OPINION

Justice McCAFFERY.

We granted review in this medical malpractice case to consider whether the trial court properly gave an "error in judgment" jury instruction, i.e., an instruction that physicians are not liable for their "errors in judgment" when making medical decisions.

I

The Superior Court's opinion sets forth the factual background, as follows:

Passarello v. Grumbine, 29 A.3d 1158, 1160-61 (Pa.Super.2011).

Appellees commenced an action against Dr. Grumbine, a second doctor, and Blair Medical on July 28, 2003, and the case remained in litigation until entry of a defense verdict on April 29, 20091 (collectively, Dr. Grumbine and Blair Medical shall be referred to hereafter as "Appellants"). At trial, Appellees presented expert testimony that Dr. Grumbine had deviated from the standard of care by failing to refer Anthony for further testing on August 2.2 Appellants responded with expert testimony that Dr. Grumbine had complied with the standard of care because she had chosen an alternate diagnosis "that fit the symptoms and made sense." Notes of Testimony (N.T.) Trial, 4/24/09, at 36; R.R. 431a. As the trial neared its close, Dr. Grumbine and Blair Medical each submitted proposed points for charge, including differing versions of the "error in judgment" charge. Blair Medical's proposed version of the charge read: "Under the law, physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it is proven that an error of judgment was the result of negligence." Points for Charge of Blair Medical Associates at 3, ¶ 7. Dr. Grumbine's proposed version of the charge stated, "If a physician employs the required judgment and care in reaching his or her diagnosis, the mere fact that he or she erred in the diagnosis will not render them liable, even though their treatment was not proper for the condition that actually existed." Points for Charge of Rowena Grumbine, M.D. at 7, ¶ 17.

The trial judge held a charging conference and stated that all of Blair Medical's proposed points for charge would "either be read or covered." N.T. Trial, 4/24/09, at 57; R.R. at 452a. However, the judge did not say exactly which, if any, of Blair Medical's proposed charges it would actually read to the jury, and counsel for Appellees did not raise any objection at that time. The judge then proceeded to discuss Dr. Grumbine's points for charge in detail, and when the judge addressed her proposed "error in judgment" charge, counsel for Appellees objected that the instruction would not be proper in this case. See id. at 85-86; R.R. at 480a-81a. However, the judge did not rule on the objection at that time. Because the conference was taking place on a Friday, the judge adjourned the conference and reconvened it on the following Monday morning, at which time Appellees' counsel again objected to an "error in judgment" charge.

Following the charging conference, the trial judge instructed the jury. It first instructed the jury on the objective standard of professional negligence, explaining that "a physician [whose] conduct falls below the standard of care is negligent." N.T. Jury Charge, 4/27/09, at 13; R.R. at 529a. The judge told the jury that it was not to "rely on hindsight" and consider a "disastrous result" to be "proof of negligence," but should rather "determine whether [Dr. Grumbine] failed to have and exercise ordinary skill, care, and knowledge of a specialist, in this case a pediatrician, in the circumstances which were present at the time." Id. at 35; R.R. at 551a. The judge then read Blair Medical's version of the "error in judgment" charge, and instructed the jury, "Under the law[,] physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence." Id. at 35-36; R.R. at 551a-52a.

Immediately following the jury charge, the judge called counsel to sidebar to entertain objections to the charge. Appellees' counsel said he was renewing the objections he had made during the Friday charging conference as well as the objection he had raised during the charging conference that morning to the "error in judgment" instruction. Counsel then asked the judge, "[D]o I have those objections preserved, Your Honor?" The judge replied, "It's my understanding you do." Id. at 37; R.R. at 553a. The judge denied the objections, and the jury retired to deliberate; it later returned a verdict in Appellants' favor.

Appellees filed timely post-trial motions arguing, among other things, that the trial court had improperly given an "error in judgment" charge. Approximately one month after Appellees had filed their post-trial motions — and before the trial court ruled on post-trial motions — the Superior Court filed its decision in Pringle v. Rapaport, 980 A.2d 159 (Pa.Super.2009) (en banc). In that case, the trial court had given an "error in judgment" charge very similar to the one given here, instructing the jury that, "Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgments [sic] unless it is proven that an error of judgment was the result of negligence." Id. at 164. The Superior Court in Pringle held that such an instruction should never be given because it "wrongly suggests to the jury that a physician is not culpable for one type of negligence, namely the negligent exercise of his or her judgment." Id. at 173. The court also stated that the instruction incorrectly "injects a subjective element into the jury's deliberations" because it "improperly refocuses the jury's attention on the physician's state of mind at the time of treatment," rather than on the standard of care, which is objective. Id. at 174. The court also pointed out that the Committee on Proposed Standard Civil Jury Instructions had, since 1981, rejected the charge as confusing, and that this Court had never decided whether the charge was appropriate.3

Approximately one year after the Superior Court decided Pringle, the trial court denied Appellees' post-trial motions and entered judgment in Appellants' favor. Appellees appealed to the Superior Court, which vacated and remanded. Passarello, supra. The Superior Court first concluded that Appellees had properly preserved their challenge to the "error in judgment" charge, stating that the trial court had had "an opportunity to assess its use of the instruction." Id. at 1163 n. 1. The court then applied Pringle, rejecting Appellants' argument that it should not "retroactively" do so because Pringle had been decided after Appellees had filed their post-trial motions.

Appellants then each filed individual Petitions for Allowance of Appeal, which we granted to review the following issues:

Passarello v. Grumbine, 615 Pa. 585, 44 A.3d 654 (2012) (Blair Medical's appeal); and

Passarello v. Grumbine, 615 Pa. 588, 44 A.3d 656 (2012) (Dr. Grumbine's appeal).

Appellees correctly note that these five issues, as developed by Dr. Grumbine and Blair Medical, have areas of significant overlap, although the issues are stated differently by those parties. Specifically, Dr. Grumbine's argument for her Issue 3 overlaps and parallels Blair Medical's development of both of its two issues. Part of Dr. Grumbine's argument in her issue 2 also has echoes in Blair Medical's arguments. Thus, we shall address the issues accepted for appeal in a logical fashion, starting with Dr. Grumbine's argument that Appellees waived their objection to the "error in judgment" charge.

II

Dr. Grumbine, but not Blair Medical, argues that Appellees waived their challenge to the error in judgment charge by only objecting during the charging conference to Dr. Grumbine's version of the charge, in light of the fact that the trial court gave Blair Medical's version of the "error in judgment" charge, not Dr. Grumbine's. Dr. Grumbine further contends that Appellees waived their argument on appeal that the error in judgment charge should never be given by making only the narrower argument at trial that the instruction was not proper in this case.4

Dr. Grumbine's first argument, that Appellees had failed to object to Blair Medical's point for charge as well as her own point for charge on "error in judgment," rings hollow for several reasons. First, Appellees here alleged essentially a series of acts of negligence — those of Dr. Grumbine — while co-defendant Blair Medical was sued only in an agency capacity. Thus, any error in judgment charge pertained to the singular behavior of Dr. Grumbine, and, accordingly, only one objection was necessary for the trial court to be placed on notice as to possible defects in an error in judgment charge pertaining to that party's behavior. The requirement for a timely and specific objection at trial is to "ensure that the trial judge has a chance to correct alleged trial errors." Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114, 116 (1974). Here, the trial judge was given just such an opportunity (indeed several opportunities) by Appellees' objections on the record.

Further, we cannot agree with Dr. Grumbine's argument that her error in judgment point for charge and that of Blair Medical were different creatures, "entirely distinct,"5 requiring that an objection be lodged as to each. Dr. Grumbine asserts that her point for charge "made no reference to a physician being liable for negligence," whereas Blair Medical's point for charge stated "that a physician is liable for an error in judgment if that error in judgment is caused by negligence." Dr. Grumbine's Reply Brief at 3 n.3 (emphasis in original). Setting aside the fact that the essential question in a medical malpractice action is whether a health care provider was negligent, as to which question the jury would necessarily be instructed by the court, our view of Dr. Grumbine's proposed point for charge is that it actually incorporated the concept of negligence by using other language. Dr. Grumbine's proposed charge states: "If a physician employs the required judgment and care in reaching his or her diagnosis, the mere fact that he or she erred in the diagnosis will not render them liable, even though their treatment was not proper for the condition that actually existed." Points for Charge of Rowena Grumbine, M.D. at 7, ¶ 17 (emphasis added).

There is no substantive difference between Dr. Grumbine's error in judgment point for charge and that of Blair Medical. Indeed, the trial court considered the two instructions to be "equivalent." See Trial Court Opinion, disposing of Appellees' request for post-trial relief, dated September 7, 2010, at 2. Thus, we see no merit to Dr. Grumbine's contentions regarding waiver.

Objections to jury instructions must be made before the jury retires to deliberate, unless the trial court specifically allows otherwise. Pa.R.C.P. 227(b). The record here makes it clear that Appellees lodged their objections before the jury began its deliberations. As noted above, Appellees' counsel told the court before the jury commenced deliberating that he wanted to preserve both the objections he had made during the charging conference on the previous Friday, and the objection to the "error in judgment" charge he had raised that morning. Appellees' timely objection satisfied Rule 227(b)'s requirements. Indeed, the trial court told Appellees' counsel that it was its understanding that the objection was preserved.

Accordingly, we conclude that there is no basis for Dr. Grumbine's argument that the import, nature, and language of her proposed point for charge and those of Blair Medical's proposed point for charge required Appellees to object to both proposed points for charge.

Dr. Grumbine's second argument is that Appellees preserved an objection only to the application of the error in judgment to the facts of the instant case, and not to an error in judgment charge generally. In their post-trial motions, Appellees asserted that they had objected at trial to an error of judgment charge for two reasons. The first reason was that the instant case involved a failure to test for a diagnosis, rendering the charge inapplicable. The second reason was that the trial court should have given the charge relating to medical malpractice cases found in the Pennsylvania Suggested Standard Jury Instructions, which had specifically rejected the error in judgment instruction. Plaintiffs' Motion for Post-Trial Relief, filed May 5, 2009, at 2-3. The trial transcript, however, suggests that when Appellees first made their objection during the pre-charge conference, they were relying only on the first reason. See N.T. Trial, 4/24/09, at 86; R.R. at 481 a, comments of Appellees' attorney ("There is specific law in medical malpractice cases dealing [with] when the error of judgment charge needs to be given and when it [does not]."). Unfortunately, there apparently was no transcription of the continuation of the pre-charge conference that occurred three days later, when the issue of the appropriateness of the error in judgment charge was purportedly also discussed among counsel and the trial judge. See Appellees' Brief at 23 n.7.

It is clear that Appellees objected to the error in judgment charge at least as it applied to the instant case. Additionally, after such objection — and prior to the entry of the judgment in the instant case — the Superior Court rejected error of judgment charges as inappropriate in all medical malpractice cases. As we determine infra, Appellees were entitled to present argument based on Pringle's alteration and clarification of then-existing law. Accordingly, we conclude that Appellees did not waive their objection and were entitled to argue on appeal that Pringle supported the grant of a new trial.

III

A

On the merits, Dr. Grumbine and Blair Medical argue several points challenging the Superior Court's (1) blanket prohibition of error in judgment instructions in medical malpractice cases; and (2) determination that a new trial was required in this case as a consequence of the error in judgment instruction given here by the trial judge.

Blair Medical contends that we should abrogate the relevant holding of Pringle because "error in judgment" instructions properly instruct the jury on the principle that "if a physician employs the required judgment and care in arriving at his diagnosis, the mere fact that [the physician] erred in his diagnosis will not render him [or her] liable, even though his treatment is not proper for the condition that exists...." Blair Medical's Brief at 10, quoting Smith v. Yohe, 412 Pa. 94, 194 A.2d 167, 170-71 (1963). Blair Medical observes that this Court has never considered the concept of a physician's error in judgment in the context of a jury charge, but that several Superior Court cases have upheld error in judgment charges. In one case, the court determined that a "mistake of judgment" instruction was appropriate in a case involving a difficult diagnosis because such instruction "properly directed the jury to base its verdict on whether a physician had failed to follow proper medical procedure and not infer a breach of the standard of care merely from [the patient's] unfortunate result." Havasy v. Resnick, 415 Pa.Super. 480, 609 A.2d 1326, 1336 (1992). In another case, the appellant had argued that the trial judge's "mere error of judgment" charge was improper because the evidence showed that the defendant physician had not exercised any medical judgments. The Superior Court determined that the appellant's argument was "puzzling, at best," in that the evidence apparently demonstrated that the physician had made a series of decisions ("medical judgments") in rendering care to the patient, which the Superior Court detailed. That court then asserted that after its review of the record, it had come to the conclusion that the jury charge was "clear, accurate, and more than adequate." Blicha v. Jacks, 864 A.2d 1214, 1219-20 (Pa.Super.2004).6

Blair Medical next asserts that in Pringle, the Superior Court had a valid reason for determining that the trial court's particular jury instruction in that case would have been confusing for a jury, thus providing a basis for rejecting — in that case — the propriety of an error in judgment instruction. By contrast, Blair Medical asserts, the relevant charge in the present case is distinguishable, was accurate as a matter of law, and was not of a nature that the jury would find confusing. Specifically, Blair Medical notes that in Pringle, the jury was relevantly charged: "The rule requiring a physician to use his best judgment does not make a physician liable for a mere error in judgment provided he does what he thinks best after careful examination." Blair Medical's Brief at 12-13, quoting Pringle, supra at 164 (emphasis by the Superior Court). However, in the present case, Blair Medical notes that the jury was relevantly charged: "Under the law[,] physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence." Blair Medical's Brief at 13, quoting N.T. Jury Charge, 4/27/09, at 35-36; R.R. at 551a-52a. Based on the statements it highlights from the jury charges in the two cases, Blair Medical asserts that the jury in the instant case was directly informed that a physician would be liable for a negligent exercise of judgment, but that the jury in Pringle was not so instructed.7 Further, Blair Medical asserts that the jury instruction in the present case did not in any fashion invite the jury to consider Dr. Grumbine's motivations or subjective thoughts in connection with evaluating the doctor's exercise of her judgment; rather, the jury was firmly instructed on the objective elements of the negligence that Appellees were required to prove.

Finally, Blair Medical asserts that a "blanket proscription" of error in judgment instructions in all medical malpractice jury instructions is error, because such instructions may address important aspects of certain medical malpractice cases. Blair Medical argues that a properly crafted error in judgment charge (which Blair Medical asserts was made in the instant case) serves to inform the jury that a doctor may make reasonable decisions that, in hindsight, might be proved to be "wrong." Blair Medical's Brief at 14.

Dr. Grumbine echoes Blair Medical's argument with the contention that "Pringle's [relevant] holding is wrong-headed as a matter of law and should be overturned." Dr. Grumbine's Brief at 27. In support, Dr. Grumbine posits that this Court had "listed the `error in judgment' concept as one of the eight `well settled principles in [the medical malpractice] area of the law.'" Id. at 28, quoting Yohe, supra at 170-71. Dr. Grumbine also agrees with Blair Medical that the reasons supporting the grant of a new trial in Pringle were not present in the instant case, rendering erroneous the Superior Court's application of Pringle to this case.8

Primarily, however, Dr. Grumbine contends that the Superior Court ignored longstanding precedent by failing to consider the jury charge in its entirety in order to determine whether the alleged error was prejudicial to the losing party before granting a new trial. See Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291, 1305 (1985) ("In reviewing a trial judge's charge, the proper test is not whether certain portions taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party."); Schmidt v. Boardman Co., 958 A.2d 498, 515 (Pa.Super.2008), aff'd on other grounds, 608 Pa. 327, 11 A.3d 924 (2011) (cited by Dr. Grumbine and quoting same). Dr. Grumbine argues that the Superior Court violated this precedent by simply singling out two purportedly offending sentences (pertaining to the error in judgment instruction) out of a 50-page typewritten charge as the basis for declaring a new trial, rather than examining the entire charge to determine whether these two sentences were so highly prejudicial to Appellees as to warrant a new trial. To illustrate her point, Dr. Grumbine quotes the far more extensive language from the trial court's charge devoted to the concept of professional negligence and the standard of care, to which no objection was lodged by Appellees. Along these lines, Dr. Grumbine asserts that the jury instructions, as a whole, correctly informed the jury that a physician is not liable for non-negligent exercises of judgment. Thus, Dr. Grumbine asserts that a new trial should not have been granted because "the trial court's entire [jury] instruction was a fair statement of Pennsylvania law." Dr. Grumbine's Brief at 23 (emphasis in original).

Appellees respond first to Dr. Grumbine's argument that the Superior Court erred by focusing solely on the trial court's error in judgment instruction without considering the jury charge in its entirety by contending that the Superior Court had, in fact, considered the jury charge in its entirety and had come to the conclusion that the charge, thus viewed, had prejudiced Appellees, thus warranting a new trial. Appellees cite several portions of the Superior Court's opinion in support of their argument. Appellees first note that the Superior Court agreed with Dr. Grumbine that the trial court had given a correct instruction on the objective standard of care and that there were distinctions between the charge given in the present case and the "more extensive" error in judgment charge given in Pringle. Passerello, supra at 1167. However, even after weighing those factors, the Superior Court determined: "[T]he court's charge nevertheless introduced Dr. Grumbine's state of mind as an element for the jury's consideration. In so doing, the charge attenuated the objective standard of care imposed by Pennsylvania law and obfuscated the manner in which the jury might properly weigh the evidence." Id.

Appellees note that the Superior Court's reasons for its conclusion included that court's viewing the jury charge in the context of Dr. Grumbine's closing argument, which the court determined had interjected a subjective approach to the evidence. Appellee's Brief at 36-37, citing Passerello, supra at 1167, and citing to the closing arguments of Dr. Grumbine. Appellees observe that the Superior Court noted the interrelationship between Dr. Grumbine's stated theory of the case and the trial court's charge to the jury as follows:

Passerello, supra at 1167, quoting N.T. Jury Charge, 4/27/09, at 30; R.R. at 546a.

Based on the above statements and analysis of the Superior Court in this case, Appellees argue that not only did the Superior Court correctly view the error in judgment instruction in the context of the entire charge to the jury, but that it also correctly concluded that the error in judgment instruction, within this context, was not harmless as a matter of law.

Appellees next offer several grounds for arguing that Pringle was correct in holding that error in judgment instructions should never be given in medical malpractice cases. Appellees contend that the en banc Superior Court in Pringle properly addressed the need to resolve the split that had developed among Superior Court panels on the propriety of ever giving an error in judgment instruction, and further needed to ensure that juries are given instructions that do not have a tendency to mislead or confuse the material issues that juries are asked to decide. Appellees highlight the analysis of the Committee on Proposed Standard Civil Jury Instructions, several pre-Pringle decisions of the Superior Court, and decisions from the courts of other jurisdictions, all of which have concluded that the error in judgment charge is inappropriate because of its propensity to mislead or confuse juries and to interject a "subjective element" into deliberations that are meant to analyze facts by objective standards. Further, Appellees assert, contrary to Appellants' positions, that this Court has never endorsed giving an error in judgment instruction. Rather, they argue that to the extent this Court has discussed the concept of "error in judgment," it has done so only in the context of legal discussion, without manifesting any expectation that statements regarding complex matters of legal analysis would be directly used as part of the language of a jury instruction. See, e.g., Yohe, supra.

B

Our proper standard and scope of review of the issues raised by Appellants, with respect to error in judgment charges, the specific charge given in this case, and whether a new trial is warranted here, are as follows:

Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A.2d 1061, 1069-70 (2006) (citations, quotation marks, and ellipses omitted).

C

The initial substantive issue raised by Appellants in this case is whether an "error in judgment" jury instruction for at least some medical malpractice cases should remain a viable jury instruction in this Commonwealth. Pringle, supra, determined that this instruction should no longer be given, and that court subsequently applied Pringle to the instant case to reverse the trial court and remand for a new trial. A review of Pringle's analysis and holding would therefore be salutary.

In Pringle, the Superior Court began its analysis with a history of the physician's standard of care in Pennsylvania jurisprudence and the role of "judgment" in defining that standard. The court noted that in several medical malpractice cases decided in the latter part of the nineteenth and the early part of the twentieth centuries, this Court had used the phrase "error in judgment" in an "effort to explain the interrelated notions that a doctor does not promise a cure and that mistakes by doctors are not necessarily the result of negligence." Id. at 165-66, citing and quoting Williams v. LeBar, 141 Pa. 149, 21 A. 525 (1891); English v. Free, 205 Pa. 624, 55 A. 777 (1903); and Ward v. Garvin, 328 Pa. 395, 195 A. 885 (1938). However, the Superior Court noted that in Ward, this Court relied upon Duckworth v. Bennett, 320 Pa. 47, 181 A. 558 (1935), a "two schools of thought" case, as authority for the proposition that physicians will not be held liable for "mere errors in judgment." The "two schools of thought" doctrine holds that a physician will not be liable for choosing, in the exercise of her or his judgment, one of two or more accepted courses of treatment where competent medical authority is divided as to the proper course. See Pringle, supra at 166-67 (citing and quoting Duckworth, supra at 559). The Superior Court concluded that the "two schools of thought" doctrine does not apply to cases where, as in Pringle and the instant case, there has been a misdiagnosis. Id. at 166.

The Superior Court then observed that this Court, twenty-four years after Duckworth, set forth its "first substantive restatement of the physician's standard of care" in Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835 (1959). In that case, we engaged in no discussion concerning whether a physician's conduct should be viewed in the context of whether she or he had made an "error in judgment." Rather, we observed that the "well-settled" standard of care required of a physician or surgeon is whether the physician employed "the required skill and knowledge" necessary "to exercise the care and judgment of a reasonable" person. Id. at 838.

The Superior Court then turned its attention to Yohe, supra, a case relied upon by Appellants herein. In Yohe, this Court cited eight principles of medical malpractice law, one of which was that "a physician is not liable for an error of judgment," citing to LeBar, supra; Duckworth, supra; and Ward, supra. Yohe, supra at 170. However, in Yohe, we rejected the physician's argument that his misdiagnosis of the plaintiff was an error in judgment, based on the record in that case. As the Superior Court noted in its Pringle decision, we relevantly held:

Id. at 168, quoting Yohe, supra at 173.

The Superior Court then observed that in the subsequent case of Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), this Court made no mention of "error in judgment" as a consideration relevant to determining a physician's standard of care. Rather, after rejecting the physician's argument that he could not be held negligent because his failure to pay attention to written warnings associated with a drug and his prescribing the drug over the telephone without having seen the patient was an accepted practice among his local physicians, this Court emphasized that the standard of care of physicians in Pennsylvania was an objective one. That is, "physicians must have and employ the same skill and knowledge typically used by physicians in the medical profession, and must keep themselves informed of contemporary developments in the profession." Pringle, supra at 170, citing Incollingo, supra at 217.

The Superior Court next observed that in 1981, ten years after Incollingo, the Committee on Proposed Standard Civil Jury Instructions issued its first set of Proposed Standard Civil Jury Instructions. The Committee established a basic instruction for a physician's standard of care in a medical malpractice case that remains in effect today: "A physician must have the same knowledge and skill and use the same care normally used in the medical profession. A physician whose conduct falls below this standard of care is negligent." Pa. SSJI (Civ) 14.10 (4th ed. 2011). Since 1981, the Committee's standard of care instruction has never contained a reference to a physician's judgment or included any "error of judgment" language. Indeed, as the Superior Court noted, the Committee's omission of "error of judgment" language initially was, and remains, intentional. The Superior Court quoted the following excerpts from the Committee's explanation:

Pringle, supra at 170-71, quoting Pa. SSJI (Civ.) 11.01 (2009) (Subcommittee Note) (with internal citations omitted).9

The Superior Court thus observed that, "[f]or these reasons, the Committee determined that the principle expressed by an "error of judgment" charge (i.e., that a physician may make an error that does not rise to the level of a breach of the standard of care) is adequately covered in a jury charge by the basic instruction on the professional standard of care." Id. at 171, citing to Pa. SSJI (Civ.) 11.01 (2009) at 3-4 (Subcommittee Note).

The Superior Court then conducted a survey of decisions from that court which either endorsed or rejected "error in judgment" instructions. Id. at 171-72, citing and discussing cases. In an effort to reconcile these apparently conflicting decisions, the Superior Court issued a ruling that would impact all medical malpractice cases in the Commonwealth. Noting that "the purpose of charging the jury is to clarify issues which the jurors must determine,"10 the court concluded that, with respect to the fundamental issue in medical malpractice cases of whether the defendant violated the applicable standard of care, an "error of judgment" instruction "is inherently confusing for juries and thus has no place in medical malpractice cases." Id. at 173. The court gave two reasons for its conclusion, as follows:

Id. at 173-74 (citation, quotation marks, and footnote omitted).

In arriving at these determinations, the Superior Court rejected arguments that our reference in Yohe, supra, to the principle that a physician's "error in judgment" will not necessarily render her or him liable for medical malpractice required a different result. The Superior Court concluded that (1) such reference in Yohe constituted nothing more than obiter dicta; (2) in Yohe, we in fact held that a physician's incorrect diagnosis, caused by a failure to order medically appropriate tests within the standard of care, could not be justified as an exercise of judgment; (3) even if the "error of judgment" statement in Yohe remains an accurate statement of "a nuance of Pennsylvania law," this fact does not lead to the result that the language should or may be employed for a jury charge because, as that court recognized, "[j]ust because an appellate court uses certain language in an opinion does not necessarily mean it is appropriate for a lay juror;" and (4) our Court has never held that an error of judgment charge is appropriate nor have we sustained a decision justifying the use of an error of judgment charge. (Id. at 174-75, quoting D'Orazio v. Parlee & Tatem Radiologic Assocs. Ltd., 850 A.2d 726, 728 (Pa.Super.2004)). Additionally, the Superior Court observed that a "substantial number" of other jurisdictions have ruled that error in judgment instructions are inappropriate in medical malpractice cases. Id. at 172 n. 6-9 (citing cases).

Accordingly, for these several reasons, the Superior Court in Pringle held that (1) the inclusion of an error in judgment instruction in the trial court's jury charge in that case likely misled or confused the jury and, therefore, the trial court committed an error of law that necessitated a new trial; and (2) error in judgment instructions should no longer be included in any medical malpractice jury charges.

D

Appellants both challenge the validity of the Superior Court's conclusions in Pringle, and argue alternatively that, at the very least, these conclusions should be limited to the factual scenario of the jury charge in Pringle and not extended to the instant case, which, they contend, involved a trial with a differently worded jury charge. However, we conclude that some of the Superior Court's concerns regarding the dangers of the phrase "error in judgment," or like phrases, when given as an instruction to a jury that is asked to evaluate a possible breach of an objective standard of care — and which concerns are shared by this Court's Committee on Proposed Standard Civil Jury Instructions — have undeniable resonance.

Appellants argue that a properly worded "error of judgment" instruction is either necessary or useful to convey to the jury several principles. First among these is the principle stated in Yohe, supra, that "if a physician employs the required judgment and care in arriving at his diagnosis, the mere fact that [the physician] erred in his diagnosis will not render him [or her] liable, even though his treatment is not proper for the condition that exists...." Id. at 170-71, quoted in Blair Medical's Brief at 10. Another principle reflected in an "error in judgment" instruction is that this instruction "properly direct[s] the jury to base its verdict on whether a physician [] failed to follow proper medical procedure and not to infer a breach of the standard of care merely from [the patient's] unfortunate result." Havasy, supra at 1336, quoted in Blair Medical's Brief at 10. As stated by amicus curiae, the Pennsylvania Medical Society, a properly phrased error in judgment charge may inform the jury that "medical judgments can prove to be incorrect yet conform to the standard of care." The Pennsylvania Medical Society's Brief at 12. Amicus further asserts that the "origin" of the error in judgment instruction is to make explicit that an adverse outcome for a patient is not, on its own, a basis for a finding of negligence. Id. at 23, citing Joseph H. King, Jr., Reconciling the Exercise of Judgment and the Objective Standard of Care in Medical Malpractice, 52 Okla.L.Rev. 49, 57 (Spring 1999).

However, we do not interpret the holding in the instant case, or in Pringle, as finding fault with the substance underlying error in judgment instructions, but rather only with the terminology utilized, which the Superior Court concluded could confuse a jury by asking it, on the one hand, to determine whether a physician was negligent because of a failure to adhere to an objective standard of care, but also to consider, on the other hand, that the physician's "error" in the exercise of his or her "judgment" concerning an objective standard of care is not negligence. We shall discuss infra whether we believe there is potential for juror confusion arising from the phrase "error in judgment," or similarly employed phrases. What we observe now is that Appellants' arguments facially demonstrate that the essential principles that underlie error in judgment instructions are capable of being stated in a straightforward manner without incorporating phrases such as "error in judgment." As illustrated by Appellants' arguments, if a defendant desires an instruction that conveys the principle that an unfortunate result does not by itself establish negligence, he or she may request from the trial court an instruction, in the appropriate case, that an unfortunate result does not by itself establish negligence.11 There is no need to resort to the use of ambiguous and problematic phrases such as "error in judgment" or "mistake in judgment." Indeed, one premise of the determination by this Court's Committee on Proposed Standard Civil Jury Instructions to not include "error in judgment" or like instructions is that these instructions are simply a manner of illustrating the standard of care, but one with the potential to confuse a jury; they do not articulate additional or independent requirements of the standard of care. Pa. SSJI (Civ) 14.10 at 5, Subcommittee Note (4th ed. 2011). See also, e.g., Hirahara v. Tanaka, 87 Haw. 460, 959 P.2d 830, 834 (1998) (explaining that an "error in judgment" instruction, with its propensity to confuse a jury, need not be given when such instruction "is adequately covered by alternate instructions that a physician's liability cannot be premised solely on a harmful result if he or she conforms to the professional standard of care.").

Hirahara is only one of the many cases from other jurisdictions that have determined that error in judgment or similar instructions are potentially confusing to juries and should not be given, except, perhaps, under limited circumstances. As explained by the Supreme Court of South Dakota, which had surveyed decisions from several jurisdictions ruling upon the propriety of error in judgment instructions:

Papke v. Harbert, 738 N.W.2d 510, 517 (S.D.2007) (footnotes citing to cases omitted).

The latter instance referenced by the Papke court pertains to cases where a jury is instructed that a physician's "bona fide error in judgment," "honest error of judgment," "mere error in judgment," or a "good faith" medical decision, is not in itself negligence. Qualifiers such as "bona fide," "honest," or "mere" have been invariably determined by other courts to be erroneous when preceding the phrase "error in judgment," even where "error in judgment" instructions are held to be proper when thus not qualified. See, e.g., Ezell v. Hutson, 105 Wn.App. 485, 20 P.3d 975, 977 (App.Div.2001) (citing to cases and explaining "that such terms as `honest' and `good faith' erroneously suggest [to the jury that] the physician is liable only if he or she acted dishonestly or in bad faith."). Indeed, our review of case law from other jurisdictions illustrates the fact that "error in judgment" instructions may take a variety of forms (e.g., "error of judgment;" "mistake in judgment") and be subject to countless embellishments by trial courts. See generally King, Reconciling the Exercise of Judgment and the Objective Standard of Care in Medical Malpractice, supra; George L. Blum, Appropriateness of "Error in Judgment" Charge in Medical Malpractice Actions, 6 A.L.R.6th 311 (2005).

Directly concerning the form of instruction in the instant case, however, jurisprudence from other jurisdictions appears to be weighted toward the determination that even unembellished "error in judgment" instructions are erroneous unless possibly confined to "two schools of thought" cases.12 The analysis of the Oregon Supreme Court is representative:

Rogers v. Meridian Park Hospital, 307 Or. 612, 772 P.2d 929, 933 (1989) (footnote omitted).

The South Dakota Supreme Court arrived at similar conclusions:

Papke, 738 N.W.2d at 527 (citations and footnotes omitted).13

In arriving at its own conclusions, our Superior Court in Pringle surveyed the above decisions and those of several other courts. See Pringle, 980 A.2d at 172 n. 6, citing to Hirahara, supra; Rogers, supra; and Papke, supra; as well as Bickham v. Grant, 861 So.2d 299, 303 (Miss.2003); Yates v. Univ. of West Virginia Bd. of Trustees, 209 W.Va. 487, 549 S.E.2d 681, 689-92 (2001); Rooney v. Medical Center Hosp. of Vermont, Inc., 162 Vt. 513, 649 A.2d 756, 760 (1994); Jefferson Clinic, P.C. v. Roberson, 626 So.2d 1243, 1247 (Ala. 1993); Peters v. Vander Kooi, 494 N.W.2d 708, 712 (Iowa 1993); and Sleavin v. Greenwich Gynecology and Obstetrics, P.C., 6 Conn.App. 340, 505 A.2d 436, 440 (1986).14 Again, our Superior Court determined that error in judgment instructions (1) wrongly suggest to the jury that a physician is not culpable for one type of negligence, namely the negligent exercise of his or her judgment; (2) wrongly inject a subjective element into the jury's deliberations, namely, an irrelevant focus on the physician's state of mind at the time of treatment; and (3) may lead a jury to conclude that only judgments made in bad faith are culpable, even though a doctor's subjective intentions while rendering treatment are irrelevant to the issues placed before a jury in a medical malpractice case. Pringle, supra at 173-74.

Appellants offer no compelling argument that a trial court must utilize "error in judgment" or similar language in order to convey to the jury principles pertaining to a physician's standard of care. As illustrated, trial courts are capable of clearly articulating such relevant principles without employing phrases such as "error in judgment." Additionally, Appellants have not put forth any persuasive argument that counters the concerns expressed by the Superior Court, the Committee on Proposed Standard Civil Jury Instructions, and many foreign jurisdictions, that phrases such as "error in judgment" have the strong potential to confuse, rather than to clarify for, the jury the appropriate standard of care in medical malpractice cases. At most, Appellants refer to older Superior Court cases that have approved such language or to articulations by this Court regarding the principle that "a physician is not liable for an error of judgment." See Yohe, supra at 170.

However, the inclusion of a particular phrasing in a court opinion is not the same as concluding that such language ought to be read verbatim to a lay jury. As recognized by several courts, legal decisions are written primarily for those versed in the law, and a passage in an opinion — even though a correct statement of the law — may not be an appropriate way to explain the law to a jury. See Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020, 1026 (1978) (observing that principles articulated in the Restatement of Torts that have value in providing guidance to the bench and bar are not necessarily appropriate for use in a jury charge: "Thus the mere fact that we have approved Section 402A, and even if we agree that the phrase `unreasonably dangerous' serves a useful purpose in predicting liability in this area, it does not follow that this language should be used in framing the issues for the jury's consideration."); see also Rogers, 772 P.2d at 931 ("An instruction that accurately quotes or faithfully paraphrases an appellate decision is not necessarily beyond reproach. Indeed, `it is not advisable in charging the jury to use the exact words of an appellate court opinion.'") (quoting Ireland v. Mitchell, 226 Or. 286, 359 P.2d 894 (1961)). Thus, we reject Appellant's contention that our discussion in Yohe, supra, or other cases, regarding certain principles relevant to medical malpractice jurisprudence, compels us to uphold the error in judgment instruction in the instant case.

Because Appellants have failed to advance a convincing argument against the weight of opinion that error in judgment instructions pose palpable and substantial risks of confusing juries with respect to the standard of care in medical malpractice cases, and because Appellants have illustrated, rather than refuted, the lack of any necessity to use error in judgment instructions, we see no reason to disturb the well-considered holding of the Superior Court that error in judgment instructions should not be used in jury charges in medical malpractice cases.15 Accordingly, we find no merit in Appellant's arguments that the Superior Court erred in this case by generally rejecting error in judgment instructions in medical malpractice cases, and we hold that the Superior Court correctly determined that such instructions should not be so utilized.

Similarly, we see no merit in Appellants' arguments that the error in judgment instruction was appropriate in the instant case, even if it may not have been in Pringle. Again, Appellants have failed to overcome the well-considered reasons of the Superior Court for rejecting generally error in judgment instructions in medical malpractice cases. Moreover, Appellants' argument that the error in judgment instruction was appropriate in the instant case is more closely linked to their next contention, which we now address.

E

Appellants next argue (Dr. Grumbine, most particularly) that the Superior Court also erred in this case by ordering a new trial because an erroneous jury instruction does not automatically mean that a new trial is warranted. Rather, Appellants contend, correctly, that the reviewing court must view the charge in its entirety in order to determine whether the erroneous instruction constituted a fundamental error in the context of the whole. See Quinby, 907 A.2d at 1069-70. Appellees do not dispute the foundational legal principle involved here; rather, they contend that the Superior Court did view the erroneous instruction within the appropriate context when considering whether a new trial was warranted.

Appellees are correct. Here, the Superior Court's opinion indicates that it devoted considerable attention to the trial court's error in judgment instruction within the context of the entire jury charge and Appellant's related arguments to the jury, which the trial judge actually referenced in his charge. Passarello, 29 A.3d at 1167-69. The Superior Court's legal conclusion that Appellees were prejudiced by the error in judgment instruction is unmistakably derived from this comprehensive review. The court reasoned:

Id.

Significant to our review is the fact that Appellants make no effort to address the above analysis of the Superior Court. Rather, Dr. Grumbine argues that the error in judgment charge should be viewed only in context with other select portions of the trial judge's jury instruction. See Dr. Grumbine's Brief at 20-24.16 Accordingly, we conclude that Appellants have failed here to assert a meritorious argument.

IV

Finally, we granted review also to determine whether the Superior Court properly applied its holding in Pringle to the case at bar, since Pringle was decided while the post-verdict motions were pending in this case.

The general rule in Pennsylvania is that appellate courts apply the law in effect at the time of appellate review. Commonwealth v. Housman, 604 Pa. 596, 986 A.2d 822, 840 (2009). "This means that we adhere to the principle that a party whose case is pending on direct appeal is entitled to the benefit of changes in law which occur[] before the judgment becomes final." Blackwell v. State Ethics Comm'n, 527 Pa. 172, 589 A.2d 1094, 1099 (1991) (citations and internal quotation marks omitted). However, this general rule is not applied rotely. Id. Whether a judicial decision should apply retroactively is a matter of judicial discretion to be decided on a case-by-case basis. Id.; Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441, 444 (2000). To determine whether a decision should have retroactive effect, a court should first determine whether the decision announced a new rule of law. Surrick, supra at 444. If the decision announced a new rule, the court should then consider whether: (1) retroactive effect will further or hinder the purpose of the new rule; (2) the parties will be unfairly prejudiced because they relied on the old rule; and (3) giving the new rule retroactive effect will detrimentally affect the administration of justice. Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146, 1151 (1997).17

Appellants argue that Pringle established a new rule of law because it explicitly removed the discretion trial courts previously possessed to give an "error in judgment" charge. They maintain that the "new" rule should not apply in this case because: (1) the rule's purpose — which they assert is to improve clarity in jury instructions — will not be served by applying it here, because as a whole, the jury instructions in this case were clear and correctly stated the law; (2) there has been substantial reliance on the "old" rule because it was long-standing; and (3) retroactive application will require Appellants and the trial court to have a new trial, and treats this case differently from other cases in which the instruction was given and the verdict has not been reversed on appeal.

Although Pringle did announce a new rule of law, the Superior Court properly applied its decision in Pringle here. A decision announces a new rule of law if it overrules prior law, expresses a fundamental break from precedent that litigants may have relied on, or decides an issue of first impression not clearly foreshadowed by precedent. Fiore v. White, 562 Pa. 634, 757 A.2d 842, 847 (2000). Pringle meets that definition because it overruled prior decisions of the Superior Court permitting "error in judgment" jury instructions. See, e.g., Schaaf v. Kaufman, 850 A.2d 655, 666 (Pa.Super.2004).

The Superior Court nonetheless properly applied Pringle to this case because all three factors weigh in favor of retroactive application. Applying the rule here will serve the purpose of Pringle: ensuring that juries in medical malpractice cases properly apply the objective standard of professional negligence. See Pringle, supra at 173-74. That purpose will be furthered here by the award of a new trial at which the court does not give such an instruction. Indeed, justice has been hampered here by the giving of the instruction, which was potentially confusing and misleading, and seemed to contradict other jury instructions that accurately explained the objective standard of care.

The second factor, reliance, also weighs in favor of retroactive application. Appellants, and other defendants in their position, did not rely on the "error in judgment" instruction as a substantive matter of law that alters or modifies the essential standard of care. Rather, they sought to use the terminology "error in judgment" as an illustration of the standard of care. However, even without the instruction, defendants in medical malpractice cases, so long as the evidence permits, will be able to argue to the jury and obtain the appropriate jury instructions regarding any matter that the error in judgment instruction was originally intended to illustrate; they will just no longer be able to request for a point of charge the use of the phrase "error in judgment" or similar language.

Finally, because applying the rule in this case will have no deleterious effect on the administration of justice, the third factor likewise poses no impediment to retroactive application. Appellants' observation that applying the rule here will require the parties and the trial court to undergo a second trial will be true in any case where a court overrules prior precedent. If we were to endorse Appellants' approach, court decisions could not even apply in the case in which they were announced if doing so would require further proceedings, which is clearly not the case. See, e.g., Christy v. Cranberry Volunteer Ambulance Corps, Inc., 579 Pa. 404, 856 A.2d 43 (2004); Commonwealth v. Ardestani, 558 Pa. 191, 736 A.2d 552 (1999). Appellants' claim that retroactive application will result in unequal treatment is similarly unsound. The rule will properly be applied to any other case where an objection to the instruction has properly been preserved and in which a final judgment has not been entered.

V

For the foregoing reasons, the order of the Superior Court is affirmed, and we remand to the trial court for proceedings consistent with this opinion.

Justices BAER, TODD, and STEVENS join the opinion.

Chief Justice CASTILLE files a dissenting opinion.

Justice SAYLOR files a concurring and dissenting opinion.

Justice EAKIN files a dissenting opinion in which Chief Justice CASTILLE joins.

DISSENTING OPINION

Chief Justice CASTILLE.

I respectfully dissent, and I join Mr. Justice Eakin's Dissenting Opinion. The Majority affirms the award of a new trial premised upon an alleged "error" never raised at trial: specifically, appellees did not object to the "error in judgment" charge on the basis that it was substantively misleading, confusing, and prejudicial.1 Rather, as Justice Eakin details, appellees' objections at trial and in post-trial motions focused on the distinct ground that such a charge was inappropriate under the facts of this case and that the charge was redundant because its essence was adequately covered by the standard jury instructions, which rendered an additional, specific charge unnecessary. Because the substance of the trial and post-trial objections made does not encompass the discussion forming the basis for the Superior Court's decision, which is approved by the Majority's affirmance here, the Court's decision is an exercise is obiter dictum.

I write further to address two points: retroactivity and prejudice. Concerning retroactivity, I have difficulty with the Majority's discussion of the Superior Court's decision in Pringle v. Rapaport, 980 A.2d 159 (Pa.Super.2009) (en banc), holding that an error in judgment jury charge is always inappropriate in medical malpractice actions. This Court has noted that a judicial decision that announces a new rule of law or "overrule[s], modif[ies] or limit[s] any previous case from this Court" is generally not applied retroactively due to the effect on litigants who relied on the previous decisional rule made by this Court. Kendrick v. District Attorney of Philadelphia County, 591 Pa. 157, 916 A.2d 529, 538 (2007) (quoting Commonwealth v. Eller, 569 Pa. 622, 807 A.2d 838, 844 (2002) (emphasis in original)). However, "[n]ot every opinion creates a new rule of law. Generally, where we have yet to rule explicitly on an unresolved legal issue, the first decision providing a definitive answer announces a new rule of law. When this Court issues a ruling that overrules prior law, expresses a fundamental break from precedent, upon which litigants may have relied, or decides an issue of first impression not clearly foreshadowed by precedent, this Court announces a new rule of law." Fiore v. White, 562 Pa. 634, 757 A.2d 842, 847 (2000) (emphasis supplied).

The Majority states that "Pringle did announce a new rule of law" and approves application of that new rule to retroactively find that the trial here was unfair. Maj. Op. at 308. As a threshold matter, the Superior Court's proper institutional role does not encompass formulating or announcing new rules of law. When it comes to these sorts of decisional "rules" involving matters of Pennsylvania law, the formal purpose of the Superior Court is to implement the decisional law of this Court. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985).2 As this Court indicated through the emphasis on the "from this Court" language in Eller, Kendrick and Fiore, "new" rules are generally the province of this Court. See also In re L.J., ___ Pa. ___, 79 A.3d 1073 (2013) (emphasis on this Court announcing new rules); Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875 (2009) (Castille, C.J., concurring) ("putting aside the question of whether the Superior Court should purport to promulgate new `rules' or refine old ones in procedural matters"). Trial courts and intermediate appellate court panels properly can, and often do, opine regarding what those jurists believe to be the proper decision in a case based upon the application of principles deriving from constitutional provisions, statutes, formal procedural rules, and decisional law. And, of course, the lower courts are frequently faced with novel issues, whether it be a novel issue of law or settled law invoked in a novel scenario, a clash of competing principles, etc.

"New rules" and concomitant questions of retroactivity are not always of one kind. In speaking of such "new rules" and concerns of retroactivity, we can only be talking of procedural rules promulgated by this Court (whether through our Rules Committees process, or in the context of a specific case requiring broader supervisory guidance), see, e.g., Commonwealth v. Holmes, ___ Pa. ___, 79 A.3d 562 (2013); or decisional "rules" arising from this Court's controlling interpretations of substantive law, whether the rule ultimately derives from constitutional provisions, see, e.g., Commonwealth v. Henderson, 616 Pa. 277, 47 A.3d 797 (2012), statutes, see, e.g., Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95 (2007), or formal procedural rules. See, e.g., Commonwealth v. Brock, ___ Pa. ___, 61 A.3d 1015 (2013).

Strictly speaking, the Superior Court does not establish new rules. To be sure, it may do its best to apply existing law to new scenarios, and those applications create a body of governing law within that court, including law on points this Court has yet to consider. Once we accept a case for review, however, the question is not whether some prior decisional "rule" of the Superior Court should apply retroactively; the question is the retroactive or prospective effect of the rule this Court announces or approves in our decision.

There can be no doubt that the Court today has established a new substantive rule. This Court has never approved (or disapproved) an "error in judgment" jury instruction in a medical malpractice case before today — much less have we ever remotely held that the issuance of such a charge is reversible error. As Justice Eakin points out, appellees are not entitled to application of this new rule. A litigant can only benefit from changes in the law occurring during the pendency of a case where the litigant properly preserved a challenge bottomed on the same theory leading to the new rule. Dissenting Op. at 314 (citing Blackwell v. Commonwealth State Ethics Commission, 527 Pa. 172, 589 A.2d 1094, 1099 (1991)). Appellees did not properly preserve, as a basis for their challenge to the error in judgment charge, the basis for the holding in Pringle, which the Majority adopts as our new rule.

Even assuming that appellees raised the objection that the Superior Court and the Majority believe they raised, and further assuming that appellees are entitled to the Court's new substantive rule, I fail to see how appellees were prejudiced by the charge at issue here.

Examining the trial court's jury charge in its entirety, rather than focusing on discrete passages, it is clear that the court's charge was not problematic. The charge on negligence principles began with a basic definition of the concept of negligence as the absence of the ordinary care that a reasonably prudent person would exercise in the circumstances presented and that negligence can result from an act or a failure to act. N.T. Jury Charge, 4/27/09 at 12-13. The court then provided a comprehensive description of professional negligence:

Id. at 13-14.

Later in the charge, following a discussion of factual cause, burden of proof and damages, the court read selected points for charge submitted by the parties and identified them as such. As to Dr. Grumbine, the court reiterated the standard of care charge:

Id. at 33, 35.

As to Blair Medical's requested points for charge, the court charged the jury regarding errors in judgment:

Id. at 35-36.

There is, in my view, nothing erroneous or confusing in these jury instructions. Physicians, like lawyers and judges, do use judgment. The charge here fairly and accurately described general negligence concepts and then related those concepts to professional negligence. The trial judge repeatedly informed the jury that the guiding principles at issue were the standard of care of a professional in Dr. Grumbine's position and the reasonableness of her conduct as a professional. The court's brief error in judgment charge related back to the negligence charge by directly stating that a physician is liable for an error of judgment resulting from negligence. The twin notions that a physician is liable for negligence and that she does not escape liability for negligence by claiming an error in judgment were made crystal clear in the trial judge's charge to the jury.

The plaintiff in a medical malpractice case, of course, is free to stress that an exercise of professional judgment that represents a deviation from the standard of care should result in liability. But, there is no reason for courts to work backwards and reformulate charges so that they better square with the slanted arguments, and "spin," preferred by one side or the other.

Notably, as Justice Eakin points out, the error in judgment charge disapproved by the Superior Court in Pringle went a significant step farther than the charge in this case by stating:

Pringle, 980 A.2d at 164. This distinct directive potentially confused and misled the jury regarding the concepts of reasonable care and negligence, perhaps leading the Pringle jury to believe that an error in judgment relieves a physician of liability in all instances. It may be that the Pringle panel correctly decided that case in light of the distinctive charge given. The fact of the distinction, however, should serve as a warning before upsetting jury verdicts following upon very different jury charges, in the rush to establish some preferred prescriptive "rule."

Obviously, there are some instances in which an error in judgment instruction is inappropriate. Specifically, medical malpractice actions involving straight negligence claims that the physician's conduct fell below the standard of care, such as, for example, where a surgeon leaves implements or surgical equipment inside a patient's body, would not be amenable to an error in judgment instruction. It is not difficult to envision, however, a scenario where a physician has two or more different potential paths to follow in treating a patient, including judgment calls such as whether to order certain diagnostic tests or to prescribe certain medications given the potential complications of the tests or drugs, and then used judgment in a manner that arguably comported with the standard of care, but where the ultimate result for the patient was not good. In that instance, it would be appropriate to charge the jury that it can find that a physician whose actions fall within the standard of care is not liable for an error in judgment. The jury would then determine whether the physician's exercise of judgment was reasonable and within the standard of care. Of course, trial courts should emphasize that a physician's conduct must always meet the applicable standard of care. It is only when a physician acts within the standard of care that a mere error in judgment can excuse liability.

This matter is just such a case, and the trial court's charge in this instance allowed the jury to determine if Dr. Grumbine's exercise of judgment was within the standard of care. It apprised the jurors that Dr. Grumbine's conduct must have been reasonable and within the standard of care applicable to Dr. Grumbine's specialty of pediatrics for her to be found not liable. In its brief error in judgment charge, the court again introduced the concepts of reasonable care and the standard of care. I do not believe that the charge in this case could possibly have prejudiced appellees.

I respectfully dissent.

CONCURRING AND DISSENTING OPINION

Justice SAYLOR.

I join Part I of the majority opinion, concur in the result as to Part II, generally support the majority's rationale in Parts III(A) through (D), and dissent relative to Parts III(E), IV, and V.

Briefly, I am aligned with the majority's decision to reconsider the appropriateness of distinguishing between an error in judgment and medical negligence, since the relevant concepts can be explained to lay jurors in a more straightforward fashion and the notion of a non-negligent error in judgment has the potential to confuse. On this point, my difference with the majority is centrally one of degree, in terms of the potential impact of injection of a brief reference to errors in judgment into an otherwise appropriate jury charge. Nevertheless, based on the possibility of some uncertainty or confusion, I join the majority in establishing a bright-line rule proscribing the errors-in-judgment instruction in medical malpractice cases, albeit I would do so only prospectively, prohibiting the trial courts from using the phraseology in jury instructions in medical malpractice cases.

In terms of the result, I respectfully dissent based on the noted difference in degree and my position that the per se rule should be prospective.

DISSENTING OPINION

Justice EAKIN.

As I would find appellees' argument contending the "error in judgment" instruction is inherently confusing was waived by their failure to object on this ground at trial and further take issue with the majority's adoption of Pringle v. Rapaport, 980 A.2d 159 (Pa.Super.2009) (en banc), I respectfully dissent. While the majority's recitation of the facts surrounding appellees' "error in judgment" instruction challenge is vague, I find the particulars salient to the waiver analysis. During the charging conference, appellees' counsel noted the following regarding Dr. Grumbine's proposed "error in judgment" instruction:

N.T. Charge Conference, 4/24/09, at 85-86. Disregarding other potential arguments regarding whether these statements amounted to a proper objection and whether such objection preserved appellees' challenge to the "error in judgment" instruction actually given at trial from Blair Medical's proposed instructions, these comments clearly state a challenge to the applicability of the "error in judgment" instruction to the facts of this case, not an assertion the charge should not be given because it is inherently confusing.1

In their motion for post-trial relief, appellees challenged the "error in judgment" instruction on two bases, neither of which even hinted at it being inherently misleading:

Plaintiff's Motion for Post-Trial Relief, 5/5/09, at 2-3 (internal citations omitted). In fact, appellees' assertion the "error in judgment" instruction is inherently misleading does not appear until their brief in support of their post-trial motion, wherein appellees completely abandon their initial challenges and rely solely on Pringle.2

While the majority correctly notes litigants are entitled to the benefit of changes in the law that occur during the pendency of their case, such is true only where they have properly preserved a challenge concerning the basis on which the law has been altered. See, e.g., Blackwell v. Commonwealth State Ethics Commission, 527 Pa. 172, 589 A.2d 1094, 1099 (1991) (holding our prior decision declaring statute unconstitutional was to be applied retroactively "to all cases pending at the time of that decision in which the issue of the constitutionality of [the statute] was timely raised and preserved"). Where, as here, the objection was on a wholly different basis, appellees should not be permitted to challenge pursuant to Pringle under the guise that a challenge to the "error in judgment" charge on any basis gives them the blanket benefit of any new law regarding any facet of that instruction.

I also find the majority's adoption of Pringle's wholesale ban on the "error in judgment" instruction in medical malpractice cases troubling, particularly given the majority's failure to quote, in full, the "error in judgment" instruction from that case, and its attendant failure to analyze the additional language contained therein. Further, the majority's characterization of the "error in judgment" instruction in this case as "very similar" to that given in Pringle is misleading, especially in light of the majority quoting only a portion of the Pringle instruction in support of this determination. See Majority Op., at 290. The omitted portion of the instruction reads as follows:

Pringle, at 164 (citation and additional emphasis omitted). As the majority notes, in determining the "error in judgment" charge "has no place in medical malpractice cases[,]" the Superior Court reasoned:

Id., at 173-74. Where, as in this case, the jury is properly instructed on the standard of care and the additional language concerning the physician's state of mind is omitted, the Pringle court's concerns — and with them the basis for its "error in judgment" charge ban — are, in my opinion, obviated. To the extent a reasoned analysis could come to an alternative conclusion, the majority fails to engage in the same; instead, it focuses its analysis on the terms "error" and "judgment," to the exclusion of the remainder of the jury charge given, and on its determination "that the essential principles that underlie error in judgment instructions are capable of being stated in a straightforward manner without incorporating phrases such as `error in judgment.'"3 Majority Op., at 301.

For these reasons, I respectfully dissent.

Chief Justice CASTILLE joins this dissenting opinion.