Getting a Recovery for Medical Malpractice and the “Medical Judgment” Rule

What is the medical judgment defense?

First, let us establish a simple definition of medical malpractice or medical negligence:

A physician or other health care provider is obligated to provide medical services which meet the reasonable standard of medical care in the community.  Medical malpractice is a deviation from that standard.

Let us turn to the medical judgment defense:

A physician, as a learned professional, is expected to use professional judgment in treating a patient.  He must make many medical judgments when treating a patient.  One doctor may have a different approach than the next doctor, however, the fact that two physicians differ does not mean that that there was malpractice.  

A physician will not be held responsible for an error of  professional judgment.  In other words, if the physician’s treatment was acceptable in the medical community, then an error of judgment will not be malpractice. 

In order to hold a physician liable for medical malpractice, the error must be clear negligence rather than an error of judgment.

How does the medical judgment defense work?

For example,

Sam has a lumbar fusion at L5-S1 to relieve his severe low back pain.  The surgeon, Dr. Ben Casey,  uses a # 3 cage to encase the fused vertebrae.

Sam’s pain is not relieved.  It becomes much worse, and he cannot work.

Sam visits other spine surgeons.   Sam visits Dr. Kildare.  The doctor says that the first surgeon might used a cage which was too small.  Dr. Kildare prefers to use a # 5 cage which is larger than the # 3 used.  Dr. Kildare says that a larger cage provides more stability.  However, he says that the use of the # 3 cage is acceptable in New York’s spinal surgery community.

In this instance, the first surgeon’s use of a smaller is not negligent.  It was his medical judgment to use a # 3 rather than a # 5.  Perhaps, a # 5 cage would have yielded a better result?  Perhaps not?  In any event, such is irrelevant because an error of judgment, based on sound and accepted medical practice,  is not malpractice.

Therefore, the professional judgment rule protects the doctor from having a court second-guess medical judgments so long as his judgment was sound and reasonable within the medical community.  An error in judgment is not medical malpractice.

If you have been injured due to medical malpractice, please feel free to call me for a free consultation at 800-581-1434 or write to me at

Mark E. Seitelman, 1/23/10,


One Response to Getting a Recovery for Medical Malpractice and the “Medical Judgment” Rule

  1. […] a Recovery for Medical Malpractice and the Medical Judgment Defense (Part II) In an earlier post I wrote about the medical judgment defense in a medical malpractice […]

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