In previous articles, we have discussed the complex issue of assessing malpractice liability for physician judgment. Courts have traditionally been deferential to the exercise of individual physician judgment, when such judgment is asserted as a defense in medical malpractice litigation.
The courts first addressed this issue in the 1898 New York case of Pike v. Honsinger, in which an extremity fracture was treated with a cast and compartment syndrome resulted, leading to a devastating outcome. The court held, “the rule requiring the physician to use his best judgment does not hold him liable for a mere error of judgment, provided he does what he thinks is best after careful examination.” The language in Pike has been controversial in the years following the ruling, as it suggests a physician or surgeon is immune from liability when using his or her best judgment, even if that judgment is negligent. This so-called “judgment defense” is used commonly by defense counsel in medical malpractice cases.
The New York Court of Appeals clarified and limited the Pike doctrine in the 1981 case of Topel v. Long Island Jewish Medical Center, in which a psychiatrist was sued for only recommending observation in 15-minute intervals for a hospitalized patient with suicidal tendencies. The basis for the estate’s claim was the psychiatrist was required to order constant observation. Even though the patient’s estate presented expert evidence that constant observation was required under the prevailing standard of care, the trial court dismissed the case, relying on the “judgment immunity,” stating the election between constant monitoring and monitoring in 15-minute intervals “… was a matter of professional judgment…” for which the psychiatrist could not be held liable. The Topel ruling is significant as it partially overturned Pike by stating a physician or surgeon could not be held liable for a mere error of judgment provided he does what a reasonable and prudent physician would have done after careful examination. 