This is an action in negligence for damages brought by a patient against an anesthesiologist.
1
The jury returned a verdict for the defendants and the plaintiff appealed. The Court of Appeals affirmed.
Rogers v. Meridian Park Hospital,
FACTS
The plaintiff had abdominal surgery at Meridian Park Hospital. The defendant was his anesthesiologist. Either during or immediately after the surgery the plaintiff regurgitated and aspirated matter from his stomach, resulting in permanent lung and kidney damage. He alleged that the defendant negligently failed to prevent the aspiration.
Expert testimony established that the endotracheal tube aids the patient’s breathing under anesthesia and helps prevent material from the stomach from entering the lungs. The experts also testified that medical opinion differs on when to remove the tube after surgery. Some physicians remove the tube as soon as the patient regains enough reflexive activity to resist its presence through a coughing-like response called “bucking,” because bucking could reopen sutures, irritate the trachea, and the like. Others resedate the patient, leaving the tube in place to prevent aspiration of stomach contents. The plaintiffs experts testified that the defendant was negligent in removing the tube prematurely. The defendant’s experts testified that his course of action was one of several medically acceptable alternatives.
The experts also testified about the appropriate position in which to place a patient during recovery to reduce the risk of aspiration. The experts again gave differing medical opinions.
The judge instructed the jury with a slightly modified version of UCJI No. 105.06. The instruction given contained five sentences (which we number for later reference):
*615 “[1] A physician is charged with applying without error those principles and learnings that are settled and agreed upon by all members of the medical profession. [2] In some cases, there may be reasonable differences of opinion among members of the medical profession as to the nature of the patient’s condition or the proper course of treatment. [3] When there is such a difference of opinion, the physician must exercise reasonable judgment. [4] A physician is liable for an error of judgment if the physician fails to act with reasonable care and skill in exercising that judgment. [5] A physician is not liable for an error in judgment if the physician acts with reasonable care and skill in exercising such judgment.”
The jury returned a verdict for the defendant, the plaintiff appealed, and the Court of Appeals affirmed.
ANALYSIS
Actions against professionals often involve the exercise of what the professionals refer to as “judgment.” Due care may permit an engineer to design a device using material A or material B. Selection of either material for the design is not negligence. Similarly, due care may permit a surgeon to follow an alpha procedure or a beta procedure. Selection of either procedure is not negligence. Expert witnesses may testify, “The choice of either alpha or beta is a matter of judgment; either is acceptable.” This brings us to the “error-of-judgment” rule, which is nothing if not hoary in Oregon case law.
The rule derives in part from the notion that a doctor does not promise a cure and that an untoward result might not be the result of negligence.
See, e.g., Hills v. Shaw,
*616
The error-of-judgment rule also stems in part from the recognition that if there is more than one acceptable treatment option, then the selection of any one of them is not negligence. Thus, a doctor is not liable for untoward results if he or she used reasonable care in selecting one of those options.
See Foxton v. Woodmansee,
An instruction that accurately quotes or faithfully paraphrases an appellate decision is not necessarily beyond reproach. Indeed, “it is not advisable in charging the jury to use the exact words of an appellate court opinion * *
Ireland v. Mitchell,
Jury instructions should reduce the relevant law to terms readily grasped by the jury without doing violence to the applicable legal rule.
Newbern v. Exley Prod. Exp. Co.,
“The parties to any jury case are entitled to have the jury instructed in the law which governs the case in plain, clear, simple language. The objective of the mold, framework and language of the instructions should be to enlighten and to acquaint the jury with the applicable law. Everything which is reasonably capable of confusing or misleading the jury should be avoided. Instructions which mislead or confuse are ground for a reversal or a new trial.” 2
The error-of-judgment instruction has been criticized on several occasions. In
Rayburn v. Day,
*617
instruction. The court perfunctorily disposed of the issue, declaring: “The exception having been no more specific, we believe that the court fairly instructed the jury upon the principles of law applicable to the problem before them.”
“True, a physician and surgeon is not liable for error of judgment if the same is consistent with the exercise of reasonable care and diligence, but, if the defendants, in the use of the X-ray machine, failed to follow the formula relative to time of exposure universally accepted by the profession it will not do for them, in order to avoid liability, to say ‘We exercised our best judgment’. To avoid liability, the judgment must be based upon the exercise of reasonable care and skill.”142 Or at 217 .
The court reversed, concluding that “[t]he instructions, considered in their entirety, are subject to criticism * *
Even after
King v. Ditto, supra,
the error-of-judgment doctrine lived on as a valid rule of
substantive law,
arising most frequently in the context of challenges to the sufficiency of evidence.
See, e.g., Willard v. Huston,
The Oregon Court of Appeals has since reviewed the error-of-judgment instruction and on at least one occasion found it wanting. In
Ellis v. Springfield Women’s Clinic,
Courts in several other jurisdictions have recently disapproved the use, either in whole or in part, of the error-of-judgment instruction. In
Logan v. Greenwich Hosp. Ass’n,
“to use such a phrase in a charge upon negligence serves only to confuse a jury by implying that only an error in judgment made in bad faith can be actionable. The central issue in the ordinary negligence case is whether the defendant has deviated from the required standard of reasonable care * * *. Errors in judgment which occur with the best intentions constitute negligence if they result from a failure to use reasonable care.”465 A2d at 303 . 3
Likewise, in
Watson v. Hockett,
42 Wash App 549,
“Are other members of society liable for negligent acts, even though they may be the result of an ‘honest error in judgment’? * * * [A] driver is liable for the results of his negligent driving, even if committed within the context of an honest error of judgment.”712 P2d at 860 . 4
*619
The plaintiff in this case asserts that the instruction is unduly confusing and incorrectly states the law. We agree. Medical malpractice cases are nothing more than negligence actions against medical professionals. The fundamental issue in these cases, as in all negligence cases, is whether the defendant breached the standard of care and caused injury to the plaintiff.
See, e.g., Creasey v. Hogan,
“A physician or podiatrist licensed to practice medicine or podiatry by the Board of Medical Examiners for the State of Oregon has the duty to use that degree of care, skill and diligence which is used by ordinarily careful physicians or podiatrists in the same or similar circumstances in the community of the physician or podiatrist or a similar community.”
The challenged instruction obscures the fact that, to avoid liability, the defendant must exercise the degree of care, skill, and diligence required by law. Sentences [2] and [3], taken together, suggest that the physician’s duty to “exercise reasonable judgment” turns on the existence of “reasonable differences of opinion.” That is incorrect. The obligation to exercise reasonable judgment always exists, whether or not “there may be reasonable differences of opinion among members of the medical community as to * * * the proper course of treatment.” The rule stated in sentence [3] does not follow from sentence [2]; moreover, sentence [3] is not a correct statement of the rule of law, because whether or not there is a difference of opinion, a physician must always exercise reasonable care. This sentence also makes it appear that reasonable judgment is the crucial issue. It is not. In fact, reasonable judgment is irrelevant if the treatment option selected provides reasonable care. A doctor may not know that there is more than one treatment option, or the doctor may adhere only to one option, unreasonably rejecting all others. In both of these instances the doctor, by ignoring or rejecting all other treatment options, may not be exercising reasonable judgment. Nevertheless, the doctor is not liable for negligence if the treatment furnished is consistent with reasonable care.
*620 Sentences [4] and [5] are also unduly confusing. 5 To state that a doctor is not liable for bad results caused by an error of judgment makes it appear that some types of negligence are not culpable. It is confusing to say that a doctor who has acted with reasonable care has nevertheless committed an error of judgment because untoward results occur. In fact, bad results notwithstanding, if the doctor did not breach the standard of care, he or she by definition has committed no error of judgment. The source of the problem is the use of the word “error.” Error is commonly defined as “an act or condition of often ignorant or imprudent deviation from a code of behavior.” Webster’s Third New International Dictionary 772 (unabridged 1971). These sentences could lead the jury to believe that a judgment resulting from an “ignorant or imprudent deviation from a code of behavior” is not a breach of the standard of care.
The instruction given by the trial court was based on language concerning the exercise of “judgment” by doctors found in opinions of this court and the Court of Appeals. If the term “judgment” refers to choices between acceptable courses of treatment, then the term “error in judgment” is a contradiction in itself. 6 Use of any acceptable alternative would not be an “error.” Witnesses may continue to use terms such as “exercise of judgment.” But the court should not instruct the jury in such terms; such instructions not only confuse, but they are also incorrect because they suggest that substandard conduct is permissible if it is garbed as an “exercise of judgment.”
After reviewing the record, we are unable to say that the error in this case was harmless. The decisions of the trial court and the Court of Appeals are therefore reversed. The case is remanded to the trial court for a new trial.
Notes
The defendant anesthesiologist is the only remaining defendant on appeal.
ORCP 59 also pertains to jury instructions. ORCP 59B directs the court to “state to [the jury] all matters of law necessary for their information in giving their verdict.” ORCP 59E provides that the court “shall not instruct with respect to matters of fact, nor comment thereon.” For appellate review, ORCP 59H provides that “no instruction given to a jury shall be subject to review upon appeal unless its error, if any, was pointed out to the judge who gave it and unless a notation of an exception is made immediately after the court instructs the jury.”
In
Sleavin v. Greenwich Gynecology,
6 Conn App 340,
Other courts have also recently disapproved of some form of the error-of-judgment instruction.
See, e.g., Veliz v. American Hosp., Inc.,
414 So2d 226, 228 (Fla App),
rev den
424 So2d 760 (1982);
Wall v. Stout,
310 NC 184,
The defendant contends that the plaintiff did not properly except to any sentences besides [2] and [3]. Sentences [2] and [3] by themselves are sufficiently confusing to invalidate the instruction. Because this case must be retried, we also address other sentences in the instruction.
It brings to mind other oxymorons, like “jumbo shrimp,” “service station,” and “fresh frozen.”