A Flying Leap Forward

A very common defense in physician and nursing negligence cases—a defense Tom and I both used on many occasions when we practiced as defense attorneys—is “physician judgment” or “nursing judgment.” This type of defense applies to all types of medical malpractice cases as well as to cases involving hospital staff and nursing homes. The types of cases where the defense was applied typically involved a patient who had suffered an injury and the question in the case was whether the health care provider had met the standard of care. The defense largely goes something like this:


There were a number of ‘reasonable’ treatment choices for this doctor/nurse under these circumstances. While it’s unfortunate that the choice the doctor/nurse made did not result in a better outcome for the patient, the doctor/nurse was exercising ‘reasonable physician/nursing judgment’ and thus was not negligent.


This defense relies on the inherent ambiguity of the word “reasonable.” Additionally, it counts on a jury wanting to believe a doctor/nurse was trying to use proper judgment and concluding these are complicated situations and who is a jury to suggest a doctor or nurse didn’t exercise reasonable judgment.


There is no question that physicians and nurses have to exercise some level of professional judgment in administering quality care, but have we reached a point where to improve care, there need to be fewer “judgment calls” left to individual health care providers, and more intricate safety systems in place to dictate how health care is delivered? The industry often cited by those who are trying to systematically improve the quality of health care is the airline industry. An industry that is remarkably complicated and yet remains remarkably safe due to its stringent adherence to checklists, guidelines, and systems designed for the sole purpose of safety.


One of the more recent adoptees of the belief that the health care industry could learn a thing or two from the airline industry is Capt. Chesly “Sully” Sullenberger, the pilot who landed the commercial airliner on the Hudson back in 2009. Sullenberger describes the current state of health care as “balkanized” and strives to end death by human error in the health care industry. Some estimates put the number of deaths in the United States from medical errors every year at 200,000—well over 500 every day. Sullenberger makes the sobering point that if this were happening in airline industry—hundreds of thousands of people dying every year from aviation errors—“there would be a national ground stop. Fleets would be grounded. Airports would close. There would be a presidential commission. The NTSB would investigate. No one would fly until we had solved the problems.”


Applying the safety concepts that have worked so well in the airline industry to the health care industry seems a common sense idea. Certainly one that Tom and I believe in and we anticipate writing future posts outlining the positive influence litigation can have on this idea. For now, we would encourage you to read Kyle Cheney’s full article on Sullenberger. -Ryan