How does “Best Judgement” work in Malpractice Suits?


downloadMedical malpractice lawsuits can be especially complicated. Because of legal precedent in some medical malpractice lawsuits, the courts have tended to be more deferential to the exercise of individual physician judgment in cases where judgment has been cited as a defense.

The use of the “best judgement” defense began in a case in the state of New York in 1898, in the case of Pike v. Honsinger. In the lawsuit, an extremity fracture was treated with a cast. As a result, compartment syndrome occurred, leading to a devastating outcome. The 1898 court ruled that the physician was required to “use his best judgment,” and that this, “does not hold him liable for a mere error of judgment, provided he does what he thinks is best after careful examination.”

The language used in the Pike case might suggest that a physician or surgeon is somehow 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 and it remains controversial to this day.

In a similar and more recent case, an orthopedic surgeon stated as a defense that he was using not only his best judgment, but the best judgment of any reasonable and prudent orthopedic surgeon in the same position.

The plaintiff, the wife of a man who died, had contacted the orthopedic surgeon, and described the pain that her husband had been experiencing. The surgeon advised that if he was not feeling better in the morning, that she should take him to the emergency room. The pain did not decrease and another orthopedic surgeon at the ER found a splitting edema. It was recast, but the pain returned and an appointment was made by the orthopedic surgeon to see the patient the following day.

The surgeon split the cast, examined the leg and found slight pitting edema. The surgeon also performed a Homan’s test, which returned a negative result. The patient was sent home and at approximately 4:00 p.m. that evening complained of severe chest pains and shortness of breath. Shortly afterward, he collapsed dead. The cause of death, according to the autopsy, was a saddle embolus.

Legal counsel for the plaintiff asserted that the only reason the orthopedic surgeon would perform a Homan’s test was if he were considering a deep venous thrombosis (DVT) in his differential diagnosis. The plaintiff’s attorney also argued that the Homan’s test has proved at times to be unreliable. The plaintiff alleges that the awareness of the potential life threatening condition and the reliance on a test that could give unreliable results was enough in terms of negligence on the part of the orthopedic surgeon.

The legal counsel for the defendant asserted that pain of the type that the plaintiff suffered is often experienced with injuries of this type and that the surgeon relied on the clinical appearance of the plaintiff’s leg. By using this judgement, he should therefore not have any liability, as no any other orthopedic surgeon would likely have made the same diagnosis.

As you can see, medical malpractice lawsuits can be both technical and frustrating. Rest assured, the legal representatives for doctors, hospitals, insurance companies and other medical related fields are very well funded and will diligently try to tear apart a medical malpractice or medical negligence case.

The attorneys at Bottar Leone, PLLC, have decades of experience in the investigation and prosecution of medical malpractice cases in the State of New York. If you believe that you or a loved one has suffered as a result of medical malpractice, contact our offices today.

After a careful evaluation of your claim we can represent you in this highly specialized area of the law. Call us today in order to schedule a free initial consultation. You may contact us at our toll free number (888) 979-1689, or at (315) 313-6809, or reach us by email at

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