In Passarello v. Grumbine, the Pennsylvania Superior Court found no impediment to retroactive application of the holding in Pringle v. Rappaport in which it explored the history of the error in judgment rule and precluded its use in Pennsylvania on its basis of inconsistency with standard of care. The error in judgment rule holds that a surgeon could be excused for his negligence by claiming that although in retrospect it appears he made errors during a procedure, he used his best judgment at the time and therefore did not violate the standard of care.
In Passarello, a three judge panel granted a new trial to the parents and estate of a two-month old baby who died while under his physician's care. The trial court gave the jury instruction beyond the standard of care instruction and also discussed the error in judgment rule. The trial judge instructed the jury that "Under the law physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence." At trial, defense counsel gave several examples of "error in judgment" to the jury and told the jury that doctors don't practice medicine by textbook and don't have applications on their Blackberrys to look up cures for certain symptoms. Defense counsel asserted that requiring doctors to be perfect is impossible. The Court stated that it was defense counsel's exploitation of the error in judgment charge locked in its decision.
The holding in Passarello reaffirms the Pringle decision which held the error in judgment rule is precluded in Pennsylvania and extends this ruling to apply retroactively to cases which the final judgment of the verdict had not been entered before the 2009 filing date of Pringle.
