The Washington Supreme Court Upholds Use of “Exercise of Judgment” Jury Instruction

On March 12, 2015, the Washington Supreme Court approved of the use of an “exercise of judgment” jury instruction in medical malpractice cases through its ruling in Fergen v. Sestero, 182 Wn.2d 794, 346 P.3d 708 (2015). The contentious decision resulted in a 5-4 split of the Court with Justices Fairhurst, Madsen, Owens, J.M. Johnson, and McCloud approving use of the disputed instruction.1 The dissent, authored by Justice Stephens, criticized continued use of the instruction as redundant and slanted in favor of medical malpractice defendants.2Justices Wiggins, Gonzalez, and Charles W. Johnson joined in the dissent.3

The exercise of judgment instruction is codified in WPI 105.08, and helps to define “the standard of care owed by the doctor to his or her patient.”4

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.5

The Committee on Jury Instructions’ Note on Use limits use of WPI 105.08 to situations “when the doctor is confronted with a choice among competing therapeutic techniques or among medical diagnoses.”6 The Washington Supreme Court has previously reviewed similar instructions and held that error in judgment instruction should be “given with caution.”7 While the Supreme Court’s recent decision acknowledged that WPI 105.08 “is not appropriate in every medical malpractice action,” the majority upheld use of the instruction in both the underlying cases and continuing use of the instruction going forward.8

In Fergen, the Supreme Court reviewed two consolidated cases where WPI 105.08 had been used and in which the juries returned defense verdicts.9 In both cases, WPI 105.08 was given to the jury based on the physicians’ testimony that they utilized clinical judgment to make the diagnoses.10 Following the defense verdicts, plaintiffs in both cases appealed.11 In Fergen, the Court of Appeals affirmed the trial court’s use of WPI 105.08,12 certiorari was sought, and the petition for review was granted.13 After plaintiff appealed, Appukuttan was transferred directly to the Supreme Court for consolidation.14

Upon review, the Supreme Court held that WPI 105.08 remains an approved jury instruction, and that its use is broadly permissible in cases where a physician made a choice between reasonable alternative treatments or diagnoses.15 The Court reviewed Washington precedent on the issue and found that existing law supported use of WPI 105.08 to assist the jury in understanding the appropriate standard of care.16

The Court found that deference was owed to the trial court’s choice of jury instructions based on the facts of the individual case. As such, the Supreme Court established only limited guidance for determining where WPI 105.08 should be used in future cases:17

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.18

However, the Court did reiterate the guidance offered in the Note on Use, limiting the use of WPI 105.08 to situations in which there is evidence that reasonable care was exercised and that an actual choice was made:19

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).20

The dissent strongly criticized continued use of WPI 105.08.21 Generally, the dissent argued that prior precedent does not strongly support the continued use of the exercise of judgment instruction, and that future use should be precluded due to concern that the instruction “serves to bolster one party’s theory of the case.”22 The dissent would have remanded the cases for retrial based on the alleged error in permitting use of WPI 105.08.23 The narrow margin separating the majority and the dissent is notable because, while preserved for now, the dissent clearly indicates an intent to overturn prior precedent if able to garner an additional vote.24

Generally, it appears that broad discretion will continue to be given to trial courts to use WPI 105.08 as a possible jury instruction. This is directly advantageous to medical malpractice defendants who are often faced with criticism, based on the benefit of hindsight, of a diagnostic or treatment choice. Use of this instruction can help to reiterate to the jury “the inexactness of medicine” and malpractice defendants should consider requesting this instruction whenever plaintiffs criticize a physician’s use of clinical judgment. However, while the Supreme Court’s decision is a distinct win for the defense bar, caution should nevertheless be used in offering WPI 105.08, based on the dissent’s expressed desire to completely foreclose future use of this instruction.



  1. Fergen v. Sestero, 182 Wn.2d 794, 812, 346 P.3d 708 (2015).
  2. Id.
  3. Id. at 826.
  4. Id. at 798.
  5. 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 105.08 (6th ed.).
  6. Id.
  7. Watson v. Hockett, 107 Wn.2d 158, 165, 727 P.2d 669 (1986);
  8. Fergen, 182 Wn.2d at 804-805.
  9. Id. at 798 (In Fergen v. Sestero, a physician incorrectly diagnosed a lump in the plaintiff’s ankle as a cyst instead of metastatic cancer. In Appukuttan v. Overlake Medical Center, the plaintiff suffered a leg injury which was reviewed by multiple physicians who failed to diagnose and treat the plaintiff’s compartment syndrome before permanent injury resulted.)
  10. Id. at 798-800.
  11. Id. at 801.
  12. Fergen v. Sestero, 174 Wn. App. 393, 397, 298 P.3d 782 (2013).
  13. Fergen v. Sestero, 178 Wn.2d 1001, 308 P.3d 641 (2013).
  14. Fergen, 182 Wn.2d at at 802.
  15. Id. at 806-809.
  16. Id.; see also Christensen v. Munsen, 123 Wn.2d 234, 249, 867 P.2d 626 (1994) (“[A]n error in judgment instruction supplements the standard of care and can only be given with a proper standard of care instruction.”); Watson, 107 Wn.2d at 167 (Affirmed the use of instruction to “remind judge and jury that medicine is an inexact science”); Miller v. Kennedy, 91 Wn. 2d 155, 160 588 P.2d 734 (1978).
  17. Fergen, 182 Wn.2d at 802 (“Whether to give a certain jury instruction is within a trial court’s discretion and so is reviewed for abuse of discretion.”).
  18. Id.
  19. Id. at 806.
  20. Id. at 806.
  21. Id. at 812-26.
  22. Id. at 823.
  23. Id. at 825.
  24. Id.