MEDICAL MALPRACTICE JURY INSTRUCTIONS

(including failure to diagnose cancer claims)

Medical malpractice is the failure to use reasonable care in treating a patient which results in injury. The medical malpractice plaintiff must prove the following: 

• that the physician failed to follow an accepted standard of diagnosis or treatment, 
• that the deviation was a material cause of the patient's injury. 
  
  Note that not every sad result or death constitutes malpractice.  Here are some defenses used in medical malpractice cases: 
  
  the type of treatment used was a matter of judgment, and the physician cannot be questioned for the exercise of his discretion or judgment,
  
  the ultimate outcome was due primarily to the patient's condition or disease, 
  
  
  Medical Malpractice Jury Charge
  
  Here is what the jury has been told in many medical malpractice cases (the specific language is being revised by a New Jersey Supreme Court committee
  
  "where, according to accepted medical practice, the manner is which diagnosis and/or treatment is conducted is a matter subject to the judgment of the physician, the physician must be allowed to exercise that judgment. The physician cannot be held
  liable if in the exercise of judgment he or she has, nevertheless, made a mistake. Where judgment must be exercised, the law does not require of the doctor infallible judgment. Thus, a physician
  cannot be found negligent so long as he or she employs such judgment as is allowed by accepted medical practice. If, in fact, in the exercise of his/her judgment a doctor selects on of two or more courses of action, each of which in the circumstances has
  substantial support as proper practice by the medical profession, the doctor cannot be found negligent if the course chosen produces  a poor result." Medical Malpractice Jury Instruction, Model Charge 5.36A 
  
  One commentator explains, this phrase in medical malpractice cases, "the physician cannot be held liable if in the exercise of his judgment, he nevertheless made a mistake," is confusing if not contradictory. A bad result is not a mistake. If the course chosen was objectively reasonable it should not be characterized as a mistake. A new instruction is being drafted to try to reduce that type of confusion in medical malpractice cases. The main point, however, that a doctor is not liable in malpractice for each poor result or choice of treatment remains. Specific proof of medical malpractice needs to be demonstrated.  Brown, Medical Malpractice Law 12 (ICLE 1999)
  
  
  Howard Gutman is a New Jersey attorney based in Parsippany, New Jersey, who specializes in failure to diagnose lung cancer claims.
  
  He is an honors graduate of Drew University, and graduate of the University of Michigan Law School, where he served as associate editor of the School's Journal of Law Reform. Mr. Gutman clerked at a Wall Street law firm, and was employed by a large New Jersey firm before establishing his own legal practice. He has appeared on Good Day New York, spoken at the National Press Club in Washington, D.C.  and been interviewed by NBC Nightly News. He is the author of an upcoming book entitled Lung Cancer and Meseothelioma which discusses the medical and legal aspects of lung cancer. 
  
  Contact Information
  
  Telephone 
  
  Howard A. Gutman, ]973-598-1980 (all consultations are without charge) FAX 
  973-257-9128 
  Postal address 
  230 Route 206, Flanders, New Jersey 07836 
  
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