'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, BRA YDEN FERGEN 

and SYDNEY FERGEN, 

individually, 

Petitioners, 

v. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

JOHN D. SESTERO, M.D., ) 

individually, and as an employee/ ) 

shareholder/agent of Defendant ) 

Spokane Internal Medicine and ) 

SPOKANE INTERNAL MEDICINE,) 

P.S., a Washington corporation, ) 

Respondents. 

) 

) ______________________ ) 

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. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

--------------) 

No. 88819-1 

(consolidated with 

No. 89192-3) 

En Bane 

Filed MAR 1 2 2015 
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 

2Sestero'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. Over lake 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 

7 46 (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 of Judgment 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 of Judgment 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-