Court overruled trial court's instuction on 'error of judgment': case on point: Passarello v. Grumbine, 2011 PA Super 199,1399 WDA 2010 (9/9/2011)-PA.

Position:Medical Law Case of the Month - Case overview

ISSUE: In this Pennsylvania case the appellate court was confronted by the issue of whether or not the "error of judgment" instruction is prejudicial to a plaintiff in a malpractice case.

CASE FACTS: Anthony Passareilo's parents brought him to Dr. Rowena Grumbine and members of her staff at Blair Medical Associates, Inc. (Blair), many times since his birth on May 3,2001. They contacted Dr. Grumbine's office seven times during the week preceding his death on August 4, 2001. On July 27, Anthony's parents brought him to Dr. Grumbine's office concerned about the state of his health, reporting that he would take only 4 ounces of formula rather than the usual 6 or 7, that he was crying after feedings, and that he had a slight cough. On July 29 the parents Called Blair's "tele-a-nurse" phone service and reported that Anthony had experienced projectile vomiting, had been fussy for the previous five days, and was tired after feeding. They reported those symptoms later that day when they spoke with Dr. Grumbine by telephone. On July 30 Anthony's parents took him for an office visit with Dr. Grumbine and reported that he continued to have a slight cough and had vomited two to three times daily for the proceeding four to five days. Two days later, on August 1, during a follow-up office visit, the parents reported that Anthony was fussy, vomiting at times, was not sleeping, exhibited pain while feeding, and was wheezy afterward. Dr. Grumbine found the symptoms consistent with gastroesopogeal reflux and prescribed medication to treat that condition. She also immunized Anthony for DPT, Polio, Hemophilus Influenza Type B, Hepatitis B, and Pneumococcus. On August 2, the parents called the tele-a-nurse service and reported that Anthony's formula consumption had dropped to three ounces that day, that he was fussy and not sleeping, and was screaming as if in pain. They also reported that he had wet only two diapers that day and had a fever of 101 Degrees Fahrenheit despite administration of Tylenol every four hours. The doctor found the symptoms consistent with reaction to his immunizations of the previous day and concluded that he might also be in pain from acid reflux. On August 3, his parents took him to the ER at Altoona Hospital, where the Attending Physician, Dr. Holly Thompson, found him to be in severe respiratory distress and confirmed that his heart rate had fallen dangerously low. Despite intubation and use of a ventilator and other measures...

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