoses or therapeutic alternatives and those choices may form the basis for a negligence claim. CJI-Civ. 15:4 is the only instance of the model instructions addressing the issue of alternative treatments or judgment in medical malpractice. Not recognizing the role of judgment in making a diagnosis or choosing between treatment options would ignore an essential element of the practice of medicine. Still, the jury must determine under the applicable standard of care set forth in the jury instructions whether the physician’s choice was objectively reasonable. Thus, the “exercise of judgment” phrase merely refers to the fact that a physician was faced with a choice of options and had to exercise his medical judgment.

The plaintiff next argued that “exercise of judgment” encouraged the jury to focus on the subjective intent of the doctor. In analyzing this argument, the court looked at why other jurisdictions abandoned similar jury instructions and noted that they all contained subjective words, unlike the Colorado version. Examples of subjective words or phrases were noted as “good faith judgment,” “honest mistake,” “error in judgment,” “bona fide error in judgment,” and “best judgment.” The court noted that “[t]hese potentially subjective terms imply that a doctor must exercise bad faith to fail to meet the standard of care or that an exercise of good faith shields the physician from liability. It is, however, these potentially subjective terms that pose the problem rather than the mere recognition that a physician exercises judgment.”

The plaintiff’s last argument was that the jury instruction basically told the jury that “an exercise of judgment is not negligence.” Once again, the court disagreed, noting that the instruction says that “[a]n exercise of judgment that results in an unsuccessful outcome does not, by itself , mean that a physician was negligent” (emphasis added by the court). The court then said that “the phrase ‘by itself’ establishes that more than ‘an exercise of judgment that results in an unsuccessful outcome’ is required to prove a negligence claim. Thus, the instruction invokes a long standing tenet of tort and medical malpractice law—that the jury may not infer negligence from the fact of injury.” The appellate decision was affirmed.