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WPI 105.08 Exercise of Judgment

6 WAPRAC WPI 105.08Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 105.08 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Particularized Standards of Conduct
Chapter 105. Health Care
WPI 105.08 Exercise of Judgment
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.
This instruction may be used only when the doctor is confronted with a choice among competing therapeutic techniques or among medical diagnoses. The current form of the instruction is intended to respond to the Supreme Court's statement that the instruction is to be used with caution; see the Comment below. Use this instruction to supplement either WPI 105.01 (Negligence—General Health Care Provider), or WPI 105.02 (Negligence—Health Care Provider—Specialist). The court should give WPI 105.07 (No Guarantee—Poor Result) (first bracketed language) with this instruction.
The instruction does not apply to informed consent claims, only to claims alleging violation of the standard of care under RCW 7.70.040.
The intended purpose of the exercise of judgment instruction has been recognized as reminding jurors of the proposition that “medicine is an inexact science where professional judgment may reasonably differ as to what constitutes proper treatment.” Fergen v. Sestero, 182 Wn.2d 794, 803, 811, 346 P.3d 708 (2015) (citing Watson v. Hockett, 107 Wn.2d 158, 167, 727 P.2d 669 (1986).)
In 2015, the Washington Supreme Court “reaffirm[ed] that this court has consistently approved of the exercise of judgment jury instruction in appropriate medical malpractice cases.” Fergen v. Sestero, 182 Wn.2d 794, 803, 346 P.3d 708 (2015). Before concluding that it continued to be “a proper statement of Washington law,” the court traced the evolution of the instruction through Miller v. Kennedy, 85 Wn.2d 151, 530 P.2d 334 (1975); Watson v. Hockett, 107 Wn.2d 158, 727 P.2d 669 (1986), and Christenson v. Munsen, 123 Wn.2d 234, 867 P.2d 626 (1994), as well as the edits of the WPI Committee. Each of the cited cases, while urging caution in the use of the instruction, approved of it in the case before it. The court noted with evident approval that appellate courts had consistently set a “low bar that must be satisfied for the court to hold that a physician made a choice between treatments or diagnoses.” Fergen v. Sestero, 182 Wn.2d at 807.
Ultimately, the crux of the Fergen court's holding was that the court would not overrule the well-established precedent approving use of this instruction. This was over a spirited dissent disputing the conclusion that the instruction had not been shown to be “incorrect or harmful.” The four dissenting justices labeled the instruction “slanted and argumentative” and asserted that it “potentially confuses the jury with respect to the issues it must resolve.” Fergen v. Sestero, 182 Wn.2d at 820 (J. Stephens, dissenting).
Nevertheless, on the same day, in the case of Paetsch v. Spokane Dermatology Clinic, PS, 182 Wn.2d 843, 348 P.3d 389 (2015), all nine justices concurred in the denial of a challenge to this instruction because “Paetsch does not raise an argument, distinguishable from those raised in Fergen, that this instruction should be rejected.” Paetsch v. Spokane Dermatology Clinic, PS, 182 Wn.2d at 852. Whether this signals that the debate is forever resolved or simply in remission cannot be known. The appellate courts have not wholly withdrawn the earlier admonition that “[t]his instruction is to be used cautiously and only when there is evidence” supporting it. Housel v. James, 141 Wn.App. 748, 760, 172 P.3d 712 (2007).
Application. The principle underlying this instruction has been applied not only to physicians, but also to nurses. See Gerard v. Sacred Heart Medical Center, 86 Wn.App. 387, 937 P.2d 1104 (1997).
[Current as of September 2018.]
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