'Error in judgment' jury instruction properly cuts room for doctor to escape liability for delay of surgery

Ischemic bowel in CT scan
(image by James Heilman, MD, CC BY-SA 3.0)

A doctor did not commit malpractice by awaiting test results before committing a patient to surgery for an ischemic bowel, even if permanent disability resulted from delay, the Massachusetts Appeals Court ruled before Memorial Day weekend.  The jury was properly instructed to allow leeway for error in judgment.

The plaintiff-patient presented at the emergency room at 1 a.m. in severe abdominal pain and with a history of gastric bypass surgery and hernia repair.  The defendant-doctor correctly suspected ischemic bowel, a blood blockage, and, at 3 a.m., sent the patient for a CT scan.  Based on the scan results, the doctor, at 4:23 a.m., ordered the patient to surgery, which commenced by 6:30 a.m.

The court summarized, "The main dispute at trial was whether [the doctor] acted within the standard of care by ordering the CT scan and waiting for the results, or whether he instead should have contacted a surgeon earlier."  On appeal from judgment entered for the doctor, the plaintiff charged that the jury was erroneously instructed to allow for error in the doctor's professional judgment.

Tracking model jury instructions (p. 5), the trial judge had instructed, inter alia:

"If, in retrospect, the physician's judgment was incorrect, it is not, in and of itself, enough to prove medical malpractice or negligence.

"Doctors are allowed a range in the reasonable exercise of professional judgment and they are not liable for mere errors of judgment so long as that judgment does not represent a departure from the standard of care resulting in a failure to do something that the standard of care requires or in doing something that should not be done under the standard of care.

"In other words, a doctor is liable for errors of judgment only if those errors represent a departure from the standard of care."

In affirming for the doctor, the court upheld the instruction.  The court reviewed a range of approaches in other states to "error of judgment" instruction in medical malpractice cases.  Hawaii and Oregon, for example, reject the instruction as posing too great a risk of confusion for the jury.  California accords with the Massachusetts position.  Other states, such as New York, use the instruction "only where there is evidence at trial that the physician chose from one of several medically acceptable alternatives."  In defense of the Massachusetts position, the court reasoned:

If properly formulated, such an instruction focuses the jury's attention on the standard of care, rather than the particular results in a case.  The instruction also recognizes the reality that, like all professionals, medical professionals need to make judgment calls between various acceptable courses of actions and they should not be found liable unless those judgment calls fall outside the standard of care.

The range of approaches demonstrates civil courts' long struggle with hindsight bias, especially in medical malpractice.  Hindsight bias is a natural human tendency to overestimate one's ability to make a decision correctly when viewing the decision as if in the past, ignorant of consequences, but from a perspective in the present, informed, in fact, by subsequently acquired information.  Shankar Vedantam talked about the problem on The Hidden Brain podcast in 2020.

Hindsight bias is not unique to medical malpractice, nor even to tort law.  Psychologists have documented hindsight bias in "accounting and auditing decisions, athletic competition, and political strategy," besides medicine.  As I wrote in a book on legal pedagogy in 2019, the cartoon South Park even invented a character, Captain Hindsight, to make fun of the human foible.  Hindsight bias inevitably contaminates every tort case, and countering it often is an appropriate strategy in legal argument and jury instruction.  For a juror, like any decision maker, it is difficult to reconstruct a past decision to the complete exclusion of undesired consequences.

The problem is exaggerated in the medical context because of the simplicity of the doctor-patient relationship.  A patient sees a doctor for one purpose, exclusively: to get better.  A doctor has one and only one job: to heal.  When healing is not the result that a patient experiences, and the jury has knowledge of that consequence, it is deceptively easy for jurors to confuse the doctor's failure to heal with a departure from the standard of care.  The Massachusetts instruction is designed to clarify the distinction for jurors.

The case is Paiva v. Kaplan, No. 19-P-1789 (Mass. App. Ct. May 28, 2021).  Justice Joseph M. Ditkoff authored the opinion of the unanimous panel that also comprised Justices Vuono and Milkey.  In a former post as general counsel of the District Court, Justice Ditkoff's responsibilities included drafting standardized jury instructions.

Extortion claim survives anti-SLAPP motion because defendants could not show petitioning connection

Haverhill, Mass., on the Merrimack River, 2008
(photo by Fletcher6 CC BY-SA 3.0)

Defendants could not raise an anti-SLAPP law against allegations of extortion, the Massachusetts Appeals court ruled before the Memorial Day weekend, because extortion did not relate plausibly to the defendants' constitutionally protected petitioning.

Plaintiffs Stem Haverhill and owner Caroline Pineau were applicants for zoning ordinance changes to permit a marijuana dispensary, since opened, in the downtown riverfront district of Haverhill, Massachusetts, a city 35 miles north of Boston, on the New Hampshire border.  Defendants Brad Brooks and Lloyd Jennings leased nearby residential and restaurant space and opposed the zoning changes.

Brooks and Jennings had had a scrap over property boundary with the previous owner of the Stem lot and had paid $30,000 to resolve the matter.  According to the complaint, Brooks and Jennings, apparently bitter over the former matter, demanded more than $30,000 from Pineau as the price of their acquiescence to zoning changes, no matter what the proposed use.

Stem and Pineau sued under the broad Massachusetts tort-and-consumer-protection statute, chapter 93A, as well as state civil rights law and common law defamation.  As often occurs in anti-SLAPP suits, both parties claimed the exercise of constitutional rights.  The plaintiffs were petitioning the government for zoning changes.  The defendants invoked anti-SLAPP upon the theory that the plaintiffs' civil charges of extortion were calculated to interfere with defendants' petition of government in opposition to the zoning changes.  (Read more about anti-SLAPP on this blog.)

The Massachusetts anti-SLAPP statute facilitates dismissal in favor of the defense by special motion upon the theory that litigation is being weaponized to chill the defendant's (or counter-defendant's) free exercise of the right to petition.  As construed by the Supreme Judicial Court, and quoted in part in the instant case, "a defendant seeking dismissal must show, at the threshold, that the claims against it 'are based solely on [its] exercise of its [constitutional] right to petition.'"

The extortion allegations did not fit the anti-SLAPP pattern, the court concluded, affirming the trial court on de novo review.  "Here, some of the defendants' statements to the Pineaus cannot reasonably be viewed as relating to the defendants' petitioning activities. As discussed, the defendants' focus was to obtain money from Pineau that the defendants knew Pineau did not owe to them."  Litigation in the Land Court could not produce a financial award, the court observed, thus undermining the defendants' position.  The court further reasoned:

Here the defendants did not merely oppose Pineau's proposed business, nor did they merely seek to negotiate their price.  Rather, the complaint describes a concerted and extended effort to coerce Pineau to pay, "or else"—complete with thinly veiled threats such as that Pineau "doesn't know who she is dealing with." The complaint thus adequately describes extortion—coercion by improper means that is designed to reap an economic reward. Such actions, in the business context, can be actionable under c[hapter] 93A, and given the facts alleged here, the suit is not based solely on petitioning activity as required by the anti-SLAPP cases.

Though the "solely" limitation is not found in the anti-SLAPP statute, the rule appropriately narrows the doctrine to its roots in protecting the right to petition.  Had the case proceeded in the Massachusetts anti-SLAPP process, the plaintiff would have been afforded an opportunity in rebuttal, also, to articulate a purpose apart from chilling the right to petition.  As the Appeals Court observed, "The Supreme Judicial Court has construed the statute several times, and has provided a framework, which has evolved over time, for analyzing whether an anti-SLAPP motion to dismiss should be allowed."

The case is Haverhill Stem LLC v. Jennings, No. 20-P-537 (Mass. App. Ct. May 26, 2021).  Justice John Englander authored the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Kinder.

Brood X cicadas taste terrible, but teach life lessons

A Brood X cicada that emerged early, in 2017
(Flickr by Katja Schulz CC BY 2.0)

If you're like me, the emergence of Brood X cicadas on the mid-Atlantic American seaboard induces more anxiety than is healthy.

I met Brood X face to face only once, when I was a teenager in Baltimore, Md., in 1987.  Every 17 years, the big red-eyed bugs realize that heaven is a place on earth, not under it, and they rise up with a screeching rhythm that's gonna get you.  Unlike locusts, cicadas are clumsy fliers and seem oblivious to humans as a threat.  So simply going outside invites cicadas to crash into your nicest denim jacket.

This time, the cicadas have failed to anticipate a new human threat.  People are popping cicadas onto the grill for purportedly finger-licking-worthy indulgence.  

Fried cicadas in China, 2013
(Flickr by Sharon Hahn Darlin, who didn't eat them, CC BY 2.0)

The appeal escapes me.  Persons of ordinary sensibilities are horrified by cicadas.  CBS News aptly labeled a story on Brood X, "Warning: Graphic images."  Haley Weiss is a normal person.  She wrote for The Atlantic:

Nowhere was that shellfish flavor more evident than in the oven-roasted cicada, though I was quickly distracted from that thought by the realization that the bug had exploded in my mouth like a Gusher. My tongue awash in bug guts, I reconsidered all the choices I’d made in my life that had brought me to that moment.

Oh, heads up, the FDA warns not to eat cicadas if you're allergic to shrimp.  Because that makes sense.

Well, another voice in the inexplicable camp of cicada supporters is my uncle, Tom Peri, a Baltimore biology teacher with a new video series about Brood X.  In four short installments, Buggin' Out with Mr. Peri is now available on Facebook from Notre Dame Preparatory School (NDP).  Each short installment teaches us, as Mr. Peri puts it, that cicadas "aren't the monsters you think they're going to be."  In episode 1, Mr. Peri promises us life lessons to be learned from the humble cicada, such as, "you're at your best when you're rising from a low point." 

Give Buggin' Out a try (ep. 1, 2, 3, 4), and especially share it with kids.  Maybe we can condition young minds to think differently from mine.  Then, in 2038, our only anxiety will be over which cicada food truck to choose.

An NDP upper-level science teacher with decades of classroom experience, Tom Peri won a prestigious Lead. Learn. Proclaim. Award from the National Catholic Educational Association in 2018.  He is a former headmaster of St. John’s Prospect Hall and Towson Catholic High School.

First Amendment advocate counsels caution, but doesn't rebuff, American right to be forgotten

Gene Policinski, Freedom Forum Senior Fellow for the First Amendment, published an op-ed last week for the "First Five" blog in which he counseled caution, but did not gainsay, newsroom "fresh start," or "right to be forgotten" (RTBF), programs.

Motivated in part by European notions of personal data protection, or informational privacy, especially RTBF, fresh start programs give persons covered in past news an opportunity to apply for the erasure of their coverage from online archives.  For NPR in February, David Folkenflik and Claire Miller reported on trending fresh start programs at major U.S. news outlets, such as The Boston Globe, "Revisiting the Past for a Better Future."  The NPR stories observed that these programs have come about in part because of European legal norms, even for newspapers beyond the reach of European legal jurisdiction.

In 2013, I wrote in a law review article that Americans' expectations of privacy, including RTBF, are in fact consonant with evolving European norms, but American law has been slow to keep pace.  The twin notions of finite punishment for past wrongs and of a second chance for persons who have paid their dues are quintessentially American, I wrote in a Washington Post op-ed in 2014.  Those values are reflected, for example, in Eighth Amendment jurisprudence and the Ban the Box campaign.

A prohibitive challenge to RTBF norms in the United States has been the First Amendment, which generally prohibits regulation of the republication of lawfully obtained and truthful information.  Sometimes for better and sometimes for worse, the free-speech absolutist bent of the First Amendment contrasts with a more flexible European approach to rights balancing.  Nothing about the First Amendment, however, precludes a private journalistic enterprise, such as the Globe, from erasing content voluntarily.

Like RTBF itself, fresh start programs have been criticized by free speech and mass communication scholars.  They remind us that journalism is the "first rough draft of history."  Tinkering with archives therefore vests private actors with a weighty, not to mention expensive, responsibility on behalf of the public.  Fresh start advocates point out that this work is not dissimilar to the exercise of news judgment in the first instance.  But the perspective problem is not eliminated by time.  There is no way to be sure that our present-day second-guessing of the historical record is more fair and objective than the original judgment, nor sufficiently preservationist for the future.

Old Slave Mart Museum, Charleston, S.C.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Just last week, I visited the Old Slave Mart Museum and other historical sites in Charleston, S.C.  To my eyes, the casual treatment of persons as property in the content of news media in times of slavery, as well as racism evident in later media during Jim Crow, is evidence of horrific injustice and a powerful reminder not to take for granted that one's present vision is free of bias.  What if that record had been erased, rather than preserved?  Could Henry Louis Gates Jr.'s "Finding Your Roots" have identified Ben Affleck's slave-owning ancestor (NPR) if history were redacted?

At the same time, I am an advocate for RTBF in some form, just as I support Ban the Box.  I am devoted to the First Amendment.  But digital media, that is, an internet that "never forgets," confronts our society with a new and qualitatively different challenge from any we have faced before.  Viktor Mayer-Schönberger well described in his 2011 book, Delete: The Virtue of Forgetting in the Digital Age, how forgetting, in addition to remembering, is an essential and well evolved part of human social culture.  A failure to forget is an existential threat.

Journalist and academic Deborah L. Dwyer has developed a useful and thought-provoking set of fresh start resources for journalists at her website, Unpublishing the News, cited by Policisnki.  I don't pretend to know whether fresh start, or European RTBF, or some other approach is the best solution, nor whether any of these models will stand the test of time.  I do believe that feeling our way forward is fascinating and necessary.

The op-ed is Gene Policinski, Perspective: News Outlets Need Caution in Offering a "Fresh Start," Freedom Forum (May 26, 2021).

Library podcast sights bike path highs in Rhode Island

Today is World Bicycle Day.

In tandem with National Bicycle Month in May, podcast Rhody Radio published a poignant episode featuring the East Bay Bike Path, a 14-mile paved trail running between Providence and Bristol, Rhode Island.

(Following link updated Sept. 2, 2025, to refer to Rhody Radio Archive at Overdueingit.org.) 

East Bay Bike Path, Bristol, R.I., June 2020
(RJ Peltz-Steele CC BY-NC-SA 4.0)

I run, walk, or bike on the path almost every day that I'm home.  I contributed a segment to the podcast (cue 7:30, running time about 2m30s), remembering walks with my late dog, Rocky. (Update, Sept. 2, 2025: to cue precisely, you'll have to visit the episode at the archive.)

Rhody Radio is a statewide collaborative library project. Now ongoing, the podcast was launched to keep communities engaged with their local libraries during the pandemic. This exemplary episode was organized and hosted by energetic Project Lead Jessica Faye D'Avanza (outdated link disabled), who has served as community engagement librarian for the Barrington (R.I.) Public Library since 2013. (Update, Sept. 2, 2025: Rhody Radio ended in May 2024. At the time of this writing, J. Faye D'Avanza (LinkedIn) is living in Asheville, N.C., where she is the artist, editor, writer, librarian, and creative facilitator for the Library of Care.)

The podcast is episode 43, Libraries, Bicycles, & Storytelling from the East Bay Bike Path, Rhody Radio (May 25, 2021).

Arts school awards BFA to creative talent in film, TV; 'Schitt's Creek' creator Levy says, 'follow through'

Last week, my daughter was awarded a well earned bachelor of fine arts degree by the film and television program at the Savannah College of Art and Design.  Look forward to shameless promotion of her future projects on this blog.

Dan Levy
(Vogue Taiwan CC BY 3.0)

The commencement speaker was Schitt's Creek creator Dan Levy.  He told graduates:

[F]ollow through. That’s the greatest advice I could give because so few people actually do it....  If you’re a writer and you want to write a book, or a book of poetry, or a television show, or a movie and it gets a bit daunting and intimidating and you get that writer’s block, don’t give up on it. Because at the end of that experience, you will have something....  Ninety-nine percent of the people out there have all the ideas in the world but never follow through on it. So if you are that person, that can walk into a room with something, some expression of your creativity that you have completed, you are so far ahead of a lot of people.

I always wanted to have a blog.

Boosted twice by war, then by economic catastrophe, paper money tells the story of America

Notaphilist, historian, and my uncle, Armand Shank yesterday gave a fascinating talk on the history of banking and paper currency in Maryland for the Historical Society of Baltimore County.

From Shank's collection: Currency issued in Baltimore
by the Continental Congress, 1777

The history of money is, of course, the history of America.  The British initially held strict control over currency in the colonies, Shank explained, and, lo and behold, British banking rates and policies seemed never to inure to the benefit of colonists.  Local currency, besides federal "IOUs," sometimes appeared of necessity and represented resistance.  Benjamin Franklin Bache, grandson of Benjamin Franklin, was a publisher of money and used samples his grandfather brought back from Europe as models.  Shank showed one of Bache's products.

Late in the 18th century, the Continental government issued national currency to raise millions of dollars for the Revolution.  Acceptance of the currency was expected, Shank said, for refusing it would brand one a traitor.  After independence, the First Bank of the United States was chartered in 1791, but lasted only until 1811, a casualty of Jefferson's state-centric vision of federation prevailing over Hamilton's wish for a strong central government.  State and local money came back on the scene in a big way, notwithstanding the ultimately decisive U.S. Supreme Court approval of the Second Bank of the United States in McCulloch v. Maryland, the 1819 staple of the modern constitutional law class.  Shank shared images of money from Baltimore County in the early 19th century.  Counterfeits proliferated.

Shank's first acquisition

In the 1860s, it was the need to raise money for war that again prompted the assertion and mass issue of federal currency.  The National Banking Acts of 1863 and 1864 strengthened and standardized national currency and, by 1865, phased out currency issued by state banks.  Local banks continued to issue currency, but only with the imprimatur of a national charter system.  Financial crises early in the 20th century led to reforms such as the first Federal Reserve Act, in 1913.  Federal reserve notes as we recognize them today emerged from a more vigorous standardization policy at the start of the Great Depression in 1929.

Quonset-style home in 1948
(Ed Yourdon CC BY-NC-SA 2.0)

Shank shared images from his collection of notes issued by the National Bank of Cockeysville, the town in northern Baltimore County where Shank grew up.  A $20 note of the bank was the first in Shank's collection, coming into his possession when he was a boy.  Circa 1950, Shank's father, Armand Shank, Sr., took Armand, Jr., to see Alexander D. Brooks, a cashier whose name appeared on the currency and who lived still in Cockeysville.  Alas, Shank said, Brooks, then in his 80s, had little recollection of his work for the bank.  Brooks died in 1956.

I have fond memories of being a kid in the 1970s, playing with cousins in the backyard of Armand Shank, Sr.'s home, where Armand, Jr., grew up, in Cockeysville.  The home, built in 1950 and still standing, was of a quonset-hut style, unusual today.  Many such homes were once built in this cost-effective style to meet the demand for housing after World War II: the homestead of the Baby Boom.  I didn't know that at the time, of course; I was more interested in the vast volume of lightning bugs that populated the yard.  I remember the smell of the place, fresh cut grass with a not unpleasant hint of motor oil.  It charms me now to think of another boy in that same environment, a generation earlier, one day awakening to a passion for American history told through the lineaments of banknotes.

Armand Shank is a member of the Board of Directors of the Historical Society of Baltimore County.   He is co-author of Money and Banking in Maryland: A Brief History of Commercial Banking in the Old Line State (1996).  He has a new article forthcoming on the subject for History Trails, a publication of the society.