Photo: Jason Doiy, ALM

All professionals, but in particular physicians and attorneys, exercise judgment in the practice of their profession. The present version of the Model Jury Charge for medical judgment recognizes a physician is entitled to exercise judgment in deciding which of multiple treatment plans is best for the patient: “A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis/treatment choices must be in accordance with accepted standards of medical practice.” M.J.C. 5.50G, Medical Judgment (June 2014).

The medical malpractice charge explains that the jury must focus on and decide “whether accepted standards of medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice.”

In contrast, the present version of the legal malpractice charge M.J.C. 5.51A, Legal Malpractice (approved June 1979), which has not been revised in 40 years, still uses the “mistake or error” language long ago rejected in medical malpractice cases:

Where, according to standard legal practice, the work involves matters to be subjected to the judgment of the attorney, an attorney must be allowed the exercise of that judgment and he/she cannot be held liable if, in the exercise of that judgment, he/she has, nevertheless, made a mistake or an error in judgment.

The present legal practice model jury charge needs to be updated.

This is best understood after a brief review of the evolution of the “judgment charge” in medical malpractice cases. The relationship between the standard of care and the physician's exercise of judgment was perhaps first recognized in Schueler v. Strelinger, 43 N.J. 330 (1964), involving a patient who bled to death during an operation. One of the issues in this case was whether a blood clotting test should have been repeated before the procedure. The Supreme Court observed that the defendant was confronted with a difficult choice, i.e., operate and risk the patient's death from the surgery, or do not operate and risk the patient's death from the underlying condition. The court concluded that if each treatment option was consistent with an accepted standard of care, the physician could not be deemed negligent for choosing an acceptable option. Schueler was perhaps the first case to explain that “medicine is not an exact science. Consequently it does not make the physician a guarantor of the cure of his patient.”  The court instructed “if the doctor has brought the requisite degree of care and skill to his patient, he is not liable simply because of failure to cure or for bad results that may follow.”

However, the Schueler court added the following statement which then was incorporated verbatim in the Model Jury Charge on medical malpractice:

Nor in such case is he liable for an honest mistake in diagnosis or in judgment as to the course of treatment taken. A physician must be allowed a wide range in the reasonable exercise of judgment. He is not guilty of malpractice so long as he employs such judgment, and that judgment does not represent a departure from the requirements of accepted medical practice.

The Schueler-based version of the Model Jury Charge on judgment eventually came under criticism. See, e.g., Dorothy E. Bolinsky, New Jersey's Medical Malpractice Model Jury Instruction: @#!$%*, Comprehensible to the Jury? 28 Rutgers L.J. 261 (1996). Plaintiffs contended that the “honest  mistake” language and the phrase “exercise of judgment” were confusing.

In Morlino v. Medical Center of Ocean County, 152 N.J. 563 (1998), a unanimous Supreme Court agreed and instructed the Civil Model Charge Committee to revise the Judgment Charge. In Morlino, the defendant prescribed Ciprofloxacin to a woman who was in her eighth month of pregnancy. The defendant concluded that the risks to the fetus by the untreated infection outweighed the risks associated with the Ciprofloxacin. Tragically, the fetus died, and plaintiff sued the defendant. The court rejected the argument that the use of the term “exercise of judgment” might confuse jurors. However, the court held that the use of the word “mistake” in the charge must be eliminated:

One sentence in the Model Charge is problematic. The sentence reads, 'The physician cannot be held liable if, in the exercise of his judgment, he nevertheless made a mistake …. The danger is that the sentence could be construed to mean that an honest, but mistaken, exercise of judgment insulates the physician from liability for a mistake that violates a relevant standard of care. A mistake, however, connotes an instance in which the physician violates such a standard of care.

Morlino at 588-589, emphasis added. Concluding that the Civil Model Jury Charge “may benefit from review,” the court remanded Model Charge 5.36A (now 5.50A) to the Civil Model Jury Charges committee, instructing that the sentence involving the “honest mistake” should be eliminated, and the entire charge should be “shorter and clearer.” Id. at 590.

The Charge Committee promptly revised the Model Charge, removing the judgment language from 5.50A and creating a new charge, 5.50G. Medical Judgment, which is quoted in full at the beginning of this article. In a footnote, the Charge Committee explained that “If a case does not involve a legitimate judgment call or two schools of thought, then the trial judge should omit this portion of the charge.” The footnote cited Velazquez v. Portadin, 163 N.J. 677 (2000), where the Supreme Court instructed that the judgment charge should be “limited to cases in which the physician exercised judgment in selecting among acceptable courses of action.” The courts have since restricted the use of the judgment charge. See, e.g., Patton v. Amblo, 314 N.J. Super. 1, 9 (App. Div. 1998) (judgment not applicable to claim scalpel incision was too deep); or Adams v. Cooper Hosp., 295 N.J. Super. 5, 10-11, (App. Div.1996) certif. denied, 148 N.J. 463 (1997) (judgment not applicable to claim nurse did not monitor patient.)

However, as noted above,  the present version of the model jury charge for legal malpractice, M.J.C. 5.51A, Legal Malpractice, has not been similarly revised. This jury charge still contains the “mistake” language explicitly rejected by the Supreme Court in Morlino. In addition to instructing a jury that a lawyer “cannot be held liable if, in the exercise of that judgment, he/she has, nevertheless, made a mistake or an error in judgment,” the present legal malpractice charge compounds the confusion by adding: “The attorney is not an insurer, nor is he/she liable for every error in judgment or mistake. On the one hand, he/she is not to be held accountable for the consequences of every act which may be held to be an error by a court.”

These statements are similar to those sentences criticized by the Supreme Court in Morlino, and subsequently excised from the old model jury charge. As the Morlino court explained, “A mistake, however, connotes an instance in which the physician violates such a standard of care.”

The “mistake” language quoted above is particularly confusing. For example, if a judge dismisses a legal malpractice case because of the failure to serve an affidavit of merit, may the attorney responsible for preparing the case successfully defend a malpractice claim by asserting that in the attorney's judgment the case did not require an affidavit of merit because of the common knowledge exception? What about a case that was dismissed because the statute of limitations had expired prior to the filing of the complaint? May the attorney handling the case successfully defend by asserting that, in the attorney's judgment, the discovery rule had tolled the statute of limitations? The issue is further confused by the sentence in the legal malpractice charge which states that a  lawyer “is not to be held accountable for the consequences of every act which may be held to be an error by a court.” Although portions of the legal malpractice charge correctly state the law, the quoted sections of the present legal malpractice charge are misleading at best and should be similarly removed. Attorneys pursuing legal malpractice cases would be well advised to utilize the language contained in model jury charge 5.50A.

Jon Lomurro, Gary Riveles and Abbott Brown are co-authors of New Jersey Medical Malpractice Law (9th Ed. 2020). Lomurro and Brown are partners at Lomurro, Munson, Comer, Brown & Schottland in Freehold, and Riveles is a partner at MacNeill, O'Neill & Riveles in Cedar Knolls.