Fergen v. Sestero ( 2015 )


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  •                                                     'Th!& opinion was filed for record
    at ,8:s:>o em on (\1'\:;;tM (:2-,?Q l-6
    ~
    A.Onard R. Carpenter
    ~~P#~ne Qeurt Clerk
    IN THE SUPREME COURT OF THE STATE OF WASHINGTON
    DANI FERGEN, individually and as  )
    personal representative of the    )
    ESTATE OF PAUL J. FERGEN,         )
    and minors, BRAYDEN FERGEN        )
    and SYDNEY FERGEN,                )    No. 88819-1
    individually,                     )    (consolidated with
    )    No. 89192-3)
    Petitioners,  )
    )
    v.                                )
    )
    JOHN D. SESTERO, M.D.,            )
    individually, and as an employee/ )    En Bane
    shareholder/agent of Defendant    )
    Spokane Internal Medicine and     )
    SPOKANE INTERNAL MEDICINE,)
    P.S., a Washington corporation,   )
    )
    Respondents.  )    Filed         MAR 1 2 2015
    ______________________             )
    )
    ANIL APPUKUTTAN,            )
    )
    Appellant,   )
    v.                          )
    )
    OVERLAKE MEDICAL CENTER, )
    PUGET SOUND PHYSICIANS,     )
    PLLC, ALAN B. BROWN, M.D.,  )
    MARCUS TRIONE, M.D., and    )
    TINA NEIDERS, M.D.,         )
    )
    Respondents. )
    -------------- )
    Fergen v. Sestero, No. 88819-1
    FAIRHURST, J.-"The most critical element of most medical malpractice
    claims based on negligence ... is the standard of care owed by the doctor to his or
    her patient." Watson v. Hockett, 
    107 Wn.2d 158
    , 162, 
    727 P.2d 669
     (1986). In order
    to provide a lay jury with the best possible understanding of this fundamental, yet
    often confusing, component of legal liability, supplemental standard of care
    instructions are sometimes used in addition to the basic instructions. One of these
    supplemental instructions is the exercise of judgment instruction, which reminds
    juries that if a physician exercises the reasonable care and skill generally required
    by his or her position, just choosing between alternate treatments or diagnoses does
    not make them legally liable for making a wrong choice.
    This is a consolidated case of two medical malpractice suits. In each case, an
    exercise of judgment jury instruction similar to 6 Washington Practice: Washington
    Pattern Jury Instructions: Civi/105.08 (6th ed. 2012) (WPI) was given. 1 Both juries
    found in favor of the defendants and both plaintiffs assign error. We affirm the trial
    court's use of the exercise of judgment jury instruction in both cases. We hold that
    evidence of consciously ruling out other diagnoses is not required; a defendant need
    only produce sufficient evidence of use of clinical judgment in diagnosis or
    1
    WPI 105.08 reads, "A physician is not liable for selecting one of two or more
    alternative [courses of treatment] [diagnoses], if, in arriving at the judgment to [follow the
    particular course of treatment] [make the particular diagnosis], the physician exercised reasonable
    care and skill within the standard of care the physician was obliged to follow." (Alteration in
    original.)
    2
    Fergen v. Sestero, No. 88819-1
    treatment to satisfy a trial judge that the instruction is appropriate. We reaffirm that
    this instruction is supported in Washington law and has not been shown to be
    incorrect or harmful.
    I.     FACTS AND PROCEDURAL HISTORY
    A.     Fergen v. Sestero
    In November 2004, Paul Fergen found a small lump on his ankle that was
    causing slight discomfort. The next week he went to see Dr. John Sestero regarding
    the lump. Sestero completed a physical examination of the ankle and described the
    lump in his chart notes as a "slight nodule" that was "smooth, soft, and nontender."
    Fergen Ex. (FE) P-1, at 12. Fergen was not experiencing any redness, swelling, or
    other abnormalities. Sestero assessed it as a ganglion cyst, 2 ordered an X ray to make
    sure there were no structural defects, referred Fergen to an orthopedic specialist, and
    instructed him to follow up with his office as necessary. The X ray confirmed an
    absence of any problems in the ankle, but the radiologist noted, "If a soft tissue cyst
    is felt an ultrasound might be ofhelp." FE P-1, at 155. Sestero informed Fergen that
    the X ray was negative but did not order an ultrasound.
    Approximately 13 months later, Fergen suffered a seizure. Thereafter, he was
    diagnosed with Ewing's sarcoma, a rare and aggressive form of metastatic cancer
    2
    Sestero's notes did not say "benign" explicitly, but a ganglion cyst is a fluid-filled cyst
    that is considered to be benign.
    3
    Fergen v. Sestero, No. 88819-1
    that originated in the lump on his ankle. After an extended course of treatment
    involving radiation and chemotherapy, Fergen died.
    Sestero's records do not contain any indication that he entertained diagnoses
    of the lump other than a ganglion cyst. During trial, he testified as to his use of
    clinical judgment during his thought process that day, including why he believed it
    to be a cyst and why he ordered certain tests. He testified that "malignancy" is "a
    consideration anytime you see a lump," although he never specifically said he
    considered it that day. 4 Fergen Verbatim Report of Proceedings at 609. Defense
    medical experts testified that the applicable standard of care did not require Sestero
    to order an ultrasound, biopsy, or other test to rule out cancer, or to make a referral
    to a specialist, or even to X ray the lump.
    Dani Fergen, individually and as personal representative of the estate of Paul
    Fergen, as well as their minor children, Brayden Fergen and Sydney Fergen,
    individually filed suit against Sestero and his employer, Spokane Internal Medicine
    PS, alleging negligence and breach of the standard of care for failing to take the steps
    necessary to ensure that the lump on Fergen's ankle was, in fact, a benign ganglion
    cyst. Fergen says Sestero simply diagnosed it as a benign cyst without considering
    other diagnoses or doing anything to confirm or disprove that the lump was benign
    and thus there is no evidence of a conscious choice. Sestero countered that his
    diagnosis of a benign cyst inherently involved the exercise of clinical judgment since
    4
    Fergen v. Sestero, No. 88819-1
    selection of one diagnosis necessarily entails the rejection of other possible, less
    likely, diagnoses.
    The trial judge gave the jury instruction on a physician's exercise of judgment.
    It read, "A physician is not liable for selecting one of two or more alternative
    diagnoses, if, in arriving at a diagnoses a physician exercised reasonable care and
    skill within the standard of care the physician was obligated to follow." Fergen
    Clerk's Papers at 3198. The jury found for the defendant, and Fergen appealed. The
    Court of Appeals affirmed. Fergen v. Sestero, 
    174 Wn. App. 393
    , 398, 
    298 P.3d 782
    (2013). We granted Fergen's petition for review. Fergen v. Sestero, 
    178 Wn.2d 1001
    ,
    308 P.3d 641
     (2013).
    B.     Appukuttan v. Overlake Medical Center
    Anil Appukuttan suffered an injury to his left lower leg during a soccer game.
    Over the next four days he visited the Overlake Medical Center emergency
    department on five occasions for persistent and worsening pain and increasing
    firmness in his left leg. He saw multiple physicians, each of whom performed
    physical examinations. None measured the pressure in his leg to rule out
    compartment syndrome, as each believed their physical examinations indicated other
    diagnoses. 3 Ultimately, Appukuttan was diagnosed with compartment syndrome on
    3
    Compartment syndrome is elevated pressure in muscle compartments that causes extreme
    pain from a lack of blood supply to the muscles.
    5
    Fergen v. Sestero, No. 88819-1
    his left calf and a fasciotomy was performed. Unfortunately, he suffered permanent
    foot drop injury as a result of the failure to diagnose and treat his compartment
    syndrome.
    Appukuttan filed this medical negligence action against Overlake Medical
    Center, Puget Sound Physicians PLLC, Alan B. Brown MD, Marcus Trione MD,
    and Tina Neiders MD, alleging negligent treatment during his hospital visits. At trial,
    Appukuttan offered testimony that the physicians violated the standard of care by
    failing to take the steps necessary to rule out or confirm compartment syndrome.
    Conversely, the physicians testified they tested for the symptoms during physical
    exams but, using their medical judgment, ruled it out as the diagnosis and followed
    other courses of treatment.
    The trial court gave the exercise of judgment instruction that read as follows:
    A physician is not liable for selecting one of two or more
    alternative courses of treatment or diagnoses, if, in arriving at the
    judgment to follow the particular course of treatment or make the
    particular diagnosis, the physician exercised reasonable care and skill
    within the standard of care the physician was obliged to follow.
    Appukuttan Clerk's Papers at 23. The jury found for the defense, and Appukuttan
    appealed to the Court of Appeals, challenging the exercise of judgment instruction.
    He then moved to transfer the appeal to this court. We granted the transfer and
    consolidated it with Fergen's case.
    6
    Fergen v. Sestero, No. 88819-1
    II.    ISSUES PRESENTED
    A.    Is the exercise of judgment jury instruction supported under
    Washington law?
    B.     Must there be substantial evidence of a conscious choice between
    alternate diagnoses before a judge may give the exercise of judgment jury instruction
    or may the judge use his or her discretion to give the instruction when he or she
    determines there is sufficient evidence to demonstrate the physician exercised
    professional judgment in making a diagnosis?
    C.     Should this court disapprove the instruction altogether in medical
    malpractice cases as incorrect and harmful?
    III.       STANDARD OF REVIEW
    Whether to give a certain jury instruction is within a trial court's discretion
    and so is reviewed for abuse of discretion. Christensen v. Munsen, 
    123 Wn.2d 234
    ,
    248, 867 P .2d 626 (1994 ); Seattle W. Indus., Inc. v. David A. Mowat Co., 
    110 Wn.2d 1
    , 9, 
    750 P.2d 245
     (1988); Thomas v. Wilfac, Inc., 
    65 Wn. App. 255
    , 264, 
    828 P.2d 597
     (1992) (citing Petersen v. State, 
    100 Wn.2d 421
    ,440, 
    671 P.2d 230
     (1983)). The
    propriety of a jury instruction is governed by the facts of the particular case. Housel
    v. James, 
    141 Wn. App. 748
    , 759, 
    172 P.3d 712
     (2007). Jury instructions are
    generally sufficient if they are supported by the evidence, allow each party to argue
    its theory of the case, and when read as a whole, properly inform the trier of fact of
    the applicable law. 
    Id. at 758
    ; Keller v. City of Spokane, 
    146 Wn.2d 237
    , 249, 
    44 P.3d 845
     (2002); Anfinson v. FedEx Ground Package Sys., Inc., 
    174 Wn.2d 851
    ,
    860, 
    281 P.3d 289
     (2012).
    7
    Fergen v. Sestero, No. 88819-1
    Legal errors in jury instructions are reviewed de novo. Anfinson, 
    174 Wn.2d at 860
    . An erroneous instruction is reversible error only if it is prejudicial to a party.
    !d. If the instruction contains a clear misstatement oflaw, prejudice is presumed and
    is grounds for reversal unless it can be shown that the error was harmless. !d. (citing
    Keller, 
    146 Wn.2d at 249-50
    ); Ezell v. Hutson, 
    105 Wn. App. 485
    , 492, 
    20 P.3d 975
    (200 1). The party challenging an instruction bears the burden of establishing
    prejudice. Griffin v. W. RS, Inc., 
    143 Wn.2d 81
    , 91, 
    18 P.3d 558
     (2001); Miller v.
    Yates, 
    67 Wn. App. 120
    , 125, 
    834 P.2d 36
     (1992).
    IV. ANALYSIS
    A.     Washington law supports the use of an exercise of judgment instruction in
    appropriate medical malpractice cases
    Petitioners first urge the court to find that this instruction is not fully accepted
    in Washington law. We reject this invitation and reaffirm that this court has
    · consistently approved of the exercise of judgment jury instruction in appropriate
    medical malpractice cases. Miller v. Kennedy, 
    85 Wn.2d 151
    , 151-52, 
    530 P.2d 334
    (1975) (Miller II) ("We can add nothing constructive to the well considered opinion
    of [the Court of Appeals] and, accordingly, approve and adopt the reasoning
    thereof." (citing Miller v. Kennedy, 
    11 Wn. App. 272
    , 280, 
    522 P.2d 852
     (1974)
    (Miller I) (instruction is an appropriate statement of the law))); Miller v. Kennedy,
    
    91 Wn.2d 155
    , 160, 
    588 P.2d 734
     (1978) (Miller III) (reminded parties that the court
    explicitly approved of the instruction in Miller II and held that the instruction was
    8
    Fergen v. Sestero, No. 88819-1
    appropriate under these facts because the physician utilized judgment in performing
    the biopsy procedure); Watson, 
    107 Wn.2d at 164-65
     (reminded parties of
    unanimous decision in Miller III and again affirmed the propriety of this instruction);
    Christensen, 
    123 Wn.2d at
    238 (affirmed Watson and held that use of the instruction
    is proper in the appropriate factual situation).
    Over the years, the wording on the instruction has changed to improve the
    instruction and address specific diction concerns. Dinner v. Thorp, 
    54 Wn.2d 90
    , 98,
    
    338 P.2d 137
     (1959) (the court eliminated "good faith" from the instruction, holding
    that a physician must exercise skill and learning, not just good faith); Watson, 
    107 Wn.2d at 164-65
     (future jury instructions should remove the word "honest" since it
    inserts an argumentative aspect not appropriate for jury instruction practice); WPI
    105.08, at 612-13 ("error of judgment" was changed to "exercise of judgment" in
    order to eliminate juror misunderstanding of the interplay between the standard of
    care and a physician error). Despite this language clarification, the use of the
    instruction itself continues to be affirmed.
    Our cases consistently state that the error in judgment instruction is a useful
    .
    tool to remind juries ofthe fallibility of medicine. Watson, 
    107 Wn.2d at 167
     ('"these
    doctrines provide useful watchwords to remind judge and jury that medicine is an
    inexact science where the desired results cannot be guaranteed, and where
    professional judgment may reasonably differ as to what constitutes proper
    9
    Fergen v. Sestero, No. 88819-1
    treatment"' (emphasis omitted) (quoting Jim M. Perdue & Read Khoury, The Law
    of Texas Medical Malpractice: Second Edition, ch. 2, "Standard of Care," 22 Hous.
    L. REv. 47, 60 (1985))). But they have also· held that this instruction is not
    appropriate in every medical malpractice action, only those based in negligence
    where the doctor faced a diagnostic or treatment choice that called on his or her
    judgment. !d. at 165 ("This 'error in judgment' instruction is, however, to be given
    with caution."). It may be given to supplement a general instruction on the proper
    standard of care only when there is evidence that the physician complied with that
    standard of care and skill required by the circumstances. Christensen, 
    123 Wn.2d at 238
    ; Miller I, 
    11 Wn. App. at 280
    ; Watson, 
    107 Wn.2d at 165
    . While "[t]he exercise
    of professional judgment is an inherent part of the care and skill involved in the
    practice of medicine," this instruction is limited to situations where the doctor uses
    judgment to choose between alternative treatments or diagnoses. Miller III, 
    91 Wn.2d at 160
    ; Watson, 
    107 Wn.2d at 165
    . This instruction is well integrated into the
    system of jury instructions in Washington.
    Further, this instruction is not preempted by chapter 7.70 RCW. This court
    has previously rejected this argument in both Watson and Gerard v. Sacred Heart
    Medical Center, 
    86 Wn. App. 387
    , 
    937 P.2d 1104
     (1997). Watson, 
    107 Wn.2d at 166
     (court held that the statutory standard of care change from an average
    practitioner to a reasonably prudent practitioner did not affect the use of
    10
    Fergen v. Sestero, No. 88819-1
    supplemental jury instructions); Gerard, 86 Wn. App. at 3 88 (court affirmed the use
    of the exercise of judgment jury instruction despite the argument it was contrary to
    the objective standard of care established in RCW 7.70.040). The exercise of
    judgment instruction is a supplemental instruction that cannot be given separate from
    the basic standard of care instruction. See Christensen, 
    123 Wn.2d at
    249 (citing
    Watson, 
    107 Wn.2d at 166
    ). It is used to clarify the general standard of care; it does
    not alter it or add any additional elements for a plaintiff to prove. We follow this
    clear precedent and again approve of the use of the exercise of judgment jury
    instruction here.
    B.     Case law supports a broad interpretation of when a physician is making a
    choice between reasonable alternative treatments or diagnoses
    Petitioners next argue that in order for this instruction to be g1ven, the
    physician must present clear evidence of a conscious choice between alternate
    diagnoses or treatments. In Washington, an exercise of judgment instruction is
    justified when (1) there is evidence that the physician exercised reasonable care and
    skill consistent with the applicable standard of care in formulating his or her
    judgment and (2) there is evidence that the physician made a choice among multiple
    alternative diagnoses (or courses of treatment). Watson, 
    107 Wn.2d at 165
    ;
    Christensen, 
    123 Wn.2d at 249
    . Neither ofthese consolidated cases present an issue
    regarding the first requirement because that was the subject of expert testimony at
    11
    Fergen v. Sestero, No. 88819-1
    each trial and there was substantial evidence to support the defendant-physician's
    assertions of competency.
    The issue for this court involves the second requirement-what evidence is
    sufficient to prove that the physician made a choice in the treatment or diagnosis to
    justify this instruction? Our cases have found the evidence to be sufficient to give
    the instruction when the physician used judgment in making a diagnostic choice or
    choosing a treatment plan. In the second appeal of Miller, the court held that "the
    exercise of professional judgment is an inherent part of the care and skill involved
    in the practice of medicine." Miller III, 
    91 Wn.2d at 160
    . It held that "performing
    the delicate surgery of a kidney biopsy" used the physician's judgment, so the
    situation was one entitled to the instruction. 
    Id.
    In Christensen, a woman with eye disease became legally blind under the care
    of an ophthalmologist and sued, claiming he breached the standard of care. 
    123 Wn.2d at 237-38
    . In analyzing the error of judgment instruction, the court noted that
    there were three defense experts who testified that the ophthalmologist acted within
    the standard of care, but that they each would have treated the woman's eye disease
    differently. !d. at 249. The court considered this to be sufficient evidence that the
    defendant had a choice of therapeutic techniques within the proper standard of care
    and used his judgment to choose which course of treatment to take. The court held
    that the instruction was appropriate. 
    Id.
    12
    Fergen v. Sestero, No. 88819-1
    Turning to some of the decisions by the appellate courts, we consistently see
    a low bar that must be satisfied for the court to hold that a physician made a choice
    between treatments or diagnoses. The facts of Vasquez v. Markin, 
    46 Wn. App. 480
    ,
    481-82, 489, 731 P .2d 510 (1986), recite a course of treatment by a gynecologist
    including the choice between interrupting one surgery to perform another or asking
    another physician to perform the other surgery. The court concluded the physician
    clearly exercised judgment. 
    Id. at 489
     ("Here, Dr. Markin presented evidence of
    reasonable care, and was confronted with the situation where he had to make a
    choice."). In Thomas, 
    65 Wn. App. at 258
    , a woman working with pesticides
    developed flu-like symptoms and went to the emergency room where the physician
    "ruled out pesticide poisoning and diagnosed asthma." Without further discussion of
    the physician's judgment, the court held this was sufficient to demonstrate the
    instruction was warranted under these facts. Id. at 264. In Gerard, 86 Wn. App. at
    389, the court held that a physician's decision whether to use restraints on a patient
    is a choice of treatment supporting the instruction. In Ezell, the judgment exercised
    by the physician was deciding to treat a postoperation infection with a particular type
    of antibiotic when a different antibiotic was needed to clear up the infection. 105
    Wn. App. at 488-89. The court approved of the use of this instruction under these
    facts. !d. In Housel, a woman developed an abscess months after a hernia repair and
    she sued the surgeon who performed the repair. 141 Wn. App. at 752-53. Despite a
    13
    Fergen v. Sestero, No. 88819-1
    reiteration of the cautions of Watson, the court held the instruction was proper,
    saying, "[T]he record discloses that Dr. James was presented with at least three
    treatment choices: additional testing, watchful waiting, or surgical repair of the
    hernia." Id. at 760.
    This albeit scattered case law nonetheless demonstrates the court interpreting
    very broadly the requirement that a "doctor is confronted with a choice among
    competing therapeutic techniques or among medical diagnoses."                        Watson, 
    107 Wn.2d at 165
    . Even read broadly, this instruction is not proper in every medical
    malpractice case, even when appropriate it is not always required. 4 It should only be
    given when the doctor chooses between reasonable, medically acceptable options; it
    should not be given simply if a physician is practicing medicine at the time. It is not
    appropriate in other malpractice actions such as one focused on the inadequate skills
    of the physician. We require the physician to make a choice for this instruction, but
    we interpret that phrase to encompass any "exercise of professional judgment" in
    treatment or diagnosis. Miller III, 
    91 Wn.2d at 160
    .
    Sestero made many choices that necessarily involved his judgment. He had a
    choice between referring Fergen to a specialist or not. He had a choice between
    4
    The error of judgment instruction is not required for the defense to present its theory in
    every malpractice case. Seattle W Indus., 
    110 Wn.2d at 9
    ; see also Watson, 
    107 Wn.2d at 169
    .
    Jury instructions are reviewed as a whole to determine if they permit a party to argue his or her
    theory of the case. Anfinson, 
    174 Wn.2d at 860
    .
    14
    Fergen v. Sestero, No. 88819-1
    ordering an X ray or not. He had a choice between ordering follow up testing or not.
    Expert testimony showed that all of those choices were within the standard of care
    based on a one-week old, small, soft lump on an ankle. Sestero testified that the lump
    being cancerous was so exceedingly rare that it was far down the list of possible
    ailments and he is not sure if he considered it as an actual possibility. This indicates
    that he considered various diagnoses and made a choice between them using his
    medical judgment-he just chose wrong. This is in line with all the guidelines from
    Washington case law regarding a choice in treatment.
    Similarly, the physicians in Appukuttan made diagnostic choices based on
    their medical judgment. They testified regarding the details of their physical
    examinations. They looked for the warning signs and symptoms of compartment
    syndrome and testified that in their judgment, they did not find them. They made a
    choice in whether to perform the additional pressure test but determined it was
    unnecessary because their physical examination did not indicate that compartment
    syndrome was the diagnosis, and instead another problem was likely the cause of his
    symptoms.
    Misdiagnosis and the inexactness of medicine is not the basis for liability
    without a deviation from the proper standard of care. Both of these cases present a
    proper situation for the instruction. The juries needed to focus on whether the
    physicians failed to exercise the requisite degree of skill, care, and learning in
    15
    Fergen v. Sestero, No. 88819-1
    arriving at the diagnosis, and this instruction aided in that determination. In each of
    these cases the instruction was supported by sufficient evidence and so the trial
    judges did not abuse their discretion by deciding to give the instruction to the juries.
    C.     This court should not overrule precedent and eliminate this instruction
    Finally, Fergen and Appukuttan ask us to overrule existing precedent and
    abandon the use of this jury instruction altogether. To abandon established
    precedent, there must be '"a clear showing that an established rule is incorrect and
    harmful.'" State v. Devin, 
    158 Wn.2d 157
    , 168, 
    142 P.3d 599
     (2006) (internal
    quotation marks omitted) (quoting Riehl v. Foodmaker, Inc., 
    152 Wn.2d 138
    , 147,
    
    94 P.3d 930
     (2004)). Fergen and Appukuttan rely on multiple policy arguments to
    demonstrate that the instruction should be abandoned.
    They argue this supplemental instruction is unnecessary since the jury is
    already given an instruction on the basic standard of care and giving an additional
    instruction creates a risk of confusion regarding the standard of care to apply in the
    case. They claim that leaving it up to the discretion of a judge whether to give the
    instruction results in "unpredictability, inconsistency, and one-sidedness." Reply Br.
    of Appellant (Appukuttan) at 8. And finally, they argue this instruction results in an
    unfair advantage to defendants in medical malpractice cases. Fergen and Appukuttan
    argue that giving this instruction is tantamount to a directed verdict because every
    medical case necessarily involves judgment, as is shown by the fact that in reported
    16
    Fergen v. Sestero, No. 88819-1
    decisions when the instruction is given, a defense verdict results. 
    Id.
     However, none
    of these arguments persuade us that the current system and precedent is sufficiently
    incorrect and harmful to justify eliminating this instruction.
    Similarly, the dissent asserts that the instruction is incorrect and harmful
    because it supplements neutral instructions with an instruction that contains one
    side's theory of the case. Dissent at 7-8. Yet, instructions that inform the jury of a
    party's theory of the case are not necessarily harmful or incorrect. If a party's theory
    of the case is supported by substantial evidence, he or she is entitled to have the court
    instruct the jury on it. Barrett v. Lucky Seven Saloon, Inc., 
    152 Wn.2d 259
    , 266-67,
    
    96 P.3d 386
     (2004).
    The dissent contends that the instruction "misdirect[s] a jury's consideration
    of a plaintiffs claim" and confuses the jury. Dissent at 9. According to the dissent,
    the instruction focuses the jury on the physician's choice rather than the plaintiffs
    claim that the physician failed to take the proper steps before making the choice. Id.
    at 8-9. In addition, the dissent asserts that the instruction could make the jury believe
    it does not need to resolve factual issues regarding the standard of care. !d. at 10.
    We have often examined this system and repeatedly affirmed the utility of
    having additional instructions, including the exercise of judgment instruction,
    supplement the basic standard of care instruction in medical malpractice cases.
    Properly given and worded, this instruction does not misdirect the jury and is not
    17
    Fergen v. Sestero, No. 88819-1
    confusing; it helps juries understand the complexity of the legal standard they are
    being asked to apply. See Christensen, 
    123 Wn.2d at 247-49
    ; Watson, 
    107 Wn.2d at 167
    ; Miller III, 
    91 Wn.2d at 161
    ; Gerard, 86 Wn. App. at 388-89; Thomas, 
    65 Wn. App. at 263-64
    . In contrast to the dissent's assertion, the language of the instruction
    alerts jurors that they must resolve factual issues regarding the standard of care. The
    instruction requires the jury to find that in arriving at the diagnoses or treatment the
    physician exercised reasonable care and skill within the requisite standard of care.
    See Watson, 
    107 Wn.2d at 165
    .
    Each case before the court presents different facts, and it is impossible to have
    one formula fit all unique situations, particularly in medical malpractice cases where
    it is important to remember that the inexactness of medicine is not a basis for legal
    liability. This instruction is one of the tools in a judge's toolbox for him or her to use
    to ensure this critical element is understood. Miller I, 
    11 Wn. App. at 279-80
    ; Miller
    III, 
    91 Wn.2d at 159
    ; Watson, 
    107 Wn.2d at 161-67
    ; Christensen, 123 Wn.2d at247-
    50; Vasquez, 46 Wn. App. at 487-90. A certain measure of uncertainty is inherent in
    this system, but that is the price paid to have an individualized balance of instructions
    for each set of facts.
    Elaborating instructions are commonly used in negligence law and are helpful
    for lay jurors to understand the complexities of a malpractice case. The exercise of
    judgment instruction reminds the jury that medicine is an inexact science where
    18
    Fergen v. Sestero, No. 88819-1
    professional judgment may reasonably differ as to what constitutes proper treatment.
    Watson, 
    107 Wn.2d at 167
    ; Gerard, 86 Wn. App. at 388-89. It will not be applied in
    every case but should remain a tool for a judge to use when he or she decides it is
    appropriate. Some of the foregoing policy concerns might have some merit, but our
    case law has addressed and rejected the same issues and arguments; it has repeatedly
    affirmed the use of these supplemental instructions. The court will not overrule
    precedent unless it determines it to be incorrect and harmful, which petitioners have
    not proved.
    V.   CONCLUSION
    We affirm the Court of Appeals in Fergen and the trial court in Appukuttan.
    We hold the exercise of judgment instruction is a proper statement of Washington
    law. We hold that it is not limited to circumstances in which a physician proves he
    or she consciously selected between competing diagnoses. The instruction is
    discretionary for the trial judge when he or she determines sufficient evidence has
    been presented that a physician exercised judgment in making a diagnostic or
    treatment choice. Neither trial judge abused their discretion in these cases by giving
    the instruction. We affirm both cases.
    19
    Fergen v. Sestero, No. 88819-1
    WE CONCUR:
    20
    Fergen, et al. v. Sestero, MD., et al.
    No. 88819-1
    STEPHENS, J. (dissenting)-A claim of medical malpractice sounds in
    negligence. The plaintiff must prove the health care provider failed to exercise the
    "care, skill, and learning expected of a reasonably prudent health care provider."
    RCW 7.70.040(1). Instructing the jury that a physician is not liable for exercising
    judgment in choosing among alternative courses of treatment or diagnoses adds
    nothing to the explication of this burden. As the majority notes, "'The exercise of
    professional judgment is an inherent part of the care and skill involved in the
    practice of medicine."' Majority at 12 (quoting Miller v. Kennedy, 
    91 Wn.2d 155
    ,
    160, 
    588 P.2d 734
     (1978) (Miller III)). The instruction thus tells the jury no more
    than to excuse from liability a doctor who exercises reasonable care.
    Courts have long recognized that giving a supplemental instruction on the
    exercise of judgment is unnecessary. And, the instruction has been criticized as
    slanted, argumentative and confusing to jurors. The majority acknowledges courts
    are not bound to give the instruction, as its absence does not preclude the defense
    from arguing its theory of the case. See majority at 14 & n.4. But, the majority
    Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)
    offers no guidance for trial judges to decide when to g1ve the instruction,
    suggesting that "even when appropriate it is not always required." Id. at 14. This
    case presents our first clear chance to end the confusion and unfairness engendered
    by the exercise of judgment instruction. We should take this opportunity to join a
    growing number of courts across the nation and jettison this problematic
    instruction. I respectfully dissent.
    ANALYSIS
    The majority's approval of the exercise of judgment instructions given in
    these cases rests on the belief that it "is supported in Washington law and has not
    been shown to be incorrect or harmful." Majority at 3. I disagree with both of
    these propositions. This type of instruction has long been criticized, including by
    this court, and efforts to temper its language have not remedied its core
    deficiencies. I will first address the history of the exercise of judgment instruction,
    which demonstrates that it is argumentative and confusing, and then turn to why
    this court should exercise its authority to reject it.
    The "Exercise of Judgment" Instruction Is Rooted in the Discredited "Error in
    Judgment" Instruction and Has Not Been Broadly Endorsed in Washington
    The exercise of judgment instn1ction is a relic of a discredited theory of
    liability, one that sought to hold a doctor to a lesser duty than any other person. It
    is a refinement of the "error in judgment" instruction, which required a jury to
    consider whether a health care provider exercised judgment in "good faith."
    Dinner v. Thorpe, 
    54 Wn.2d 90
    , 97-98, 
    338 P.2d 137
     (1959).               In our earliest
    -2-
    Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)
    review of the error in judgment instruction, we rejected the good faith language,
    finding it misleading in suggesting good faith could absolve a physician of
    liability, irrespective of negligence. 
    Id. at 98
    .
    We considered a different iteration of the error in judgment instruction,
    minus the good faith language, in Samuelson v. Freeman, 
    75 Wn.2d 894
    , 
    454 P.2d 406
     (1969). The instruction advised the jury that "if, having properly informed
    himself [of a patient's condition], [the physician] reache[d] a wrong conclusion, he
    is not liable for errors in judgment." 
    Id. at 896
    . We did not rule on whether the
    instruction standing alone was an incorrect statement of law; instead, we held that
    when given alongside several other instructions "on the subject of the standards of
    care and skill required of medical practitioners," 
    id. at 896
    , taken as a whole the
    instructions were "argumentative," "overemphasized the physician's immunities,"
    and "markedly diminished his responsibilities." 
    Id. at 897
    . Ordering a new trial,
    we cautioned against giving supplemental instructions that so emphasized one
    party's position over the other's as to be "palpably unfair." !d. We noted this
    problem was unlikely to recur on remand in light of newly published pattern
    instructions that defined the standard of care "with fairness and reasonable
    brevity." 
    Id.
     Significantly, the pattern instructions at the time did not include an
    error of judgment instruction, which was added in 1990.                  6 WASHINGTON
    PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL: 1994 POCKET PART
    105.08 cmt. at 106-08 (3d ed. 1989) (WPI) (explaining that while the main volume
    -3-
    Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)
    acknowledges the existence of the instruction but offers no recommended
    language, the committee in the 1990 pocket part first offered pattern language). 1
    We returned to the error in judgment instruction in Miller III, 
    91 Wn.2d 155
    .2
    There we considered language instructing the jury that "a physician is not liable for
    an honest error of judgment where he or she exercised the requisite degree of care
    and skill in arriving at the judgment." 
    Id. at 160
    . We observed that "[c]ertainly
    Dr. Kennedy was called upon to exercise his professional judgment in performing
    the delicate surgery of a kidney biopsy" and held the trial court did not err in
    giving the instruction. !d. We later disapproved of the "honest error" language to
    the extent that it "'muddle[d] the jury's understanding of the burden imposed upon
    a plaintiff in a malpractice action"' by suggesting the plaintiff must prove a
    ""'dishonest mistake""' or ""'bad faith error.""' Watson v. Hockett, 
    107 Wn.2d 158
    , 165, 
    727 P.2d 669
     (1986) (quoting Teh Len Chu v. Fairfax Emergency Med.
    Assocs., 
    223 Va. 383
    , 386, 
    290 S.E.2d 820
     (1982)).                 Absent the offending
    language, we noted, such an instruction could be given in a proper case, but it must
    1 Today the "error of judgment" instruction appears as WPI 105.08, see
    6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL (6th ed.
    2012). The pattern instructions do not carry the force or weight of decisional law and
    indeed are frequently amended or revised in response to decisiona11aw or statute. See 
    id.
    cmt. at 612 (explaining that the error of judgment instruction was reformulated in
    response to decisiona11aw); see also State v. Austin, 
    59 Wn. App. 186
    , 194 n.4, 
    796 P.2d 746
     (1990) (encouraging the committee on jury instructions to adopt language reflecting
    a chan~e in a governing statute).
    Miller I is the Court of Appeals decision Miller v. Kennedy, 
    11 Wn. App. 272
    ,
    
    522 P.2d 852
     (1974), reversing the trial court's decision. Miller II is our per curiam
    affirmation of the Court of Appeals decision, Miller v. Kennedy, 
    85 Wn.2d 151
    , 
    530 P.3d 334
     (1975). Miller III is our review of the trial court's decision following the remand
    from the Court of Appeals.
    -4-
    Fergen, et al. v. Sestero, M.D., et al., 88819-1 (Stephens, J. Dissent)
    be given with caution. 
    Id.
     In particular, it should not be given unless the evidence
    shows the physician exercised reasonable care and was in fact "confronted with a
    choice among competing therapeutic techniques or among medical diagnoses." 
    Id.
    In Christensen v. Munsen, 
    123 Wn.2d 234
    , 249, 
    867 P.2d 626
     (1994), we
    rejected a claim that the error of judgment instruction constituted a comment on the
    evidence but again reiterated that the instruction applies only in the limited
    circumstance when a health care provider chooses among acceptable alternatives.
    We also noted that it "supplements the standard of care and can only be given with
    a proper standard of care instruction." 
    Id.
    As this brief overview makes clear, our precedent can hardly be described as
    a ringing endorsement of the error or exercise of judgment instruction. In just a
    handful of cases, we have examined the most argumentative aspects of earlier
    versions of the instruction, with the result that the instruction has been tweaked,
    whittled, revised, and prodded into its current form. We have not examined any
    version of this instruction in 20 years and have never directly considered the
    "exercise of judgment" instruction at issue in these cases. While we noted the
    seeming acceptance of the "error in judgment principle" in 1986, Watson, 
    107 Wn.2d at 165
    , we have not had an opportunity to consider cases since then that
    show a trend toward rejecting it. See, e.g., Pleasants v. Alliance Corp., 
    209 W.Va. 39
    , 
    543 S.E.2d 320
    , 331 (2000) (reversing West Virginia precedent and collecting
    -5-
    Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)
    cases from other states to show that "courts increasingly are veering away from the
    use of these instructions based on the potential for jury confusion"). 3
    I share the concern expressed by our Court of Appeals, which in 2001
    commented:
    If the Supreme Court chooses to revisit the line of cases that bind us, it
    seems fair to add that we see no independent reason for giving a separate
    "error of judgment" instruction. It appears to us that the standard
    instructions are adequate to allow argument on the topic without undue
    emphasis or risk of confusion. In this sense, the "error of judgment"
    instruction adds little while risking unnecessary confusion.
    Ezell v. Hutson, 
    105 Wn. App. 485
    , 491, 
    20 P.3d 975
     (2001); see also Fergen v.
    Sestero, 
    174 Wn. App. 393
    , 398, 
    298 P.3d 782
     (2013) (deferring to this court "the
    task of redefining when the instruction should apply, if at all"). For the reasons
    more fully explained below, we should take this opportunity to disapprove of
    gtvmg a supplemental exercise of judgment instruction in medical negligence
    cases.
    The Exercise ofJudgment Instruction Is Confusing, Unfair, and Inconsistent with
    the Modern Practice of Giving Only Basic, Neutral Instructions
    Jurors have a difficult job. We expect them to understand and apply legal
    principles served up to them "in a brief formal incantation." Joseph H. King, Jr.,
    Reconciling The Exercise of Judgment and the Objective Standard of Care in
    Medical Malpractice, 52       OKLA.   L. REv. 49, 64 (1999). "The plight of jurors is
    3
    The instruction at issue in Pleasants included the term "honest error," and many
    of the cases cited in the opinion rejected instructions with the type of "good faith"
    language this court has criticized. See 543 S.E.2d at 329-31 & n.27.
    -6-
    Fergen, eta!. v. Sestero, MD., eta!., 88819-1 (Stephens, J. Dissent)
    even worse than one writer's analogy to a law school class in which the entire
    course consisted of a verbatim reading of the rules followed by an examination.
    As another writer states, '[i]t is all too easy for those of us who are lawyers or
    judges to forget what the world looked like before we entered law school."' !d. at
    64-65 (alteration in original) (footnotes omitted).       Appreciating the difficulties
    jurors face, the art of instructing the jury should focus on identifying a basic,
    neutral set of instructions.
    Supplemental instructions generally cut against this goal. In many areas of
    the law this court has rejected instructions-some quoting verbatim from court
    opinions-that emphasized one party's point of view. See, e.g., Turner v. City of
    Tacoma, 
    72 Wn.2d 1029
    , 1034, 
    435 P.2d 927
     (1967) (describing parties'
    competing supplemental instructions as "slanted" and stating "[t]hat we may have
    used certain language in an opinion does not mean that it can be properly
    incorporated into a jury instruction"). We have long ascribed to the philosophy
    that when it comes to instructing a jury, less is more. Laudermilk v. Carpenter, 
    78 Wn.2d 92
    , 100,
    457 P.2d 1004
     (1969). As the court inLaudermilkexplained:
    It has, for some years, been the policy of our Washington system of
    jurisprudence, in regard to the instruction of juries, to avoid instructions
    which emphasize certain aspects of the case and which might subject the
    trial judge to the charge of commenting on the evidence, and also, to avoid
    slanted instructions, formula instructions, or any instruction other than
    those which enunciate the basic and essential elements of the legal rules
    necessary for a jury to reach a verdict. Under this theory, counsel has been
    free, and, indeed, has the responsibility, to argue to the jury, the
    refinements of these rules within the factual framework of his case.
    Detailed instructions, such as those proposed here, though once common,
    -7-
    Fergen, et al. v. Sestero, M.D., et al., 88819-1 (Stephens, J. Dissent)
    are now deemed to be instructions which "point up," "underline," or
    "buttress" portions of counsel's argument.
    
    Id. at 100-01
    .
    In every case to have considered an error of judgment instruction, this court
    has recognized this type of instruction serves to emphasize the defendant's theory
    of the case. It has been variously described as unnecessary, misleading, confusing,
    and argumentative.       At best, the instruction is unhelpful, simply restating the
    standard of care instruction, but from the defendant's perspective. 4 At worst, it
    misdirects a jury away from the question of reasonable care to focus attention on
    whether the health care provider made a choice. It tempts the jury into viewing
    professional or clinical judgment as a free-standing consideration in the question
    before it, akin to an affirmative defense. 5         And insofar as "[t]he exercise of
    professional judgment is an inherent part of the care and skill involved in the
    practice of medicine," Miller, 
    91 Wn.2d at 160
    , the instruction may lead juries to
    conclude a defensible choice is synonymous with a nonnegligent choice.
    4
    We have recognized that the instruction is not necessary for a defendant in a civil
    malpractice case to argue a defense theory; it is at most a supplementary instruction, and
    a trial judge does not commit error by refusing to give it. See Seattle W Indus., Inc. v.
    David A. Mowat Co., 
    110 Wn.2d 1
    , 9, 
    750 P.2d 245
     (1988); 6 WASHINGTON PRACTICE:
    WASHINGTON PATTERN JURY INSTRUCTIONS: CNIL 105.07 cmt. at 611 (6th ed. 2012).
    The majority acknowledges this, majority at 14 n.4, but at the same time suggests a
    defendant may be entitled to the exercise of judgment instruction, 
    id. at 17
    . The problem
    is, the majority never tells us when this will be the case.
    5
    Underscoring this proposition is amici Washington State Medical Association
    (WSMA) and Washington State Hospital Association's (WSHA) insistence that the
    exercise of judgment is a "defense." Br. of Amici Curiae WSMA & WSHA at 14. An
    affirmative defense admits the elements of the claim but offers an excuse or justification
    for the act.
    -8-
    Fergen, eta!. v. Sestero, M.D., eta!., 88819-1 (Stephens, J. Dissent)
    The cases before us demonstrate how this instruction can misdirect a jury's
    consideration of a plaintiffs claim. The claims in these cases were not premised
    on negligence in choosing diagnosis (or treatment) A over diagnosis (or treatment)
    B. The plaintiffs claimed the physicians fell below a reasonable standard of care in
    failing to do steps 1, 2, 3, 4, and 5 before choosing A over B. But the exercise of
    judgment instruction bolstered Dr. Sestero 's argument that he was not negligent in
    choosing to disregard a diagnosis of cancer and Appukuttan's medical team's
    argument that it was not negligent in choosing to rule out compartment syndrome.
    For example, in closing argument, Dr. Sestero's counsel told the jury, "I want to
    talk to you a little bit about standard of care and judgment. ... [Plaintiffs experts]
    are willing to come and criticize Dr. Sestero for not considering this nub in the
    ankle to be a cancer."      12 Verbatim Report of Proceedings (VRP) (Fergen) at
    2197-98. Counsel discussed the exercise of judgment instruction:
    And that gets to this issue of judgment, the judgment instruction, I
    believe its Instruction Number 18 that Judge Sypolt has given you. The law
    is that a physician is not liable for an error in judgment in making a
    diagnosis if, in arriving at that judgment, he followed an appropriate
    standard of care. So in the judgments that Dr. Sestero did, you have to
    reflect on this: Did he blow the patient off according to the
    contemporaneous record? Not at all.
    !d. at 2203.
    On rebuttal, Fergen's counsel attempted to push back against this focus on a
    choice between diagnoses:
    I'm not asking you to hold Dr. Sestero accountable for discovering Ewing
    sarcoma. That's never been a part of this case, and they have tried very
    -9-
    Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)
    hard to leave you with that impression. We're not saying that. We're just
    saying he should have done more than he did.
    Id. at 2217. In the end, the jury was left to sort out the parties' disagreement by
    reading the instructions, which included a particular instruction focusing on the
    physician's selection of "one of two or more alternative diagnoses."                  Clerk's
    Papers at 3198 (Instruction 18).
    Similarly, in Appukuttan' s case, defense counsel emphasized the exercise of
    judgment instruction, arguing:
    This instruction number 10, I want you to review that too as well
    because there are two different diagnoses. There was all over the records
    you'll see the diagnosis of hematoma; it's been talked about at length. And
    what this says, if there are two reasonable ways to pursue something, the
    judge has instructed you, it's in the instructions, a physician is not liable for
    pursuing one of those or a treatment option, even if you believe in hindsight
    that the patient had compartment syndrome at the time, as long as it is
    reasonable, then he is not liable.
    VRP (Appukuttan) (Dec. 3, 2012) at 72. To be clear, I do not fault counsel for
    making arguments that focused on the defense theory of the case. It was their
    absolute right, indeed obligation, to do so. But the slanted focus of the exercise of
    judgment instruction gave the defense theory an unfair advantage, essentially
    stamping it with the judge's approval.
    In addition to being slanted and argumentative, the exercise of judgment
    instruction potentially confuses the jury with respect to the factual issues it must
    resolve. Based on the instruction, a jury could believe it does not need to resolve
    disputes over the standard of care so long as the evidence shows the health care
    providers chose to follow one standard over another. After all, there is no division
    -10- .
    Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)
    in the presentation of the evidence or in the closing arguments between disputes
    over the standard of care and questions of professional judgment. So, if the experts
    disagree over what the health care provider should have done, and the evidence
    shows the provider chose option A over option B, the instruction suggests there is
    no liability.
    Of course, we can never know exactly how the exercise of judgment
    instruction affected deliberations in a particular case. The jury's thought process
    inheres in its verdict. But, it is important to recognize the risk of confusion this
    instruction presents in any medical negligence case, including these. The majority
    cannot elucidate a workable rule for a trial judge to decide when the risk of giving
    this instruction is too great. The majority acknowledges that we have said the
    instruction must be given "'with caution."' Majority at 10 (quoting Watson, 
    107 Wn.2d at 165
    ). It explains that this court has attempted to limit the introduction of
    the instruction to "situations where the doctor uses judgment to choose between
    alternative treatments or diagnoses." 
    Id.
     (citing Miller III, 
    91 Wn.2d at 160
    ). But,
    at the same time the majority characterizes this requirement as one that must be
    broadly construed, suggesting it is "a low bar that must be satisfied for the court to
    hold that a physician made a choice between treatments or diagnoses." !d. at 12-
    13. Nothing more must be shown than that the health care provider was engaged
    in an "'exercise of professional judgment' in treatment or diagnosis." !d. at 14
    (quoting Miller III, 
    91 Wn.2d at 160
    ). The Miller III court acknowledged that the
    exercise of professional judgment is simply a physician practicing medicine. 91
    -11-
    Fergen, eta!. v. Sestero, M.D., eta!., 88819-1 (Stephens, J. Dissent)
    Wn.2d at 160 ("The exercise of professional judgment is an inherent part of the
    care and skill involved in the practice of medicine."). If there is a backstop in the
    majority opinion to giving this instruction, I cannot divine it. 6 In fairness to the
    majority, its inability to articulate a workable rule is merely symptomatic of the
    basic infirmity of the exercise of judgment instruction. Perhaps the only saving
    grace for trial judges is the standard of review. While we have not found an abuse
    of discretion where a trial court gave the instruction, neither have we found
    reversible error where the trial court refused to do so. See Watson, 
    107 Wn.2d at 167
    .    I believe the only way to achieve consistency is to disapprove of this
    instruction entirely.
    The Court Should Categorically Disapprove of the
    Exercise ofJudgment Instruction
    Preliminarily, I am not convinced that our authority to reject the giving of an
    error or exercise of judgment instruction depends on meeting the "incorrect and
    harmful" test. In re Right to Waters of Stranger Creek, 
    77 Wn.2d 649
    , 653, 
    466 P.2d 508
     (1970) (announcing the test for overruling stare decisis). Standards for
    instructing juries evolve over time, and our precedent cannot be characterized as
    broadly endorsing this instruction. No one contends that the exercise of judgment
    instruction is a misstatement of law or that the law of medical negligence itself
    6
    The majority suggests the instruction would be inappropriate in a challenge that
    focuses on the inadequate skills of the physician. Majority at 14. If this narrow subset of
    cases is the only category in which the instruction would not apply, I still cannot agree
    that the instruction can be given in a manner faithful to our directive that it be applied
    with caution.
    -12-
    Fergen, et al. v. Sestero, M.D., et al., 88819-1 (Stephens, J. Dissent)
    must be changed. Rather, we are asked to consider the risks attendant to this
    instruction and to provide guidance to lower courts on how to fairly instruct juries
    in medical negligence cases.
    Even if we must overrule precedent in order to reject this instruction, it is not
    difficult to meet the incorrect and harmful test here. This court in Stranger Creek
    emphasized that precedent "is not an absolute impediment to change" and that
    "stability should not be confused with perpetuity."              
    77 Wn.2d at 653
    .         As
    explained, the exercise of judgment instruction is slanted, argumentative, and
    confusing to juries. Our precedent has consisted mainly of partial rejections of the
    worst language in earlier versions of the instruction. Since our last consideration
    of the instruction 20 years ago, several courts have reconsidered its value and have
    veered away from its use. Additionally, our legislature has framed the elements of
    medical negligence in RCW 7. 70.030 and .040, providing even stronger reason for
    following the modem practice of eschewing supplemental instructions in favor of
    simply outlining the statutory elements.7           To the extent that prior cases have
    refused to find error in either the giving or the refusal to give an exercise of
    judgment instruction, the existing precedent merely perpetuates an inconsistent
    application of the law at the trial court level and provides absolutely no guidance.
    7
    I do not agree with Appukuttan's suggestion that RCW 7.70.030 and .040
    "preempt" WPI 105.08 or that the instruction is inconsistent with the statute. See Br. of
    Appellant (Appukuttan) at 11-18. My point is simply that the codification of the
    elements of a medical negligence claim reinforces the value of limiting jury instructions
    to those that provide the legal framework for the jury's deliberations. See Laudermilk, 
    78 Wn.2d at 100
     (cautioning against giving instructions "other than those which enunciate
    the basic and essential elements of the legal rules necessary for a jury to reach a verdict").
    -13-
    Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)
    Our precedent is harmful for many of the same reasons, but also for the fact
    that is has resulted in the creation of a pattern instruction that we should expect
    will be requested in most medical negligence cases.             Our admonition that the
    instruction should be given with caution has proved to be futile and will be even
    less effective in light of the "low bar" set by the majority. Majority at 12-13. Trial
    judges will rightly complain that while we continue to wring our hands about the
    risks of giving an exercise of judgment instruction, we offer little help in deciding
    when it should and should not be given.
    Finally, I believe it shows a harmful effect of this type of instruction that it
    serves to bolster one party's theory of the case. We are told that the instruction is
    almost always associated with a defense verdict.            See Reply Br. of Appellant
    (Appukuttan) at 10 (arguing the instruction "is tantamount to directing a defense
    verdict"). While we do not have the benefit of a scientific study measuring the
    effects of the error of judgment instruction on deliberating juries, we should
    consider the concerns raised in the reported cases in weighing the costs and
    benefits of continuing to allow this instruction. I believe the time has come to
    recognize that the risks of misdirecting or confusing the jury outweigh any possible
    benefit to giving this slanted, argumentative instruction.           I would be equally
    dubious of any instruction that overemphasized the plaintiff's point of view, by
    '"point[ing] up,'      'underlin[ing],' or 'buttress[ing]' portions of counsel's
    argument." Laudermilk, 
    78 Wn.2d at 101
    . We should send the clear message to
    trial courts that jury instructions should enunciate the basic legal elements of
    -14-
    Fergen, et al. v. Sestero, M.D., et al., 88819-1 (Stephens, J. Dissent)
    medical malpractice and that WPI 105.08 is not an appropriate "supplement" to the
    instructions.
    The Erroneous Instruction in These Cases Requires Reversal
    The remaining question is whether the instructions given in these cases
    created a sufficient risk of prejudice as to require reversal. Fergen and Appukuttan
    argue for reversal on the ground that the instructions were legally erroneous and
    unsupported by the evidence.           Pet'rs' Suppl. Br. (Fergen) at 19-20; Br. of
    Appellant (Appukuttan) at 24. Respondents' counsel in Fergen notes that the
    prejudice recognized in prior versions of the instruction that used terms such as
    "honest error" is not present in the current language. Br. ofResp'ts (Fergen) at 42-
    43.
    Courts that have disapproved of use of an exercise of judgment instruction
    have separately examined whether giving the instruction in the particular case
    resulted in reversible error. See Pleasants, 543 S.E.2d at 330-32 & n.27 (finding
    error harmless in light of other instructions correctly stating the law; collecting
    similar cases); Yates v. Univ. of W. Va. Bd. of Trs., 
    209 W. Va. 487
    , 
    549 S.E.2d 681
    , 691-92 & n.19 (2001) (finding reversible error based on reasonable
    probability the instruction influenced jury's verdict; collecting similar cases). The
    question is not particularly well developed in this case, as the briefing focuses on
    the merits of the exercise of judgment instruction itself. Certainly, the erroneous
    instruction did not stand in isolation; it supplemented proper standard of care
    -15-
    Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)
    instructions.   Thus, if the test is simply whether the instructions as a whole
    properly advised the jury of the relevant law, they did.
    On the other hand, as in the Yates case, there is a reasonable probability that
    the exercise of judgment instruction influenced the jury's verdict insofar as it
    incorrectly focused attention away from the general negligence standard, and its
    effect was amplified by several references to it in closing argument. Cf Yates, 
    549 S.E.2d at
    691 & n.18. However, it did not contain the loaded phrase '"reasonable
    and honest mistake of judgment'" that marred the West Virginia instruction. 
    Id. at 690
    .
    While the question of prejudice presents a close call in these cases, I believe
    it is unrealistic to conclude that the error of judgment instruction did not influence
    the jury verdicts. Looking at the instructions as a whole is not itself a sufficient
    way to measure prejudice when we are dealing with a supplemental instruction.
    Such instructions do not undermine the proper statements of the law in the basic
    instructions, but they overemphasize one party's point of view. Given the risks
    inherent in this slanted, argumentative instruction, it is reasonably probable that the
    instruction confused the jury as to the nature of the plaintiffs' claims as well as
    their burden in proving negligence.          As described above, it clearly bolstered
    defense counsels' arguments in closing that focused on the different possible
    diagnoses. While we can never know if the jury would have reached the same
    verdict in the absence of the erroneous instruction, neither can we say it did not
    -16-
    Fergen, et al. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)
    play a significant role in these trials. Accordingly, I believe giving the instruction
    constituted reversible error and would remand for new trials.
    CONCLUSION
    We have long recognized the potential for mischief in the exercise of
    judgment instruction, but our approach to date has been merely to soften its
    language. It remains problematic and continues to evade our admonition that it be
    used "with caution." We should join those courts that have recognized the risks of
    this instruction outweigh any benefits, and disapprove of once and for all the
    giving of this instruction. I respectfully dissent.
    -17-
    Fergen, et al. v. Sestero, M.D., et al., 88819-1 (Stephens, J. Dissent)
    -18-