The ‘Professional Judgment’ Rule: The Line between Medical Judgment and Deviation from Good Medical Practice

By: Barbara D. Goldberg and Iryna S. Krauchanka
Monday, May 4, 2015

The “professional judgment” rule shields medical providers from the imposition of liability merely because a treatment that a doctor elected to pursue proved ineffective.

While the existence of the “professional judgment” rule is crucial to any medical practitioner, mental health providers have a heightened need for the protections it affords because the prediction of the future course of a mental illness involves a measure of “calculated risk” and judgment of high responsibility, even more so than other specialties.

Is a mental health provider liable if the course of treatment he/she elected caused injury to the patient or others? Or, in the worst case scenario, is a mental health provider liable if his or her patient commits suicide? The answer is no, provided it can be shown that the provider’s actions are insulated by the “professional judgment” rule.

The test is twofold. Did the provider conduct a proper examination and evaluation? And, did the provider elect a course of treatment within a range of medically accepted choices?

In order to invoke the protection of the rule, the mental health provider must ensure that the evaluation of the patient was careful and thorough. While some aspects, such as obtaining the patient’s physical and mental history, evaluating the patient’s current condition, and assessing suicide risk factors, may seem obvious, there is no clear-cut test to determine whether the evaluation was “proper.” The standard leaves room for experienced plaintiffs’ attorneys with a thorough understanding of the “professional judgment” rule to obtain expert opinions stating that the evaluation was not proper because a specific question was not posed or a certain record was not obtained.

The same is true of the second prong: the plaintiffs’ experts predictably conclude that it was not a medically accepted option to release a psychiatric patient from a hospital, or that continuing out-patient therapy with a suicidal patient was not an acceptable alternative and that involuntary hospitalization was required. The experts, of course, also opine that had the provider elected one of the other “accepted” options, it is more likely than not that suicide would have been prevented.

With so much leeway, one wonders whether the rule actually offers the much-needed safeguard to permit mental health providers to confidently provide their services. Fortunately, it does, and there are two layers of defense.

First, the courts recognize that “hindsight is 20/20,” and reject expert opinions that consist of backwards reasoning. Accordingly, generalized and speculative expert conclusions that in retrospect, something should have been done differently, or opinions that are contrary to the facts, will not overcome the rule.

On the provider’s part, it is of utmost importance to “cover all bases” in evaluating a mental health patient, to consider the available treatment alternatives, and to thoroughly document each step undertaken during the evaluation, the elected course of treatment, and the rationale behind it. Although practice guidelines do not serve as a standard of medical care, it is advisable to consult the applicable guidelines in evaluating and treating a mental health patient, if only in anticipation of the plaintiff’s expert’s invocation of same in support of his or her opinion.

While the protection is far from absolute, New York courts generally recognize the purpose of the “professional judgment” rule and are not hesitant to foreclose liability against providers who demonstrate that they elected what they considered to be the most effective course of treatment, based upon a careful evaluation of a patient, even if the decision proved to be erroneous, and even if it resulted in injury or death.

Barbara Goldberg And Iryna KrauchankaBarbara D. Goldberg is a Partner and Head of the Appellate Department of Martin Clearwater & Bell LLP. Iryna S. Krauchanka is an Associate and member of the Appellate Department at Martin Clearwater & Bell LLP. For more information, please visit