Getting 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 case.

In sum, the medical judgment defense states that a physician will not be held liable for a medical judgment as long as his judgment is based on sound medicine.

Recently, a potential client posed the following case:

I had a right hip replacement done by Dr. Jenkins.  I had a left hip replacement done about two years earlier, and my recovery on the left hip went well.

Unfortunately, my recovery from my right hip did not go as well.  It seems that my right leg has become almost 1 inch longer than my left, and I am imbalanced.  It is difficult to walk.  Also, I have low back pain as a result being lopsided.

My new orthopedist told me that Dr. Jenkins used an “old fashioned” hip replacement technique and that this might have caused the elongation of my right leg.  My new orthopedist told me that he would not have used the same technique in that a newer, better method has become available.  However, my new doctor said that my hip was anatomically correct.

The client has no recourse against Dr. Jenkins.

If the surgeon exercised his sound medical judgment, then he cannot be held liable for the bad result.  As long as the old technique was still recognized and used, Dr. Jenkins would not be liable.  A longer or shorter leg is a foreseeable complication of hip surgery. 

Bad medical judgment is not negligence.  A physician is expected to exercise sound medical judgment based upon generally accepted medicine.  It is easy to play “Monday morning quarterback” and have another surgeon say that he would have done it differently or would have made a different judgment. 

If the doctor were to use a technique which has been disproved, then such might rise to medical malpractice.  For example, if a doctor were to use leaches to treat pancreatic cancer, then the doctor’s treatment would be negligent medical practice.  The decision to use leaches, a method which was used in the 18th century and is no longer used, would not be deemed a medical judgment because it is not based in sound medical practice.

Simply stated, a doctor may use his sound medical judgment, and he will not be held responsible if something goes wrong.

If you have been injured due to medical malpractice, please feel free to contact me at 800-581-1534 or write to

Mark E. Seitelman, 2/3/10,


2 Responses to Getting a Recovery for Medical Malpractice and the Medical Judgment Defense (Part II)

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