'Th!& opinion was filed for record at 

### ,8:s:>o

## em on (\1'\:;;tM (:2-,?Ql-6

# ~ A.Onard R. Carpenter**~~P#~ne** Qeurt Clerk 

### IN THE SUPREME COURT OF THE STATE OF WASHINGTON DANIFERGEN, individually and as personal representative ofthe ESTATE OF PAUL J. FERGEN, and minors, BRA YDENFERGEN and SYDNEYFERGEN, individually, Petitioners,


### v. ) ) ) ) ) ) ) ) ) ) ) JOHND. SESTERO, M.D., ) individually, and as an employee/ ) shareholder/agent ofDefendant ) Spokane Internal Medicine and ) SPOKANE INTERNAL MEDICINE,) P.S., a Washington corporation, ) Respondents. ) )



# ______________________ ) ANIL APPUKUTTAN, Appellant, 

### v. OVERLAKEMEDICAL CENTER, PUGET SOUND PHYSICIANS, PLLC, ALAN B. BROWN, M.D., MARCUS TRIONE, M.D., and TINANEIDERS, M.D., Respondents. ) ) ) ) ) ) ) ) ) ) ) ) )

-------------- ) No. 88819-1 (consolidated with No. 89192-3)

EnBane

Filed 

### MAR 

### 1 2 

## 2015Fergen v. Sestero, No. 88819-1
FAIRHURST, J.-"The most critical element ofmost medical malpractice claims based on negligence
... is the standard ofcare owed by the doctor to his or herpatient." Watson v. Hockett, 107 Wn.2d 158, 162, 727 P.2d 669 (1986). In order to provide a layjury with the best possible understanding ofthis fundamental, yet often confusing, component of legal liability, supplemental standard of care instructions are sometimes used in addition to the basic instructions. One ofthese supplemental instructions is the exercise ofjudgment instruction, which reminds juries that ifa physician exercises the reasonable care and skill generally required by his or her position,justchoosing between alternate treatments or diagnoses does not make them legally liable for making awrong choice. This is a consolidated case oftwo medical malpractice suits. In each case, an exercise of judgmentjuryinstruction similarto 6 Washington Practice: Washington PatternJuryInstructions: Civi/105.08 (6thed. 2012) (WPI) was given. 1Bothjuries found in favor ofthe defendants and bothplaintiffs assign error. We affirm the trial court's use ofthe exercise of judgmentjury instruction in both cases. We hold that evidence ofconsciouslyruling out other diagnoses is notrequired; a defendantneed only produce sufficient evidence of use of clinical judgment in diagnosis or

1WPI 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 oftreatment] [make the particular diagnosis], the physician exercisedreasonable care and skill within the standard of care the physician was obliged to follow." (Alteration in original.) 2Fergen v. Sestero, No. 88819-1
treatmentto satisfy a trialjudge 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 weekhe wentto see Dr. John Sestero regarding the lump. Sestero completed a physical examination ofthe ankle and described the lump in his chart notes as a "slightnodule" 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 aganglioncyst,2orderedanX rayto make
sure there were no structural defects, referredFergento an orthopedic specialist, and instructed him to follow up with his office as necessary. The X ray confirmed an absence ofany problems inthe ankle, butthe radiologistnoted, "Ifa softtissue cyst is felt anultrasoundmightbe ofhelp."FEP-1, at 155. Sestero informedFergenthat 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 ofmetastatic cancer

2Sestero's notes did not say "benign" explicitly, but a ganglion cyst is a fluid-filled cyst that is considered to be benign. 3Fergen 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 ofthe lump other than a ganglion cyst. During trial, he testified as to his use of clinicaljudgment 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 ofProceedings at 609. Defense medical experts testified that the applicable standard ofcare did notrequire 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 ofthe estate ofPaul Fergen, as well as their minor children, Brayden Fergen and Sydney Fergen, individually filed suit against Sestero and his employer, Spokane Internal Medicine PS, allegingnegligence andbreachofthe standardofcare for failingto takethe 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 ofabenigncystinherentlyinvolvedthe exercise ofclinicaljudgmentsince
4Fergen v. Sestero, No. 88819-1 selection of one diagnosis necessarily entails the rejection of other possible, less likely, diagnoses. Thetrialjudgegavethejuryinstructiononaphysician'sexerciseof 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. Thejury found for the defendant, and Fergen appealed. The CourtofAppeals 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 1001,308P.3d 641 (2013). B. Appukuttan v. Overlake Medical Center Anil Appukuttan suffered an injuryto 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 compartmentsyndrome, as eachbelievedtheirphysicalexaminationsindicatedother diagnoses. 3Ultimately, Appukuttan was diagnosed with compartment syndrome on

3Compartment syndrome is elevatedpressure inmuscle compartments that causes extreme pain from a lack ofblood supply to the muscles.5Fergen v. Sestero, No. 88819-1 his left calfand a fasciotomy was performed. Unfortunately, he suffered permanent foot drop injury as a result ofthe 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, andTinaNeidersMD, allegingnegligenttreatmentduringhis hospitalvisits. Attrial, Appukuttan offered testimony that the physicians violated the standard ofcare 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 medicaljudgment, ruled it out as the diagnosis and followed other courses oftreatment. The trial court gave the exercise of judgmentinstruction thatread 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 ofcare the physician was obliged to follow. Appukuttan Clerk's Papers at 23. Thejury found for the defense, and Appukuttan appealed to the Court ofAppeals, challenging the exercise of judgmentinstruction. He then moved to transfer the appeal to this court. We granted the transfer and consolidated it with Fergen's case.

6Fergen v. Sestero, No. 88819-1II. 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 diagnosesbefore ajudgemay givethe exercise of judgmentjuryinstruction 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 professionaljudgmentin 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 certainjury instruction is within a trial court's discretion and so is reviewed for abuse ofdiscretion. Christensen v. Munsen, 123 Wn.2d 234, 248, 867 P.2d 626 (1994); Seattle W. Indus., Inc. v. DavidA. 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) (citingPetersen v. State, 100 Wn.2d421,440, 671 P.2d230 (1983)). The propriety ofajuryinstruction is governedby the facts oftheparticular case. Housel
v. James, 141 Wn. App. 748, 759, 172 P.3d 712 (2007). Jury instructions are generally sufficient ifthey are supported by the evidence, allow each party to argue its theory ofthe case, and when read as a whole, properly inform the trier offact 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).
7Fergen v. Sestero, No. 88819-1 Legal errors injury instructions are reviewed de novo. Anfinson, 174 Wn.2d at 860. An erroneous instruction is reversible error only ifit is prejudicialto aparty. !d. Ifthe instruction contains a clearmisstatement oflaw,prejudice is presumed and is grounds for reversal unless it canbe shown thatthe error was harmless. !d. (citing Keller, 146 Wn.2d at 249-50); Ezellv. Hutson, 105 Wn. App. 485, 492, 20 P.3d 975 (2001 ). 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 ofjudgment instruction in appropriate medical malpractice cases Petitioners first urge the courtto find thatthis instruction is not fully accepted in Washington law. We reject this invitation and reaffirm that this court has

· consistently approved ofthe exercise ofjudgmentjury 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 ofthe law))); Miller v. Kennedy, 91 Wn.2d 155, 160, 588 P.2d 734 (1978) (Miller III) (remindedpartiesthatthe court explicitly approved ofthe instruction in Miller II and held that the instruction was 8Fergen v. Sestero, No. 88819-1 appropriateunderthese facts becausethephysicianutilizedjudgmentinperforming the biopsy procedure); Watson, 107 Wn.2d at 164-65 (reminded parties of unanimous decisioninMillerIII andagain affirmedtheproprietyofthisinstruction); Christensen, 123 Wn.2d at 238 (affirmed Watson andheldthatuse ofthe 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.Dinnerv. Thorp, 54 Wn.2d 90, 98, 338 P.2d 137 (1959) (the court eliminated "goodfaith" from the instruction, holding that a physician must exercise skill and learning, notjust good faith); Watson, 107 Wn.2d at 164-65 (futurejuryinstructions should remove the word "honest" since it inserts an argumentative aspect not appropriate forjury instruction practice); WPI 105.08, at 612-13 ("error ofjudgment" was changed to "exercise ofjudgment" in order to eliminatejuror misunderstanding ofthe interplay between the standard of
care and a physician error). Despite this language clarification, the use of the instruction itselfcontinues to be affirmed. Our cases consistently state that the error injudgment instruction is a useful



# . toolto remindjuries ofthefallibilityofmedicine. Watson, 107 Wn.2d at 167 ('"these doctrines provide useful watchwords to remindjudge andjury 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
9Fergen v. Sestero, No. 88819-1 treatment"' (emphasis omitted) (quoting Jim M. Perdue & Read Khoury, The Law of TexasMedicalMalpractice: SecondEdition, ch. 2, "Standard ofCare," 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 'errorinjudgment' instruction is, however, to be given with caution."). It may be given to supplement a general instruction on the proper standard ofcare only whenthere is evidence that the physician complied with that standard ofcare and skill requiredbythe circumstances. Christensen, 123 Wn.2d at 238;Miller I, 11 Wn. App. at 280; Watson, 107 Wn.2d at 165. While "[t]he exercise ofprofessionaljudgment is an inherent part ofthe care and skill involved in the practice ofmedicine," 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 instructionis well integratedinto the system of juryinstructions 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. SacredHeart 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
10Fergen v. Sestero, No. 88819-1 supplementaljuryinstructions); 

### Gerard, 86 Wn. App. at 388 (court affirmedthe use ofthe exercise of judgmentjury instruction despite the argument it was contrary to the objective standard of care established in RCW 7.70.040). The exercise of judgmentinstructionis a supplementalinstructionthatcannotbegiven separatefrom the basic standard ofcare instruction. 

### See Christensen, 123 Wn.2d at 249 (citing 

### Watson, 107 Wn.2d at 166). Itis usedto clarifythe general standard ofcare; it does not alter it or add any additional elements for a plaintiffto prove. We follow this clear precedent and again approve of the use of the exercise ofjudgment 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 ofjudgment instruction is justifiedwhen (1) there is evidence thatthe physician exercised reasonable care and skill consistent with the applicable standard of care in formulating his or her judgment and (2) there is evidencethatthe physicianmade a choice amongmultiple 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 ofexpert testimony at

11Fergen v. Sestero, No. 88819-1 each trial and there was substantial evidence to support the defendant-physician's assertions ofcompetency. The issue for this court involves the second requirement-what evidence is sufficientto 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 usedjudgment in making a diagnostic choice or choosing a treatment plan. In the second appeal ofMiller, the court held that "the exercise ofprofessionaljudgment is an inherent part ofthe care and skill involved in the practice ofmedicine." Miller III, 91 Wn.2d at 160. Itheld that "performing the delicate surgery of a kidney biopsy" used the physician's judgment, so the situation was one entitledto the instruction. Id. In Christensen, awomanwith eye diseasebecame legallyblindunderthe care of an ophthalmologist and sued, claiming he breached the standard of care. 123 Wn.2d at 237-38. In analyzingthe error of judgmentinstruction, the courtnotedthat there were three defense experts who testifiedthat the ophthalmologist acted within the standard ofcare, butthatthey 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 oftherapeutic techniques within the proper standard ofcare and used hisjudgmentto choose which course oftreatment to take. The court held that the instruction was appropriate. Id.

12Fergen v. Sestero, No. 88819-1 Turning to some ofthe 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 betweentreatments or diagnoses. The facts ofVasquez v. Markin, 46 Wn. App. 480, 481-82, 489, 731 P.2d 510 (1986), recite a course oftreatment 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 wentto the emergency room where the physician "ruled outpesticidepoisoning and diagnosed asthma." Withoutfurther 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 oftreatment supporting the instruction. InEzell, thejudgment exercised bythephysicianwas decidingto treat apostoperationinfectionwithaparticulartype ofantibiotic when a different antibiotic was needed to clear up the infection. 105 Wn. App. at 488-89. The court approved ofthe use ofthis instruction under these facts. !d. InHousel, a woman developed an abscess months after a herniarepair and she sued the surgeon who performed the repair. 141 Wn. App. at 752-53. Despite a
13Fergen 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 itis not always required. 4It should onlybe given whenthe doctor chooses betweenreasonable, medically acceptable options; it should not be given simply ifa physician is practicingmedicine atthe time. It is not appropriate in othermalpractice actions such as one focused onthe inadequate skills ofthe physician. We require the physicianto make a choice for this instruction, but
we interpret that phrase to encompass any "exercise ofprofessionaljudgment" in treatment or diagnosis. Miller III, 91 Wn.2d at 160. Sestero made many choices that necessarily involved hisjudgment. He had a choice between referring Fergen to a specialist or not. He had a choice between

4The error of judgmentinstruction is notrequired for the defense to present its theory in everymalpractice case. Seattle W Indus., 110 Wn.2d at 9; see also Watson, 107 Wn.2d at 169. Jury instructions are reviewed as a wholeto determine ifthey permit a party to argue his or her theory ofthe case.Anfinson, 174 Wn.2d at 860.14Fergen v. Sestero, No. 88819-1 ordering an X ray ornot. Hehad a choicebetween ordering follow up testing ornot. Expert testimony showed that all ofthose choices were within the standard ofcare basedon a one-weekold, small, soft lump on an ankle. Sesterotestifiedthatthelump being cancerous was so exceedingly rare that it was far down the list ofpossible ailments and he is not sure ifhe considered it as an actual possibility. This indicates that he considered various diagnoses and made a choice between them using his medicaljudgment-hejustchose wrong. This is in line with all the guidelines from Washington case lawregarding 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 theirjudgment, 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 anotherproblemwas likelythe cause ofhis symptoms. Misdiagnosis and the inexactness ofmedicine is not the basis for liability without a deviation from the proper standard ofcare. Both ofthese 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
15Fergen 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 discretionby deciding to give the instructionto thejuries. C. This court should not overruleprecedent 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 shouldbe abandoned. They argue this supplemental instruction is unnecessary since the jury is already given an instruction on the basic standard ofcare and giving an additional instruction creates a risk ofconfusion regarding the standard ofcare to apply in the
case. They claim that leaving it up to the discretion ofajudge whether to give the instructionresults in "unpredictability, inconsistency, and one-sidedness."ReplyBr. ofAppellant (Appukuttan) at 8. And finally, they argue this instruction results in an unfairadvantageto defendants inmedical malpractice cases. FergenandAppukuttan argue that giving this instruction is tantamount to a directed verdict because every medical case necessarily involvesjudgment, as is shown by the fact that in reported
16Fergen v. Sestero, No. 88819-1 decisions whenthe instruction is given, a defense verdict results. 

### Id. However, none ofthese arguments persuade us that the current system and precedent is sufficiently incorrect and harmful tojustify 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 ofthe case. Dissent at 7-8. Yet, instructions that inform thejury ofa party'stheory ofthe case are notnecessarilyharmful orincorrect. Ifaparty'stheory ofthe case is supportedby substantial evidence, he or she is entitledto havethecourt instruct thejury on it. Barrettv. LuckySeven Saloon, Inc., 152 Wn.2d 259, 266-67, 96 P.3d 386 (2004). The dissent contends that the instruction "misdirect[s] ajury's consideration ofa plaintiffs claim" and confuses thejury. Dissent at 9. According to the dissent, the instruction focuses thejury on the physician's choice rather than the plaintiffs claim thatthe physician failed to take the proper steps before making the choice. Id. at 8-9. In addition,the dissent assertsthatthe instructioncouldmakethejurybelieve it does not need to resolve factual issues regardingthe standard ofcare. 

### !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 thejury and is not
17Fergen v. Sestero, No. 88819-1 confusing; it helpsjuries understand the complexity ofthe legal standard they are being askedto 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 contrastto the dissent's assertion, the language ofthe instruction alertsjurorsthatthey mustresolve factual issues regardingthe standard ofcare. The instruction requires thejuryto find that in arriving at the diagnoses or treatmentthe physician exercised reasonable care and skill within the requisite standard ofcare. See Watson, 107 Wn.2d at 165. Eachcasebefore the courtpresents different facts, andit is impossible to have
one formula fit all unique situations,particularlyinmedical malpractice cases where it is important to remember that the inexactness ofmedicine is not a basis for legal liability. This instruction is one ofthe tools in ajudge'stoolbox for him orherto use to ensure this critical elementis 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 ofuncertainty is inherentin this system, butthatis thepricepaidto have anindividualizedbalance ofinstructions for each set offacts. Elaborating instructions are commonlyused innegligence law and are helpful for layjurors to understand the complexities ofa malpractice case. The exercise of judgment instruction reminds the jury that medicine is an inexact science where
18Fergen v. Sestero, No. 88819-1 professionaljudgmentmayreasonablydiffer as to whatconstitutespropertreatment. Watson, 107 Wn.2d at 167; Gerard, 86 Wn. App. at 388-89. Itwill notbe applied in every case but should remain a tool for ajudge to use when he or she decides it is appropriate. Some ofthe foregoing policy concerns mighthave some merit, but our
case lawhas addressed andrejectedthe same issues and arguments; ithas repeatedly affirmed the use of these supplemental instructions. The court will not overrule precedentunless it determines itto be incorrect andharmful, whichpetitionershave notproved. V. CONCLUSION We affirm the Court ofAppeals in Fergen and the trial court inAppukuttan. We hold the exercise ofjudgment instruction is a proper statement ofWashington 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 trialjudge when he or she determines sufficient evidence has been presented that a physician exercised judgment in making a diagnostic or treatment choice. Neithertrialjudge abused their discretion in these cases by giving the instruction. We affirm both cases.

19Fergen v. Sestero, No. 88819-1

WE CONCUR:

20Fergen, etal. v. Sestero, MD., etal.



### No. 88819-1

STEPHENS, J. (

### dissenting)-A claim of medical malpractice sounds in negligence. The plaintiffmustprove the health care provider failed to exercise the "care, skill, and learning expected ofa reasonably prudent health care provider." RCW 7.70.040(1). Instructing thejurythat a physician is not liable for exercising judgment in choosing among alternative courses of treatment or diagnoses adds nothing to the explication ofthis burden. As the majority notes, "'The exercise of professional judgment is an inherent part of the care and skill involved in the practice ofmedicine."' Majority at 12 (quotingMiller v. Kennedy, 

### 91 Wn.2d 155, 160, 588 P.2d 734 (1978) (Miller 

### III)). The instruction thus tells thejuryno more than to excuse from liability a doctor who exercises reasonable care. Courts have long recognized that giving a supplemental instruction on the exercise ofjudgment is unnecessary. And, the instruction has been criticized as slanted, argumentative and confusing tojurors. The majority acknowledges courts are not bound

### to give the instruction, as its absence does not preclude the defense from arguing its theory ofthe case. See 

### majority at 14 & 

### n.4. But, the majorityFergen, etal. 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
casepresents our first clear chance to end the confusion and unfairness engendered by the exercise ofjudgment instruction. We should take this opportunity tojoin a growing number of courts across the nation and jettison this problematic instruction. I respectfully dissent. ANALYSIS The majority's approval of the exercise ofjudgment instructions given in these cases rests on the beliefthat 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 ofinstruction 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 ofthe exercise of judgment instruction, which demonstrates that it is argumentative and confusing, and then turn to why this court should exercise its authorityto reject it. The "Exercise of Judgment"Instruction IsRootedin theDiscredited "Error in Judgment"Instruction andHas NotBeen BroadlyEndorsed in Washington The exercise ofjudgment instn1ction is a relic of a discredited theory of liability, one that sought to hold a doctor to a lesser duty than any otherperson. 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, etal. v. Sestero, MD., etal., 88819-1 (Stephens, J. Dissent)

review ofthe error injudgment instruction, we rejected the good faith language, finding it misleading in suggesting good faith could absolve a physician of liability, irrespective ofnegligence. 

### 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[ofa patient's condition], [the physician] reache[d] a wrong conclusion, he is not liable for errors injudgment." 

### Id. at 896. We did not rule on whether the instruction standing alone was an incorrect statement oflaw; instead, we held that when given alongside several other instructions "onthe subject ofthe standards of
care and skill required ofmedical 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, etal. v. Sestero, MD., etal., 88819-1 (Stephens, J. Dissent)


### acknowledges the existence of the instruction but offers no recommended language, the committee inthe 1990pocketpart first offeredpattern language). 1 

### We returned to the error in judgment instruction in Miller 

### III, 91 Wn.2d 155.2 

### Therewe considered language instructingthejurythat "aphysician is not liable for
an honest error of judgment where he or she exercised the requisite degree ofcare and skill in arriving at thejudgment." Id. 

### at 160. We observed that "[c]ertainly Dr. Kennedy was called upon to exercise his professionaljudgment 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 ofthe "honest error" language to the extent that it "'muddle[d] thejury'sunderstanding ofthe burden imposedupon 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 aproper 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 orrevised inresponse to decisiona11aw or statute. See id. cmt. at 612 (explaining that the error ofjudgment 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 onjuryinstructions to adopt language reflecting a**chan~e** ina governing statute). Miller I is the Court ofAppeals 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 ofthe Court ofAppeals decision,Miller v. Kennedy, 85 Wn.2d 151, 530 P.3d 334 (1975). Miller III is our review ofthe trial court's decision following the remand from the Court ofAppeals. -4-Fergen, etal. v. Sestero, M.D., etal., 88819-1 (Stephens, J. Dissent)



### be given with caution. Id. 

### Inparticular, it should notbe given unless the evidence shows the physician exercised reasonable care and was in fact "confronted with a choice among competingtherapeutic 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 judgmentinstruction 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 ofcare and can onlybe given with
aproper standard ofcare instruction." Id. 

### As this briefoverview makes clear, ourprecedent can hardlybe described as a ringing endorsement ofthe error or exercise ofjudgment instruction. Injust a handful of cases, we have examined the most argumentative aspects of earlier versions ofthe 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 ofjudgment" 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 atrend 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, etal. 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 ofthese instructionsbased onthepotential forjuryconfusion").3 I share the concern expressed by our Court of Appeals, which in 2001 commented: Ifthe 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 ofjudgment" 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 ofredefining 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 ofjudgment instruction in medical negligence
cases.



### The Exercise of JudgmentInstruction Is Confusing, Unfair, andInconsistentwith theModern Practice of Giving OnlyBasic, NeutralInstructions Jurors have a difficultjob. We expect them to understand and apply legal principles served up to them "in a briefformal incantation." Joseph H. King, Jr., 

### Reconciling The Exercise ofJudgment and the Objective Standard ofCare in Medical Malpractice, 52 OKLA. L. REv. 49, 64 (1999). "The plight ofjurors 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 courthas 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 ofthe rules followed by an examination. As another writer states, '[i]t is all too easy for those ofus 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 ofinstructions. 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 ofview. 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 ajury instruction"). We have long ascribed to the philosophy that when it comes to instructing ajury, less is more. Laudermilkv. Carpenter, 

### 78 Wn.2d 92, 100,457P.2d 1004 (1969). As the court inLaudermilkexplained: Ithas, for some years, been the policy ofour Washington system of jurisprudence, in regard to the instruction ofjuries, to avoid instructions which emphasize certain aspects ofthe case and which might subject the trialjudge to the charge ofcommenting on the evidence, and also, to avoid slanted instructions, formula instructions, or any instruction other than those which enunciate the basic and essential elements ofthe legal rules necessary for ajuryto 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, etal. v. Sestero, M.D., etal., 88819-1 (Stephens, J. Dissent)

are now deemed to be instructions which "point up," "underline," or "buttress"portions ofcounsel's argument. Id. at 100-01. In every case to have considered an error ofjudgment instruction, this court has recognized this type ofinstruction serves to emphasize the defendant's theory ofthe case. Ithas beenvariously 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 ofreasonable care to focus attention on whether the health care provider made a choice. It tempts thejury into viewing professional or clinicaljudgment 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 ofmedicine," Miller, 91 Wn.2d at 160, the instruction may leadjuries to conclude a defensible choiceis synonymous with a nonnegligent choice.

4 Wehave recognizedthatthe instruction is notnecessary for a defendant ina civil malpractice case to argue a defense theory; it is at most a supplementary instruction, and a trialjudge does not commit error by refusing to give it. See Seattle W Indus., Inc. v. DavidA. 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 maybe entitledto the exercise of judgmentinstruction, id. at 17. The problem is, themajoritynevertells us whenthis willbe the case. 5 Underscoring this proposition is amici Washington State Medical Association (WSMA) and Washington State Hospital Association's (WSHA) insistence that the exercise ofjudgment is a "defense." Br. ofAmici Curiae WSMA & WSHA at 14. An affirmative defense admits the elements ofthe claim but offers an excuse orjustification 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 ajury's consideration ofa plaintiffs claim. The claims in these cases were not premised
on negligence in choosing diagnosis (or treatment) A over diagnosis (or treatment) B. Theplaintiffs claimed the physicians fell below a reasonable standard ofcare 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 thejury, 

### "I want to talkto you a little bit about standard ofcare andjudgment.
... [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 discussedthe exercise of judgmentinstruction: And that gets to this issue ofjudgment, the judgment instruction, I believe its InstructionNumber 18 thatJudge Sypolthas 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. Onrebuttal, 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 ofthis case, and they have tried very
-9-Fergen, etal. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)

hard to leave you with that impression. We're not saying that. We'rejust saying he shouldhave done more thanhe did. 

### Id. at 2217. In the end, thejury 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, inAppukuttan's case, defense counsel emphasized the exercise of judgmentinstruction, 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 ofhematoma; it's been talked about at length. And what this says, ifthere are two reasonable ways to pursue something, the judgehas instructed you, it's in the instructions, aphysician is not liable for pursuing one ofthose or atreatment option, even ifyou believe in hindsight that the patient had compartment syndrome at the time, as long as it is reasonable, thenhe 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 ofthe exercise of judgment instruction gave the defense theory an unfair advantage, essentially stampingitwiththejudge's approval. In addition to being slanted and argumentative, the exercise ofjudgment instruction potentially confuses thejury with respect to the factual issues it must resolve. Based on the instruction, ajury 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, etal. v. Sestero, MD., etal., 88819-1 

### (Stephens, J. 

### Dissent)

in the presentation ofthe evidence or in the closing arguments between disputes
overthe standard ofcare and questions ofprofessionaljudgment. So, ifthe 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. Thejury's thought process inheres in its verdict. But, it is important to recognize the risk ofconfusion this instruction presents in any medical negligence case, including these. The majority cannot elucidate a workable rule for a trialjudge to decide when the risk ofgiving 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 courthas attempted to limit the introduction of the instruction to "situations where the doctor uses judgment to choose between alternative treatments or diagnoses." Id. 

### (citingMiller 

### 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 "alowbarthat 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 ofprofessional judgment' in treatment or diagnosis." !d. 

### at 14 (quoting Miller 

### III, 91 Wn.2d at 160). The Miller 

### III court acknowledged that the exercise ofprofessional 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 ofprofessional judgment is an inherent part ofthe
care and skill involved in the practice ofmedicine."). Ifthere 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 ofthe basic infirmity ofthe exercise ofjudgment instruction. Perhaps the only saving grace for trialjudges is the standard ofreview. 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 CourtShould CategoricallyDisapprove of the Exercise of JudgmentInstruction 

### Preliminarily, I am not convinced that our authorityto reject the giving ofan error or exercise ofjudgment 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 instructingjuries evolve over time, and our precedent cannot be characterized as broadly endorsing this instruction. No one contends that the exercise ofjudgment instruction is a misstatement of law or that the law ofmedical negligence itself

6 The majority suggests the instruction would be inappropriate in a challenge that focuses on the inadequate skills ofthe physician. Majority at 14. Ifthis 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 withcaution. -12-Fergen, etal. 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 instructjuries in medical negligence cases. Even ifwe must overruleprecedentin orderto reject this instruction, 

### itis 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 ofjudgment instruction is slanted, argumentative, and confusing tojuries. Ourprecedent has consisted mainly ofpartial rejections ofthe worst language in earlier versions ofthe instruction. Since our last consideration ofthe 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 ofeschewing 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 ofthe law at the trial court level andprovides absolutelyno 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 ofa medical negligence claim reinforces the value oflimitingjury instructions to those thatprovide the legal framework for thejury's deliberations. See Laudermilk, 78 Wn.2d at 100 (cautioning against giving instructions "other than those which enunciate thebasic and essential elements ofthe legal rules necessary for ajuryto reach a verdict"). -13-Fergen, etal. v. Sestero, MD., et al., 88819-1 (Stephens, J. Dissent)



### Our precedent is harmful for many ofthe 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 ofthe "lowbar" set bythe majority. Majority at 12-13. Trial judges will rightly complain that while we continue to wring our hands about the risks ofgiving an exercise of judgment instruction, we offer little help in deciding whenit should and should notbe given. Finally, I believe it shows a harmful effect ofthis type ofinstruction that it
serves to bolster one party's theory ofthe 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 ofjudgment 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 ofmisdirecting or confusing thejuryoutweigh anypossible 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, etal. v. Sestero, M.D., etal., 88819-1 (Stephens, J. Dissent)



### medical malpractice and thatWPI 105.08 is not an appropriate "supplement" to the instructions. The ErroneousInstruction in These CasesRequiresReversal 

### The remaining question is whether the instructions given in these cases created a sufficientrisk ofprejudice 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 ofthe instruction that used terms such as "honest error" is notpresent inthe current language. Br. ofResp'ts (Fergen) at 42- 43. Courts that have disapproved ofuse ofan exercise ofjudgment 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. ofW. Va. Bd. ofTrs., 

### 209 W. Va. 487, 549 S.E.2d 681, 691-92 & 

### n.19 (2001) (finding reversible error based on reasonable probability the instruction influencedjury's verdict; collecting similar cases). The question is not particularly well developed in this case, as the briefing focuses on the merits ofthe exercise ofjudgment instruction itself. Certainly, the erroneous instruction did not stand in isolation; it supplemented proper standard of care

-15-Fergen, etal. 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 thejuryofthe relevant law, they did. On the other hand, as in the Yates 

### case, there is a reasonable probability that the exercise ofjudgment 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 ofprejudice presents a close call in these cases, I believe it is unrealistic to conclude that the error ofjudgment instruction did not influence thejury 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 ofthe law in the basic instructions, but they overemphasize one party's point ofview. Given the risks inherent inthis slanted, argumentative instruction, it is reasonablyprobable that the instruction confused the jury as to the nature ofthe 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 ifthe jury would have reached the same verdict in the absence ofthe erroneous instruction, neither can we say it did not

-16-Fergen, etal. v. Sestero, MD., etal., 88819-1 (Stephens, J. Dissent)


### play a significant role in these trials. Accordingly, I believe giving the instruction constitutedreversible error and wouldremand 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 shouldjointhose courts that have recognized the risks of this instruction outweigh any benefits, and disapprove of once and for all the giving ofthis instruction. I respectfully dissent.

-17-Fergen, etal. v. Sestero, M.D., etal., 88819-1 (Stephens, J. Dissent)

-18-