What is the difference between an “error of judgment” and “negligence”

What Is the Difference Between an “Error of Judgment” and “Negligence”

In determining whether the actions of a healthcare professional constitute either an error in judgment or medical negligence, delicate investigation is required. The difference lies in whether the healthcare provider used reasonable skills and had the necessary training to make decisions consistent with professional standards.

Understanding this distinction is especially important in obstetrics, for critical judgment may mean the difference between life and death. In addition, specifying deviations from the ordinary standard of care also helps those who have received substandard health care find justice. 

If you believe you have been a victim of obstetrical malpractice or negligence and may require a birth injury lawyer, this article explores the legal complexities associated with the terms “error of judgment” and “negligence,” providing insights into their distinctions. 

Obstetrical Malpractice Overview

During delivery and prenatal care, if physicians, obstetricians, gynecologists, or any healthcare professionals deviate from recognized standards of pregnancy and harm either the mother, baby, or both, the resulting harm is called Obstetrical malpractice.

This deviation can manifest in various ways, from diagnostic errors to inadequate intervention during labour or delivery. In such cases, lawsuits alleging professional negligence are not uncommon, highlighting the critical need to distinguish between a genuine error in judgment and actionable negligence.

Error of Judgment

An error of judgment refers to a circumstance in which a healthcare practitioner, notwithstanding a decision resulting in an unfavourable consequence, behaved reasonably and per the information accessible to them at the given moment. 

Put differently, it suggests that the healthcare provider reached a decision based on their optimal judgment and knowledge at that specific point. In instances of obstetric malpractice, situations requiring rapid decisions by medical experts are frequent. 

Errors may involve decisions related to the timing of interventions, the choice of delivery methods, or the management of unforeseen complications.

Legal Implications of “Error of Judgment”

In legal terms, an error in judgment is viewed more leniently than negligence. If the decision-making aligned with accepted medical practices, and other professionals would have made the same choice in similar circumstances, then the error of judgment is considered a reasonable action.

Expert witnesses may be vital in supporting the defence’s argument. Professionals in obstetrics, possessing specialized knowledge, may testify that the healthcare provider’s decision aligns with accepted medical practices. It reinforces the argument that the error lies in judgment rather than negligence.

The focus of legal scrutiny may shift from the decision-making process to the outcome. If the unfavourable outcome was an unforeseeable consequence of a reasonable decision, the legal system might be more inclined to perceive it as an unfortunate outcome rather than actionable negligence.

Legal Precedents

Legal precedents emphasize that an error in judgment may lead to an unfavourable outcome, but doesn’t inherently signify negligence. Notable cases like Ghiassi v. Singh and Bafaro v. Dowd underscore this distinction, underlining that an error in judgment is defensible when it aligns with reasonable care and the practitioner demonstrates the expected skill, knowledge, and judgment within their professional capacity.

Instances of “Error of Judgment” in Obstetrics

The following scenarios serve as examples to elucidate this concept:

1. Choice of Delivery Method

Scenario: Despite clear indications favouring a cesarean section for the safety of both the mother and the baby, a healthcare provider chooses a vaginal delivery.

Error of judgment: The decision was made based on clinical judgment, but it turned out to have unfavourable outcomes.

Note: An error of judgment doesn’t necessarily imply negligence, if made with reasonable care and consideration of available information.

2. Interpretation of Fetal Monitoring

Scenario: During labour, the fetal heart rate shows some variability, and there’s a disagreement among healthcare providers regarding its significance.

Error of judgment: The interpretation of fetal monitoring may vary based on clinical judgment.

Note: If the interpretation aligns with standard practices and is reasonable, it may not be considered negligent.


Conversely, negligence entails a violation of the standard typically expected of reasonably prudent healthcare providers, resulting in harm. It goes beyond a mere mistake, representing a failure to adhere to the recognized standards within the medical community.

Holding healthcare professionals accountable for medical negligence is crucial for ensuring responsibility and upholding the standard of care in the medical field. The onus is on the plaintiff to show that the conduct was not just an error of judgment but constituted negligence.

Instances of “Medical Negligence” in Obstetrics

The following scenarios serve as examples to clarify the concept of medical negligence:

1. Improper Use of Forceps or Vacuum Extractors

Scenario: During delivery, the healthcare provider uses forceps/vacuum extractors improperly, causing trauma to the baby.

Negligence: When forceps or vacuum extractors usage moves away from standard protocols, resulting in injuries.

Outcome: Improper use of delivery instruments can cause injuries such as brachial plexus injuries, facial nerve damage, or skull fractures in the newborn.

2. Failure to Monitor Fetal Distress

Scenario: During labour, the healthcare provider fails to adequately monitor the baby’s heart rate and other vital signs, missing signs of fetal distress.

Negligence: When the healthcare provider does not follow established protocols for continuous fetal monitoring during labour.

Outcome: If not promptly addressed, fetal distress can lead to oxygen deprivation, brain damage, or even stillbirth.

3. Inadequate Communication and Informed Consent

Scenario: The healthcare provider fails to adequately communicate the risks, alternatives, and benefits of interventions or procedures, leading to uninformed decision-making.

Negligence: When there is a failure to obtain informed consent or if communication is inadequate.

Outcome: Patients may undergo procedures without a clear understanding of potential risks, and complications may result from a lack of informed decision-making.

Proving Obstetric Negligence

The legal standard for determining negligence in obstetrical malpractice cases involves establishing the following elements:

Duty of Care

To establish a duty of care, it is necessary to prove that there was a doctor-patient relationship. This relationship shows that the healthcare provider was obligated at all stages of medical intervention (including during pregnancy and childbirth) toward providing high-quality health services.

Breach of Standard of Care

You must prove that healthcare providers deviated from what someone in the profession would have done under similar circumstances to establish a breach of standard of care. Establishing this breach relies on expert testimony.


Establish a direct link between the breach of the standard of care and the harm the mother or baby suffered. It involves demonstrating that negligence was a significant factor in causing the injury or complications.

Injury or Harm

You must make a direct causal connection between the breach of the standard of care and harm suffered by either mother or baby. It involves proving that negligence was a contributing factor in the injury or complications.

Take Action Today with the Guidance of a Birth Injury Lawyer

If your child has experienced a birth injury due to medical error or the negligence of a healthcare professional, seek legal advice and guidance promptly. Sommers Roth & Elmaleh, a renowned medical malpractice firm in Canada, specializes in litigating obstetrical negligence actions. 

Our experienced birth injury lawyers have handled many cases, obtaining compensation for millions of dollars on behalf of affected families. 

Call Sommers & Roth’s birth injury lawyers today at 1-844-940-2386 or contact us online to explore your legal options and fight for your and your family’s rights.

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