An explicit instruction on “error in judgment” may not be given in a medical malpractice case because it exposes jurors to a subjective standard, a deeply divided state Supreme Court has ruled.
“If a defendant desires an instruction that conveys the principle that an unfortunate result does not by itself establish negligence, he or she may request from the trial court an instruction, in the appropriate case, that an unfortunate result does not by itself establish negligence,” Justice Seamus P. McCaffery said for the four-justice majority in Passarello v. Grumbine. “There is no need to resort to the use of ambiguous and problematic phrases such as ‘error in judgment’ or ‘mistake in judgment.’”
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