Appeal from the Judgment entered January 4, 2007, Court of Common Pleas, Clearfield County, Civil Division at No. 2003-624-CD.
The opinion of the court was delivered by: Donohue, J.
BEFORE: FORD ELLIOTT, P.J., STEVENS, MUSMANNO, ORIE MELVIN, LALLY-GREEN*fn1, KLEIN, GANTMAN, PANELLA and DONOHUE, JJ.
¶ 1 Dennis Pringle and Christine Pringle (collectively, "the Pringles"), in their own right as parents and natural guardians of their son Austin Pringle ("Austin"), appeal from the judgment entered following a jury verdict in a medical malpractice case in favor of appellees, Adolfo Rapaport, D.O., and Adolfo Rapaport, D.O., P.C. (collectively, "Dr. Rapaport").*fn2 The Pringles contend that the trial court erred, inter alia, in including an "error of judgment" instruction during the charge to the jury at the trial of their medical malpractice action against Dr. Rapaport. After an exhaustive review of decisional law, we conclude that the Supreme Court of Pennsylvania has never addressed the appropriateness of this charge, and that the decisions of panels of this Court are irreconcilable. Thus, following our careful review, we conclude that the "error of judgment" instruction should not be given in medical malpractice actions, as it does not inform jurors on the applicable standard of care and instead tends only to confuse, rather than clarify, the issues the jury must decide. We thus reverse and remand for a new trial.
¶ 2 On July 31, 2002, Dr. Rapaport delivered Mrs. Pringle's second child, Austin. N.T., 6/26/06, at 120. Austin's birth was complicated because his shoulder was stuck behind his mother's pubic bone, a condition known as shoulder dystocia. Id. at 103. During Austin's delivery, Dr. Rapaport suspected shoulder dystocia when he observed Austin's head deliver but then retract back into the birth canal, a tell-tale sign of the condition. N.T., 6/28/06, at 109. To determine whether he was dealing with shoulder dystocia, Dr. Rapaport placed a hand on Austin's head and applied traction to see whether the shoulder would move. Id. at 110-11.
¶ 3 When Austin's shoulder did not move, Dr. Rapaport engaged three maneuvers to remedy the situation. First, Rapaport tried the "McRoberts maneuver," which involved Mrs. Pringle's legs being drawn up toward her shoulders while Dr. Rapaport placed his hands on Austin's head and applied traction in an effort to free Austin's shoulder. Id. at 114. Because this did not remedy the situation, Dr. Rapaport tried a second technique, the application of suprapubic pressure to Mrs. Pringle's abdomen, again while applying traction to Austin's head. Id. at 115, 118. When this resulted in no progress, Dr. Rapaport engaged a third maneuver, a "corkscrew procedure," that involved a manual turning of Austin's shoulders. This successfully led to Austin's delivery. Id. at 121.
¶ 4 Upon delivery, Austin's right arm was limp. Id. at 127. It was subsequently determined that during delivery, multiple nerves in Austin's neck were torn apart, causing an injury to the brachial plexus, which is the web of tissue and nerves located in that area. Brachial plexus injuries involve the stretching or tearing to some or all of the five nerves located in the neck, which are referred to as C-5, C-6, C-7, C-8 and T-1. N.T., 6/26/06, at 108. Most commonly with these injuries, the two highest nerves, C-5 and C-6, are injured. Id. at 109. C-7 and C-8 are much less frequently injured. Id. In Austin's case, all five nerves were injured; most drastically, C-5 was ruptured, or torn apart, and C-6, C-7, and C-8 had been ripped from his spine, or avulsed. Id. at 130. Although T-1 was not ruptured or avulsed, it was injured. Id. at 111. This brachial plexus injury caused the paralysis of Austin's right arm. Brachial plexus injuries are uncommon occurrences and an injury as severe as Austin's is extremely rare. Id.
¶ 5 The Pringles filed an action against Dr. Rapaport, alleging that he was negligent by using excessive force on Austin's head during delivery and that the excessive force caused the brachial plexus injury and resultant paralysis. Appellant's Brief at 5. At trial, the expert testimony presented by both sides agreed that shoulder dystocia is an emergency situation. The expert witnesses also agreed that Dr. Rapaport used the proper procedures in the proper sequence to resolve the shoulder dystocia in this case -- the McRoberts maneuver first, suprapubic pressure second, and the "corkscrew procedure" third. N.T., 6/26/06, at 112-14; N.T., 6/28/06, at 40-43.
¶ 6 The expert witnesses disagreed, however, as to whether Dr. Rapaport applied excessive force when performing the corkscrew procedure. For the Pringles, Dr. Joseph Finkelstein ("Dr. Finkelstein") testified that the force applied by Dr. Rapaport was excessive because an injury as severe as the one suffered by Austin, in which nerves were ruptured and torn, does not occur from "the normal forces of labor and requires an excessive traction to be applied beyond [what] the baby can handle." N.T., 6/26/06, at 132. Dr. Finkelstein opined that this injury does not result absent the negligent application of force by the delivering physician. Id. at 133. He further testified that there is no way to quantify at what point the force becomes excessive, but that determination of the proper amount of force is a skill learned through hands-on training. Id. at 115, 144.
¶ 7 Rapaport's expert, Dr. Tom Benedetti ("Dr. Benedetti") agreed that the proper amount of force to apply in a corkscrew procedure is a skill learned through training and experience, and that the amount of force Dr. Rapaport exerted on Austin was excessive and caused the injury. N.T., 6/28/06, at 21, 37. Dr. Benedetti opined, however, that in his professional opinion Dr. Rapaport's application of excessive force was not negligent: "[T]he word excessive is, to me, not the operative word. The operative word is negligent, because I think that the traction was excessive in that it was more than the baby's brachial plexus could tolerate; but it was not negligent, because I could find no evidence that it was any more than what was usually done in normal deliveries .." Id. It was Dr. Benedetti's opinion that brachial plexus injuries may still occur even when proper (non-negligent) care is provided. N.T., 6/28/06, at 46.
¶ 8 Dr. Rapaport similarly testified that the amount of force that should be applied in performing the corkscrew procedure is a skill "that's learned over time from being taught with other people's hands on yours as you do deliveries. . And it all comes down to a tactile sense as you're applying traction . and your experience in what you've done[.]" Id. at 82. He stated that he was trained both as to the amount of force to be applied when dealing with shoulder dystocia and as to how to minimize the amount of force applied to the infant's head in such a situation. Id. at 89-90. Dr. Rapaport testified that Austin presented the most severe case of shoulder dystocia that he had ever encountered and that he applied the same amount of traction to Austin as he does in every other delivery. Id. at 150. Although he agreed that the application of excessive force can cause a brachial plexus injury, he denied that he applied excessive force in Austin's case. Id. at 141, 150-51. To the contrary, Dr. Rapaport insisted that his actions saved Austin's life. Id.
¶ 9 Accordingly, the expert witnesses and Dr. Rapaport all agreed that the "corkscrew procedure" is an accepted method for relieving shoulder dystocia, that Dr. Rapaport decision to utilize that procedure was appropriate under the circumstances presented, and that the proper amount of force to apply when utilizing the procedure is a skill that is learned and refined through training and practice. The only issue of dispute was whether Dr. Rapaport executed the corkscrew procedure in a negligent manner.
¶ 10 At the close of the evidence, the trial court charged the jury, in relevant part, as follows:
Generally, folks, negligence can be defined as follows: Negligence is otherwise known as carelessness, and it is the absence of ordinary care which a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist of an act or an omission to act where there is a duty to do so. In other words, negligence is the failure to do something which a reasonably careful person would do or the doing of something which a reasonably careful person would not do in light of all of the surrounding circumstances that are established by the evidence and the testimony in this case. So folks, you must determine how a reasonably careful person would have acted under the circumstances presented here.
What's ordinary care? Ordinary care is the care that a reasonably careful person would use under circumstances presented in this case, because, folks, it's the duty of every person, all of us, to use ordinary care not only for our own safety in the protection of our own property but also to avoid injuries to others.
What constitutes ordinary care varies according to the circumstances and conditions of each case, and the amount of care required by the law must be in keeping with the degree of danger that's involved in the circumstances. All right. Those are general definition of negligence and ordinary care. Now let's talk about specific negligence in regard to physicians, or what can be referred to as professional negligence.
Professional negligence consists of a negligent, careless or unskilled performance by a physician of the duties imposed on him by his professional relationship with his patients. So folks, it's also negligence when a physician shows a lack of proper care and skill in the performance of a professional act. A physician must have and use the same knowledge and skill and exercise the same care as that which is usually had and exercised in the medical profession. A physician whose conduct does not meet this professional standard of care is negligent.
Now folks, a physician who holds himself out as a specialist in a particular field of medicine must have and use the same knowledge and skill and exercise the same care as that which is usually had and exercised by other specialists in that same medical specialty, or same medical area. A specialist whose conduct does not meet this professional standard of care is negligent. Folks, any physician must also use the same degree of care as would a reasonable person under the circumstances, and if he fails to do so, he is negligent.
So you folks must decide whether [Dr. Rapaport] was negligent in any of these respects. You must determine whether or not [Dr. Rapaport] held himself out as a specialist in a particular field of medicine, and whether or not he had and used the same knowledge and skill and exercised the same care as that which is usually had and exercised by other specialists in the same medical specialty. Again, a specialist whose conduct does not meet this professional standard of care is negligent.
Next, folks, [the Pringles] must establish [Dr. Rapaport's] negligence . as I said, by the greater weight of the evidence. That's the fair weight or the preponderance of the evidence. [The Pringles] may do this by circumstantial evidence, that is, by proving facts and circumstances from which negligence may be reasonably inferred. You may infer that the harm suffered by . Austin was caused by negligence of [Dr. Rapaport] if your find the following three factors are present: First, that the accident, or the harm involved here, is of a kind that ordinarily does not occur in the absence of negligence. In this connection, you may consider the general knowledge of the community, the evidence of the parties or expert testimony. Second, that other responsible causes, including the conduct of [the Pringles] and third persons, have been sufficiently eliminated by the evidence presented, but it is not necessary that [the Pringles] exclude all other possible causes for [Austin's] injuries. Evidence that it is more likely than not that [Austin's] injuries were caused by [Dr. Rapaport's] negligence is sufficient to permit the inference. In this connection, if you find that [Dr. Rapaport] had exclusive control involved here at the time when the negligence that is claimed would have occurred, you may determine that such other causes have been sufficiently eliminated. And the third factor, that the negligence claimed was within the scope of [Dr. Rapaport's] duty to [Austin].
Although [Dr. Rapaport] is not required to offer an explanation for the occurrence of the accident, or the harm here, if he does so, it is for you to weigh that explanation in relation to all evidence to determine whether negligence by [Dr. Rapaport] may be reasonably inferred. Folks, if a physician has used his best judgment and he has exercised reasonable care and he has the requisite knowledge or ability, even though complications resulted, then the physician is not responsible, or not negligent. The rule requiring a physician to use his best judgment does not make a physician liable for a mere error in judgment provided he does what he thinks best after careful examination.
The rule of reasonable care does not require the exercise of the highest possible degree of care, but requires only that the doctor exercise that degree of care that a reasonably prudent physician would have exercised under the same circumstances as presented here.
Physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake of judgment. Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgments unless it is proven that an error of judgment was the result of negligence. And folks, as a general proposition that applies in any case, doctors or physicians do not guarantee a cure to their patients, and negligence should not be presumed from the occurrence of an unfortunate result.
N.T., 6/29/06, at 79-80 (emphasis added).
¶ 11 Following deliberations, the jury returned a verdict for Dr. Rapaport. The Pringles filed a post-trial motion seeking a new trial, which the trial court denied. They then filed a timely appeal to this Court, raising two challenges to the trial court's charge to the jury:
I. Did the trial court err when it instructed the jury . to decide the issue of negligence by considering the physician's subjective judgment?
II. Was the trial court's instruction to the jury that "Physicians do not guarantee a cure and negligence should not be presumed from the occurrence of an unfortunate result," in inextricable conflict with the [Pringle's] accepted "Res Ipsa Loquitur" charge?
Appellants' Brief at 4. This Court decided to hear the case en banc, ab initio.
¶ 12 Our standard of review when considering the adequacy of jury instructions in a civil case is to "determine whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case." Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995). It is only when "the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue" that error in a charge will be found to be a sufficient basis for the award of a new trial. Id. at 540; Ferrer v. Trustees of University of Pennsylvania, 573 Pa. 310, 345, 825 A.2d 591, 612 (2002); see also Tindall v. Friedman, 970 A.2d 1159, 1175 (Pa. Super. 2009).
¶ 13 For their first issue on appeal, the Pringles contend that the trial court erred in including "error of judgment" instructions in its charge to the jury (highlighted in the charge set forth above). An "error of judgment" charge provides generally that physicians are not responsible for "mere errors in judgment" or the use of "best judgment" unless the resulting error constitutes, or was the result of, negligence. The Pringles argue that this instruction improperly advises the jury on the well-established applicable standards for medical malpractice and is also likely to mislead and confuse the jury in its deliberations. Appellant's Brief at 12. For the reasons that follow, we agree.
¶ 14 We begin with a review of the history of the standard of care for physicians in Pennsylvania and the role of judgment in determining whether the standard of care has been violated. Among the oldest cases addressing the issue is McCandless v. McWha, 22 Pa. 261, 1853 WL 6450 (1853), in which our Supreme Court reversed a verdict of $800 for the plaintiff. The trial court instructed the jury that the defendant physician had an obligation to set the plaintiff's broken leg so that it was straight and of equal length with the other, and that if he did not "he was accountable in damages, just as a stone-mason or bricklayer would be in building a wall of poor materials, and the wall fell down, or if they built a chimney and it should smoke by reason of a want of skill in its construction." Id. at *5. Our Supreme Court disagreed with the comparison of a physician's duty of care to that of a stone-mason or bricklayer, indicating instead that "[t]he implied contract of a physician or surgeon is not to cure -- to restore a fractured limb to its natural perfectness -- but to treat the case with diligence and skill." Id. Instead, the Supreme Court held that "the question is not whether the doctor had brought to the case skill enough to make the leg as straight and long as the other, but whether he had employed such reasonable skill and diligence, as are ordinarily exercised in his profession." Id. (emphasis added). In judging the degree of skill required in a given case, "regard is to be had to the advanced state of the profession at the time." Id.
¶ 15 While this description of the physician's standard of care remained in effect without change for over a hundred years, its application in specific cases proved difficult. In particular, our appellate courts struggled to explain the interrelated notions that a doctor does not promise a cure and that mistakes by doctors are not necessarily the result of negligence. In Williams v. LeBar, 141 Pa. 149, 21 A. 525 (1891), for example, the plaintiff brought an action against the defendant physicians for signing a certificate stating that the plaintiff was insane, even though they had not carefully examined him. The trial court found that the plaintiff was not insane and that the defendants were wrong in their conclusions to the contrary, but nevertheless refused to find that they were negligent for their faulty diagnosis. Our Supreme Court agreed, stating, "[The trial court] very properly held that no presumption of negligence arose from the mere fact that the defendants were mistaken as to the insanity. . . . The most the case discloses is an error of judgment, to which the most careful and skillful physician is liable in a mysterious disease like insanity." Id. at 159, 21 A. at 525; see also English v. Free, 205 Pa. 624, 626, 55 A. 777, 777 (1903) ("It may be that Dr. Free was mistaken in his diagnosis. [But] the undisputed testimony of quite a number of surgeons, called as witnesses, is that this injury is such that it is very difficult to detect its exact character.").
¶ 16 This Court used the same phrase, "error of judgment", to absolve a physician from liability in Remley v. Plummer, 79 Pa. Super. 117, 1922 WL 2863 (1922). In Remley, the jury returned a verdict of $3,000 for plaintiff after the administration of a general anesthetic for minor surgery to the plaintiff's finger resulted in his sudden death. This Court reversed the judgment, concluding that "if the symptoms are obscure or such that even a skillful practitioner might after using his best knowledge and judgment be mistaken in his diagnosis, he is not liable ...