§47.23 Error of Judgment Rule

The Case : McPeak v. Vanderbilt University Hospital, 229 S.W.2d 150 (Tenn. Ct. App. 1950).

The Basic Facts: This case involves a suit against a hospital for damages resulting from an unsuccessful operation on the leg of Mrs. McPeak.

The Bottom Line:

  • "In the case of Blankenship v. Baptist Memorial Hospital, [168 S.W.2d 491, 496], this Court also said:
    It is the physician's privilege to decide between one of two or more courses in the treatment of his patients and, as said by the Court of Appeals, he could not be held responsible for an erroneous exercise of judgment. Casenburg v. Lewis, [40 S.W.2d 1038, at page 1040].

    In Synder v. St. Louis Southwestern R. Co., [72 S.W.2d 504, 512], the court said on this question:

    We have found no better statement of the rule of care required of a physician than in the case of Bailey v. St. Louis-San Francisco R. Co., [296 S.W. 477], cited by plaintiff, where this court, speaking through Judge Cox, said:

    Physicians and surgeons must be allowed a wide range in the exercise of their judgment and discretion. The science of medicine is not an exact science. In many instances there can be no fixed rule by which to determine the duty of a physician, but he must often use his own best judgment and act accordingly. By reason of that fact the law will not hold a physician guilty of negligence * * *, even though his judgment may prove erroneous in a given case, unless it be shown that the course pursued was clearly against the course recognized as correct by the profession generally. As long as there is room for an honest difference of opinion among competent physicians, a physician who uses his own best judgment cannot be convicted of negligence, even though it may afterward develop that he was mistaken. (Citing cases.)

    And where there is a difference of opinion among physicians or surgeons with reference to the treatment to be given in a particular case, a physician will not be held liable for malpractice if he follows the course of treatment advocated by a considerable number of physicians of good standing in his community. It would not be competent for a court or jury in such a case to say that a physician who followed either of said different methods of treatment was negligent."
    229 S.W.2d at 151-52.
  • "Also in the same volume in the case of Floyd v. Walls, [168 S.W.2d 602, 607], this Court said:
    Granting this, he will not be held liable for honest mistakes in judgment, but only for the negligent failure to meet the standards required by the profession in the community. As said in Burnett v. Layman, [181 S.W. 157, 158], 'A physician does not guarantee the cure of his patients. Presuming a careful diagnosis, a physician is not liable for damages resulting from an honest mistake in determining upon the character of treatment to be administered, or in determining upon the necessity of an operation. These things are mere matters of judgment upon which an action cannot ordinarily be predicated'.

    In Casenburg v. Lewis, [40 S.W.2d 1038, 1040], it is said that, 'It is the physician's privilege to decide between one of two or more courses in the treatment of his patients and, as said by the Court of Appeals, he could not be held responsible for an erroneous exercise of judgment. That rule is subject, however, to the limitation that before exercising judgment the physician should inform himself by proper examination so as to ascertain the facts and circumstances on which a reasonable exercise of judgment might rest.'"
    Id . at 152.
  • "In this case there is no evidence that the operation upon the plaintiff was performed in a negligent manner or that the treatment accorded her was not the usual and recognized treatment in such cases or that this operation was not skillfully performed in the standard and recognized manner." Id.
  • "In the case of Quinley v. Cocke, et al., [192 S.W.2d 992, 997], the Supreme Court said:
    Moreover, it is well settled by all the authorities that a physician will not be adjudged guilty of negligence for error of judgment in making a diagnosis. The question was made in Floyd v. Walls, [168 S.W.2d 602], and there held, 'A physician's failure to take x-ray pictures of a fractured limb does not constitute negligence under all circumstances.' The court said ([168 S.W.2d at 607]), 'It was not a question for a jury of laymen to say whether under the facts of the particular case the defendants were guilty of negligence in failing to take x-ray pictures of plaintiff's back. That was a question to be determined upon the testimony of experts skilled in the treatment of such injuries.'"
    Id.
  • Other Sources of Note: 

    Godbee v. Dimick, 213 S.W.3d 865 (Tenn. Ct. App. 2006) (the absence of evidence of an honest mistake means that error of judgment jury instruction should not have been given).

    Ward v. Glover, 206 S.W.3d 17 (Tenn. Ct. App. 2006) ("error in judgment" instruction was justified); Methodist Hospital v. Ball, 362 S.W.2d 475, 487 (Tenn. Ct. App. 1961) (citing the rule from McPeak protecting the decisions made by a doctor, but said the decisions must be predicated upon the assumption that the physician has used ordinary care and skill in making the examination of the patient and in arriving at a diagnosis of his condition).

    Recent Cases: Latiff v. Dobbs , No. E2006-02395-COA-R3-CV, 2008 WL 238444 (Tenn. Ct. App. Jan. 29, 2008) (holding trial court error in giving "error in judgment" charge harmless).

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