(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that,
in the interests of brevity, portions of any opinion may not have been summarized).
Laura E. Aiello v. Muhlenberg Regional Medical Center, et al. (A-40-98)
Argued March 16, 1999 -- Decided June 29, 1999
HANDLER, J., writing for a unanimous Court.
In this medical malpractice case, the question before the Court is whether, under the facts presented,
a doctor may avoid liability for a patient's injuries because they occurred from conduct that involved the
“exercise of judgment.” The Court concludes that the case presents issues of fact that require a trial.
On September 30, 1992, Dr. Mahesh Shah performed a laparoscopic tubal ligation on Laura Aiello at
Muhlenberg Regional Medical Center. During the procedure, a Verres needle inserted by Shah in Aiello's
abdomen perforated her mesocolon and mesenteric arteries and lacerated her left iliac vein.
In performing a laparoscopic tubal ligation, a Verres needle is inserted in the patient's lower abdomen
into the peritoneal cavity, which contains the intestines, uterus, ovaries, and stomach. When the needle is
properly in position, the carbon dioxide gas is introduced into the abdominal cavity to push the intestines away
from the area. The Verres needle is then removed and a laparoscope is inserted. A second incision is made
in the upper pelvic area to introduce a cutting instrument. The laparoscope allows the doctor to view the
procedure. Sterilization is completed by a procedure that places plastic bands on the fallopian tubes.
Aiello's expert testified that Dr. Shah deviated from the acceptable standard of medical care by inserting
the Verres needle to a depth that was far beyond the operative area. Dr. Shah's expert testified that the Verres
needle could have nicked the iliac vein in the absence of negligence and that there was no evidence that Dr. Shah
had failed to conform to the accepted standard of care. The expert further noted that the insertion of the Verres
needle was a “blind procedure” that required an exercise of judgment in determining the proper angle and depth
of insertion.
Aiello sued Dr. Shah, Dr. Mabini Piezas, and the Medical Center for malpractice. The case went to
the jury with an instruction that it should consider whether Shah had exercised reasonable medical judgment.
The jury found that Shah had not deviated from accepted standards of medical care and returned a “no cause
of action” verdict in favor of the defendants.
The trial court thereafter granted Aiello's motion for a new trial on the issue of damages. The court
determined as a matter of law that the injury to Aiello's iliac vein could not have occurred without doctor
negligence. The Court also ruled that it had erred in including the “exercise of judgment” standard in its jury
instructions. Dr. Shah sought appellate review of the decision.
The Appellate Division reversed the trial court's entry of a directed verdict in favor of Aiello and
remanded the matter for entry of judgment for Shah. Judge Thomas Shebell dissented in part from the decision,
so Aiello appealed as of right to the Court.
HELD: If a physician's professional conduct implicates only the exercise of reasonable care in the performance
of a medical procedure and not the exercise of medical judgment in selecting among acceptable and medically
reasonable courses of treatment, the “exercise of judgment” rule should not be invoked.
1. In prior decisions, the Court has held that doctors are not guarantors of success in performing medical
procedures. Even good medical treatment will sometimes produce a poor result. In the absence of a deviation
from accepted medical care, a doctor should not be held liable for an honest mistake in diagnosis or in judgment
as to the course of treatment taken. The Model Jury Charge on medical malpractice actions includes these
principles in the “exercise of judgment” portion of the charge. The charge points out that doctors may not rely
on the “exercise of medical judgment” excuse to avoid liability for ordinary negligence. (Pp. 11-14)
2. The courts have consistently limited the application of the “exercise of judgment” charge to cases involving
misdiagnosis or the selection of one of two or more generally accepted courses of treatment. Dr. Shah
contended that she was entitled to this charge because she exercised judgment by deciding to convert to a
different laparascopic method after determining that the initial incision was too deep. Aiello contended that the
“exercise of judgment” charge was inappropriate because Shah's actions did not involve different choices
regarding the procedure but rather the manner in which the procedure was performed. (Pp. 15-18)
3. This case does not involve a doctor's choice between alternative courses of medical treatment. The experts
disagreed only on whether Dr. Shah acted negligently. To the extent that “judgment” was implicated, it was
descriptive only of Shah's skill in performing the procedure. (Pp. 19-22)
4. The current Model Jury Charge correctly conveys the precise use of the term “judgment” in connection with
the practice of medicine. Further, the Appellate Division correctly concluded that the issue of negligence
presented issues of fact that need to be tried to a jury. (Pp. 22-23)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and
COLEMAN join in JUSTICE HANDLER's opinion.
SUPREME COURT OF NEW JERSEY
A-
40 September Term 1998
LAURA E. AIELLO,
Plaintiff-Appellant,
v.
MUHLENBERG REGIONAL MEDICAL CENTER,
d/b/a MUHLENBERG HOSPITAL, MABINI
PIEZAS, M.D., P.A., JOHN DOE(s)
(said name(s) being fictitious and
unknown), JANE DOE(s)(said name(s)
being fictitious and unknown) and
ROE DOE(s)(said name(s) being
fictitious and unknown),
Defendants,
and
MAHESH SHAH, M.D.,
Defendant-Respondent.
Argued March 16, 1999 -- Decided
On appeal from the Superior Court, Appellate
Division.
Robert D. Farber argued the cause for
appellant.
Stephen J. Tafaro argued the cause for
respondent (Tafaro & Flynn, attorneys;
Frederick J. Hughes, Jr,, on the brief).
The opinion of the Court was delivered by
HANDLER, J.
This is a medical malpractice case that requires the Court
to address the principle of law that allows a doctor to avoid
liability for injuries to a patient resulting from medical
conduct involving the "exercise of judgment." The alleged
malpractice in this case arose out of the performance of a
medical procedure known as a laparoscopic tubal ligation. The
procedure requires the insertion of a needle into the patient's
body. The plaintiff sustained significant internal injuries when
the defendant, her surgeon, mistakenly inserted the needle
through her abdomen and beyond the operative field.
The issue is whether, under these circumstances, the court
should have instructed the jury to consider whether the doctor's
conduct in performing the medical procedure involved the
reasonable “exercise of judgment" that could be a defense or
excuse for medical “mistake;” or alternatively, whether the
performance of the medical procedure raised only the question of
the doctor's negligence or lack of reasonable professional care,
which would not provide a defense based on a “mistake” otherwise
attributable to the "exercise of judgment."
On September 30, 1992, defendant, Dr. Mahesh Shah, a specialist in obstetrics and gynecology, performed a laparoscopic tubal ligation on plaintiff, Laura Aiello, at Muhlenberg Regional Medical Center. During the procedure, a Verres needle inserted by defendant perforated plaintiff's mesocolon and mesenteric arteries and lacerated her left iliac vein.
Plaintiff commenced a medical malpractice action against Dr. Shah, another surgeon, Dr. Mabini Piezas, and Muhlenberg Regional Medical Center d/b/a Muhlenberg Hospital. Plaintiff claimed that following the surgery she suffered from chronic abdominal and pelvic pain, tingling and numbness in her left groin, and pain during intercourse.
The case was presented to a jury with an instruction that it should consider whether defendant had exercised reasonable medical judgment. The jury found that defendant had not deviated from accepted standards of medical care in treating plaintiff, and returned a no cause of action verdict in favor of defendant. Plaintiff moved for judgment notwithstanding the verdict and/or a new trial on the issue of liability pursuant to Rule 4:40-2.
The trial court thereafter granted plaintiff's motion for a new trial on the issue of damages. The court determined that, as a matter of law, the injury to plaintiff's iliac vein could not occur in the absence of negligence. The court also ruled that the jury instruction was erroneous because it included the standard of a physician's reasonable "exercise of judgment" as a possible basis for not finding defendant liable.
Defendant filed a motion for leave to appeal, which was denied by the Appellate Division. This Court subsequently granted defendant's motion for leave to appeal and summarily remanded to the Appellate Division to consider the merits.
In an unpublished per curiam opinion, the Appellate Division reversed the trial court's entry of a directed verdict in favor of plaintiff, and remanded for the entry of a no cause of action verdict. The court reasoned that “reasonable minds could differ on whether or not Dr. Shah was negligent” and that the trial judge correctly included the legal standard of a physician's "exercise of judgment" in the jury charge. Judge Shebell dissented in part, agreeing that the directed verdict should be vacated, but concluding that the trial court committed reversible error by including the “exercise of judgment” portion in the jury charge.
Plaintiff appeals to this Court as of right pursuant to Rule 2:2-1(a)(2).
This case requires an understanding of the medical procedures that were performed on plaintiff. Plaintiff first consulted Dr. Shah about replacing her I.U.D., which she used for birth control. Dr. Shah recommended sterilization as an alternative after plaintiff informed him that she was certain that she did not want to have any more children. Because plaintiff was very concerned about any scarring that could result from surgery, defendant determined that it was necessary to perform a laparoscopic tubal ligation.
A tubal ligation is a surgical procedure that is undertaken to occlude a woman's fallopian tubes, making her sterile. When performed using a laparoscope, a telescopic device that allows visual examination of the internal cavity, the procedure may be performed without significant incisions to a patient's skin, thereby avoiding scarring.
In order to perform a laparoscopic tubal ligation, a surgeon makes a small incision either in or directly below the navel and introduces a Verres needle into the abdominal cavity. The Verres needle is an instrument that has a ten-centimeters-long outer needle with a blunt protruding probe at its tip. Once the probe meets with resistance, it retracts, and a spring mechanism propels the needle forward. During a laparoscopic tubal ligation, the Verres needle is pushed through the patient's inner lining and into the peritoneal cavity, which contains the intestines, uterus, ovaries and stomach. When the needle is at that position, the abdominal cavity is insufflated with carbon dioxide gas, which pushes the intestines down and away from the area, allowing for greater instrument mobility and visualization. The Verres needle is then removed and a laparoscope is introduced into the abdomen. Next, a cutting instrument is pushed into the lower abdomen through a second incision in the upper pelvic area. Sterilization is completed by a procedure that requires placing plastic bands, called fallope rings, on the left and right fallopian tubes. This was the surgical procedure that was performed on plaintiff.
After plaintiff's tubal ligation was completed, Dr. Shah noticed that some blood had collected in plaintiff's cul-de-sac, an extension of the peritoneal cavity, which lies between the rectum and the posterior wall of the uterus. A laparotomy, that is, a surgical opening of the abdomen, was required to correct this condition. Dr. Shah performed a laparotomy assisted by Dr. Mabini Piezas.
During the laparotomy procedure, Dr. Piezas noticed a small injury to plaintiff's mesocolon and also saw that plaintiff's superior mesentery artery was lacerated and “bleeding profusely.” Dr. Piezas further noticed a hematoma, a mass of blood slightly larger than a cotton ball, on plaintiff's left iliac vein. The iliac vein is a major blood vessel found outside of the abdominal cavity, below the intestinal area and on top of the spine. Its location is outside of the operative field for a tubal ligation. Dr. Piezas sutured the superior mesenteric artery and the iliac vein to stop the bleeding.
At trial, Dr. Jeffrey L. Soffer, a board certified specialist in obstetrics and gynecology, testified as an expert witness on plaintiff's behalf. Dr. Soffer expressed the opinion that Dr. Shah deviated from the acceptable standard of care, because the Verres needle was thrust into the abdomen at a depth far beyond the operative area. According to Dr. Soffer, the Verres needle should never have been inserted beyond the abdominal cavity, and it could not have been so inserted in the absence of negligence.
Dr. Soffer testified that the pressure applied to the Verres needle to push it through the patient's inner lining is manually regulated and controlled by the physician. Dr. Soffer explained that when a Verres needle is first inserted into the abdominal cavity, the doctor should make a very shallow penetration to avoid the risk of injury because there is no carbon dioxide gas to protect the intestinal organs. On a thinner person, such as plaintiff, less pressure is needed. If the physician thrusts the Verres needle in too far, it may pierce the colon and surrounding vessels, and “do major damage to the major veins.” According to Dr. Soffer, the Verres needle should not be inserted more than two centimeters once the doctor pierces the abdominal lining. Dr. Soffer posited that the Verres needle had to have been advanced ten centimeters, about the entire length of the needle, to come into contact with plaintiff's iliac vein.
Defendant's expert, Dr. Karl G. Klinges, an obstetrician and gynecologist, testified that the Verres needle could have nicked the iliac vein even in the absence of negligence, and that there was no evidence that Dr. Shah failed to conform to the standard of care. Dr. Klinges further stated that the insertion of the Verres needle is a “blind procedure,” which required Dr. Shah to exercise judgment in determining the proper angle and depth of insertion based upon plaintiff's anatomy. According to Dr. Klinges:
You know to the best of your ability _ you know anatomy but you have a confined space you're trying to slip this needle into. There are normal variations. And even when you're sure you're putting it in the right place injuries can happen.
Dr. Klinges also explained that the procedure is even more
difficult where the patient is thin:
If the bifurcation [of the iliac vein] is a
little bit lower this iliac vein can be very
much in the midline. And if a patient is
thin the distance between . . . [the
abdominal wall and the iliac vein] can be as
little as one inch. And so if you have a
rigid abdominal wall, and even if you lift up
_ and if the umbilicus is higher and you
insert the Verres needle in the proper
direction you still could hit or nick a
branch of the iliac vein. So you can do
everything right and still get a
complication.
Following the testimony of the experts, plaintiff asked the
court to omit the “exercise of judgment” portion of the medical
malpractice jury charge, urging that there was “no question of a
judgment call in this case” because the injury occurred outside
of the operative area. The court denied plaintiff's request, but
did modify the charge in two respects. First, the court added
language to emphasize that “good faith exercise of judgment does
not insulate a defendant from liability if he did not adhere to
the standard of care.” Second, the jury was permitted to decide
whether the “exercise of judgment” rule was appropriate based on
whether the “defendant had sustained the burden of proof” in
establishing that “there were two courses of action and the
doctor chose one.” The final jury instruction read as follows:
If a physician has applied the required
knowledge, skill and care in the diagnosis
and the treatment of the patient he is not
negligent simply because a bad result has
occurred.
Likewise, where according to medical
practice the manner in which the treatment is
conducted is a matter subject to the judgment
of the physician, the physician must be
allowed to exercise that judgment. The
physician cannot be held liable if in the
exercise of judgment he has nevertheless made
a mistake. Where judgment must be exercised
the law does not require of the doctor
infallible judgment. But I want you to
understand that even a good faith exercise of
judgment does not insulate a defendant from
liability if he did not adhere to the
standard of care that was required in the
case. . . . . If, in fact, in the exercise of
his judgment a doctor selects one of two
courses of action, each of which in the
circumstances has substantial support as
proper practice by the medical profession,
the doctor cannot be found negligent if the
course chosen produces a poor result. But
that burden of proof to show you that there
were two courses of action is on the
defendant . . . . I don't recall the
evidence on that one way or the other. If
there was evidence produced to show that
there were two courses of action and the
doctor chose one, then as far as I'm
concerned the -_ if you're satisfied the
defendant has sustained the burden of proof
on that, fine. But if the defendant hasn't,
then there was only one course of conduct.
And consequently if that's so, then the
exercise of judgment that's called for in
that clause does not apply.
On the other hand, a doctor who departs
from standard medical practice where no
judgment is permitted cannot excuse himself
from the consequences by saying that it was
an exercise of his judgment. Or to state it
in a different way, if the exercise of a
doctor's judgment causes him to do that which
standard medical practice forbids, the doctor
would be negligent.
A physician must act with that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field. Walck v. Johns-Manville Prods. Corp., 56 N.J. 533, 560 (1970); Germann v. Matriss, 55 N.J. 193, 208 (1970); Schueler v. Strelinger, 43 N.J. 330, 344 (1964); Safer v. Estate of Pack, 291 N.J. Super. 619, 625 (App. Div.), certif. denied, 146 N.J. 568 (1996). Model Jury Charge 5.36A ("Model Charge"), which governs medical malpractice actions, articulates that governing standard of care: "A person who is engaged in the general practice of medicine represents that he/she or she [sic] will have and employ knowledge and skill normally possessed and used by the average physician practicing his/her profession as a general practitioner." Model Jury Charge 5.36A (Civil), 2 Medical Malpractice, Duty and Negligence (May 1997). That standard, recognizing that “medicine is not an exact science,” holds physicians responsible for their negligence without making them guarantors of the health of their patients. Schueler, supra, 43 N.J. at 344.
In respect of medical specialists, the charge provides:
Specialists in a given field of medicine represent that they will have and employ not merely the knowledge and skill of a general practitioner, but that they have and will employ knowledge and skill normally possessed and used by the average specialist in the field. Thus, when a physician holds himself/herself out as a specialist and undertakes to diagnose and treat the medical needs of a patient, the law imposes a duty upon that physician to have and to use that degree of knowledge and skill which is normally possessed and used by the average specialist in that field, having regard to the state of scientific knowledge at the time that he/she or she [sic] attended the plaintiff.
[Model Jury Charge 5.36A, supra, at
2.]
In Schueler, the Court recognized that “good [medical]
treatment will not necessarily prevent a poor result.” 43 N.J.
at 344. Accordingly, it held that a physician should not be held
liable for “an honest mistake in diagnosis or in judgment as to
the course of treatment taken.” Id. at 344-45. The Court
explained that “when a surgeon selects one of two courses . . .
either one of which has substantial support as proper practice by
the medical profession, a claim of malpractice cannot be
predicated solely on the course pursued.” Id. at 346. That is
because when “a matter [exists] about which there are differing
schools of medical opinion[,] . . . the plain inference is that
the matter must be left to the good faith judgment of the
experienced attending surgeon.” Ibid.
Those observations were incorporated in another portion of
the Model Charge, known as the "exercise of judgment"
instruction, which explains the relation of a physician's use of
judgment to the question of whether there has been a deviation
from accepted medical practice:
[W]here, according to accepted medical
practice, the manner in which diagnosis
and/or treatment is conducted is a matter
subject to the judgment of the physician, the
physician must be allowed to exercise that
judgment. The physician cannot be held
liable if in the exercise of judgment he/she
or she [sic] has, nevertheless, made a
mistake. Where judgment must be exercised,
the law does not require of the doctor
infallible judgment. [T]hus, a physician
cannot be found negligent so long as he/she
or she [sic] employs such judgment as is
allowed by accepted medical practice. If, in
fact, in the exercise of his/her judgment a
doctor selects one of two or more courses of
action, each of which in the circumstances
has substantial support as proper practice by
the medical profession, the doctor cannot be
found negligent if the course chosen produces
a poor result.
[Model Jury Charge 5.36A, supra, at
5.]
Importantly, even where a physician is permitted to exercise
medical judgment, the physician will be liable for malpractice if
the exercise of such judgment “represent[s] a departure from the
requirements of accepted medical practice.” Schueler, supra, 43
N.J. at 345. Consequently, the Model Charge provides that
doctors may not rely on the “exercise of medical judgment” excuse
to avoid liability for ordinary negligence:
[A] doctor who departs from standard medical
practice where no judgment is permitted
cannot excuse himself/herself from the
consequences by saying that it was an
exercise of his/her judgment. Or, to state
it in a different way, if the exercise of a
doctor's judgment causes him/her to do that
which standard medical practice forbids, the
doctor would be negligent. Similarly, a
doctor whose judgment causes him/her to omit
doing something which is required by standard
medical practice is also negligent.
[Model Jury Charge 5.36A, supra, at
5-6.]See footnote 1
In the wake of Schueler, supra, which first described the
relationship between medical judgment and the physician standard
of care, our courts consistently have limited the application of
the “exercise of judgment” charge to medical malpractice actions
concerning misdiagnosis or the selection of one of two or more
generally accepted courses of treatment. See Patton v. Amblo,
314 N.J. Super. 1, 9 (App. Div. 1998)(holding that doctor was not
entitled to “exercise of judgment” charge where alleged
malpractice involved making scalpel incision too deep); Crego v.
Carp,
295 N.J. Super. 565, 575-76 (App. Div. 1996)(holding that
“exercise of judgment” charge is appropriate where alleged
malpractice arose from doctor's failure to timely diagnose
ruptured Achilles tendon), certif. denied,
149 N.J. 34 (1997);
Hofstrom v. Share,
295 N.J. Super. 186, 195 (App. Div. 1996)
(upholding trial court's instruction of “exercise of judgment”
charge in misdiagnosis case), certif. denied,
148 N.J. 462
(1997); Adams v. Cooper Hosp.,
295 N.J. Super. 5, 8-9, 10-11
(App. Div. 1996) (holding that court did not err by refusing to
charge jury with “exercise of judgment” instruction where issue
was whether nurse had duty to constantly monitor patient; because
case did not involve selection between one of two courses of
treatment or two schools of thought, trial court properly omitted
“exercise of judgment” portion of charge), certif. denied,
148 N.J. 463 (1997). Indeed, the Model Charge itself was facially
limited to cases in which the physician exercised judgment in
selecting among acceptable courses of action:
If . . . in the exercise of his/her judgment
a doctor selects one of two or more courses
of action, each of which in the circumstances
has substantial support as a proper practice
by the medical profession, the doctor cannot
be found negligent if the course chosen
produces a poor result.
[Model Jury Charge 5.36A, supra, at
5.]
Patton, supra, like this case, involved the propriety of
including the “exercise of judgment” charge where the alleged act
of malpractice involved the performance of a laparoscopic tubal
ligation procedure. The plaintiff's stomach was ruptured during
the procedure. 314 N.J. Super. at 5. The plaintiff's expert
testified that the defendant had deviated from the medically
accepted standard of care by making the initial incision too
deep, such that the defendant did not feel any resistance when
she placed the Verres needle through the incision and into
plaintiff's peritoneal cavity. Id. at 6. In contrast,
defendant's experts characterized the doctor's error in incising
the skin as “a risk of the surgery,” which did not constitute
negligence. Ibid.
The defendant contended that she was entitled to the
“exercise of judgment” charge because she "chose 'from among
several accepted and recognized options in the method she
employed at surgery,'” reasoning that she exercised judgment by
deciding to convert to a different laparoscopic method after
determining that the initial incision was too deep. Id. at 9.
The plaintiff argued that the trial judge inappropriately charged
the jury with the “exercise of judgment” instruction because the
deviation did not concern “defendant's choices during the
procedure,” but rather “the manner in which the procedure was
performed.” Id. at 8.
The Appellate Division in Patton held that the court
committed reversible error by charging the jury with the
“exercise of judgment” portion without “separating out what
aspects of the surgery involved judgment and what did not.” Id.
at 9-10. The court determined that the “exercise of judgment”
charge is appropriate only “where a surgeon selects one of two
courses, 'either one of which has substantial support as proper
practice by the medical profession.'” Id. at 8 (quoting
Schueler, supra, 43 N.J. at 346). In contrast, the alleged
malpractice “dealt with the skill [with] which she performed the
surgery.” Id. at 9. Of particular relevance here, the Patton
court specifically held that no judgment was exercised when
incising the skin within the meaning of the “exercise of
judgment” charge:
Even if we accept defendant's admission that
she made her initial incision too deep, it is
clear that she did not employ any judgment
when she was incising the skin. It was not
her intention to pierce all three layers of
skin. Regardless of the method in which she
performed the incision, either by elevating
the skin prior to the initial incision or by
simply holding the skin taut, she simply cut
too deep. She did not use her judgment to
determine the depth. . . . . Her incision of
the peritoneum was a mistake and cannot be
considered an exercise of judgment.
In this case, as in Patton, the central issue concerns
whether defendant failed to exercise reasonable professional care
while performing the ligation procedure. Expert testimony
focused exclusively on whether defendant was negligent. The
Appellate Division, however, held that the “exercise of judgment”
charge was properly invoked under these circumstances. The court
reasoned that the insertion of the Verres needle into plaintiff's
closed abdomen necessitated the exercise of medical judgment
because the procedure is performed "blindly," requiring
physicians to “use judgment, based on their perceptions,
particularly the resistance or absence to resistance of the
needle, to determine when the abdominal cavity has been reached.”
The court further observed that "[a] mistake in judgment is not
tantamount to negligence. Negligence in this context is failure
to adhere to a proscribed method, protocol or procedure for
inserting Verres needles.”
The appellate court majority misinterpreted the standard
governing the application of the rule recognizing the exercise of
medical judgment. The application of the “exercise of judgment”
charge can excuse a physician for "mistakes." The rule provides
that "[t]he physician cannot be held liable if in the exercise of
judgment he/she or she [sic] has, nevertheless, made a mistake."
Model Jury Charge 5.36A, supra, at 5. In Morlino, supra, 152
N.J. at 588, we recently observed, however, that that “sentence
in the Model Charge is problematic.” We explained that
[t]he purpose of the sentence is to advise
the jury that, as between two or more courses
of action, each of which accords with
accepted medical practice, a doctor will not
be found negligent if the course of action he
or she chooses turns out to be unsuccessful.
Taken out of context, the sentence could be
understood to mean that a doctor who deviates
from the relevant standard of care is not
liable if the mistake was the result of the
exercise of medical judgment. 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.
Consequently, a physician who fails to abide
by an objective standard of care is subject
to liability even if the failure results from
the exercise of judgment.
If the exercise of judgment rule is inappropriately or
erroneously applied in a case that involves only the exercise of
reasonable care, the aspect of the rule that excuses a physician
for "mistakes" would enable the physician to avoid responsibility
for ordinary negligence. The "mistake" that inheres in
negligence, that is, the failure to exercise reasonable care, is
not the kind of mistake that is excusable. If, therefore, the
physician's professional conduct implicates only the exercise of
reasonable care in the performance of a medical procedure and not
the exercise of medical judgment in selecting among acceptable
and medically reasonable courses of treatment, the medical
judgment rule should not be invoked. The doctor's conduct in
performing the procedure must be evaluated according to the
applicable professional standard of care that is required of a
medical practitioner in the same field. E.g., Morlino, supra,
152 N.J. at 589. In that context, it is error to instruct a jury
to determine whether the defendant "exercised judgment" and may
not be responsible for mistakes.
This case does not involve a physician's choice between
alternative courses of medical treatment. No testimony was
presented suggesting that defendant should have performed the
tubal ligation using a different procedure or that the result
suffered by plaintiff was a “mistake” attributable to the
selection of one medical procedure rather than another. The
experts disagreed only on whether defendant performed the
selected procedure in a negligent manner. This testimony does
not support the “exercise of judgment” charge. E.g. Adams,
supra, 295 N.J. Super. at 11 (holding that where expert focused
on proper standard of care governing defendant's conduct, as
opposed to exercise of judgment between two accepted schools of
thought, “exercise of judgment” charge was inapplicable). The
characterization of the procedure as a "blind" one does not imply
that acceptable alternative courses of the medical treatment were
available. Rather, it is a factor that should be considered in
determining whether the skill exhibited by defendant in
effectuating the procedure was reasonable and in accordance with
the professional standard of care applicable to similarly
qualified physicians. To the extent that “judgment” was
implicated, it was descriptive only of defendant's skill in
performing the laparoscopic procedure. In these circumstances,
because the term "judgment" has a special meaning as part of the
"medical judgment" rule, its use should be avoided in a medical
malpractice case involving only negligence or the failure to
exercise reasonable care in the rendering of medical treatment or
the performance of medical procedures.
We note that the revised Model Charge correctly conveys the
precise use of the term "judgment" in connection with the
practice of medicine:
If a case does not involve a legitimate
judgment call or two schools of thought, then
the Trial Judge should omit [the "exercise of
judgment"] portion of the charge. If a case
involves judgment issues on some theories of
liability, but not on others, the charge
should be tailored to those facts. Medical
malpractice practitioners should assist the
court in framing tailored, objective
statements of those issues which do involve
legitimate dispute issues of judgment or two
schools of thought. To give one example
among many, if a distinct issue in a case
involved a doctor who ordered a test and
never received the result, the jury would
appropriately be charged that there was no
exercise of judgment or two schools of
thought defense to that claim. In contrast,
what steps to take in response to a test
result might involve one or more issues of
judgment.
[Revised Model Jury Charge 5.36A,
supra, at 5 n.4 (citations
omitted).]
Finally, we are in accord with the conclusion reached by the
Appellate Division that the issue of negligence presented triable
issues of fact. Defendant's expert testified plaintiff's
injuries could have occurred even in the absence of negligence,
and added that on the facts, particularly in light of patient's
thin anatomy, defendant conformed to the standard of care. That
evidence, if credited by the jury, could support the
determination that defendant was not negligent.
For the foregoing reasons, the judgment of the Appellate Division is reversed. The matter is remanded for a new trial in accordance with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in JUSTICE HANDLER's opinion.
NO. A-40 SEPTEMBER TERM 1998
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
LAURA E. AIELLO,
Plaintiff-Appellant,
v.
MUHLENBERG REGIONAL MEDICAL CENTER, etc., et al.,
Defendants,
and
MAHESH SHAH, M.D.,
Defendant-Respondent.
DECIDED June 29, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 In Morlino v. Medical Center,
152 N.J. 563, 590 (1998),
the Court directed the Supreme Court Committee on Model Jury
Charges, Civil to amend the Model Charge in order to eliminate
the phrase “the physician cannot be held liable if, in the
exercise of his judgment, he nevertheless made a mistake” because
of its potential to confuse the jury. The Court further
instructed the Committee to determine whether fewer references to
the term “judgment” are possible to adequately “communicate to
the jury that medicine is not an exact science and that
physicians and surgeons must exercise judgment[,]” and to “try to
make the entire charge shorter and clearer.” Ibid. In April
1999, the following revised charge was adopted:
The Law recognizes that the practice of
medicine is not an exact science. Therefore,
the practice of medicine according to
accepted medical standards may not prevent a
poor or unanticipated result. Therefore,
whether the defendant doctor was negligent
depends not on the outcome, but on whether
he/she adhered to or departed from the
applicable standard of practice and care.
A doctor may have to exercise judgment
when diagnosing and treating a patient.
However, alternative diagnosis/treatment
choices must be in accordance with accepted
standard medical practice. Therefore, your
focus should be on whether standard 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. If
you determine that the standard of care for
treatment or diagnosis with respect to
(specify what type(s) treatment or diagnosis
is involved) did not allow for the choices or
judgments the defendant doctor made here,
then the doctor would be negligent.
If you find that the defendant(s) has
(have) complied with the accepted standard of
medical care, then he/she is not liable to
the plaintiff regardless of the result. On
the other hand, if you find that the
defendant(s) has (have) departed from the
accepted medical standard, then you must
determine whether such deviation or
negligence was a proximate cause of any
injury sustained or any loss incurred by
plaintiff.
[Model Jury Charge 5.36A (Civil), 4-6 Medical Malpractice, Duty and Negligence (footnotes and citations omitted) (April 1999) (hereinafter “Revised Model Jury Charge 5.36A”).]