The Washington State Supreme Court in Fergen v. Sestero recently ruled on an important issue that may have serious consequences to medical malpractice cases in Washington: the “exercise of judgment” jury instruction.  At the end of a jury trial, jurors get a set of instructions that explain the law, and they use these instructions as a guide to help them decide the case.  Jury instructions are extremely powerful because they are in writing, and “approved” by the court as law.  In medical malpractice cases, the “exercise of judgment” instruction states that if a doctor has alternative diagnoses, and the doctor chooses the wrong one, but does so while still exercising reasonable care, then he is not negligent just because his choice was ultimately wrong.  It is a confusing instruction, and one that often times results in a defense verdict.  Plaintiffs’ attorneys feel that it gives an unfair advantage to the defendants in an arena that is already heavily defense-centric.  In Fergen, a consolidated case, the Supreme Court found in a close 5-4 decision that the “exercise of judgement” instructions were given correctly.

What does this mean for Washington personal injury attorneys and medical malpractice claimants

We still don’t know for sure, because the courts holding does not give trial judges a clear indication of when the instruction should be given and when it should not.  The Fergen gives some guidance on when it should be used:

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;

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. (Fergen)

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 165Christensen, 123 Wn.2d at 249.

part 1 can be satisfied by expert testimony
part 2 can be satisfied when the physician used judgment in making a diagnostic choice or choosing a treatment plan
the dissent states:
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.” Id. 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.” Id. at 14 (quoting MillerIII, 91 Wn.2d at 160).