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A recent decision from the Washington Supreme Court, Beard v. Everett Clinic, PLLC, is one every medical malpractice lawyer in Washington should understand. While the opinion focuses on a jury instruction, its real impact is on how we frame and prove negligence at trial.
The Case
The case arose from the treatment of a patient with lupus who presented multiple times with worsening symptoms. Her providers adjusted medications and monitored her condition, but did not escalate care in ways the plaintiff contended were required, such as pursuing a more aggressive diagnostic workup or referral. She ultimately died from intestinal tuberculosis.
At trial, the defense leaned heavily on the idea that medicine often involves choosing between more than one reasonable course of action. Over the plaintiff’s objection, the court gave the “exercise of judgment” jury instruction, which tells jurors that a provider is not negligent simply for choosing among medically acceptable alternatives, so long as the choice meets the standard of care. The jury returned a defense verdict, and the issue on appeal was whether that instruction should have been given at all.
What the Court Decided
The Supreme Court affirmed the verdict and held that the “exercise of judgment” instruction is proper, but only in a specific circumstance: when there is evidence that the provider’s decision-making process, and not just the ultimate decision, could meet the standard of care.
The Court made clear that it is not enough for the defense to point to a favorable outcome or to argue, in hindsight, that the chosen course was one of several acceptable options. There must be evidence that the provider actually engaged in a reasonable clinical process in arriving at that decision. The Court pointed to things like chart documentation, contemporaneous actions, and expert testimony as ways that process can be shown.
At the same time, the Court stopped short of giving the instruction a broad endorsement. It emphasized that the instruction is not appropriate in every case and depends on whether the evidence supports it. Concurring justices went further, cautioning that trial courts should use it sparingly because of the risk that it overemphasizes the defense theory.
The Takeaway
The “exercise of judgment” instruction should die. It adds nothing to Washington’s standard negligence framework and risks confusing jurors into thinking that “judgment” is a defense in itself. It is not. The standard of care already accounts for reasonable clinical decision-making. Layering this instruction on top of that invites jurors to give unwarranted deference to providers simply because medicine involves choices.
Nothing in Beard changes that fundamental problem. If anything, the decision highlights how easily the instruction can blur the line between a reasonable choice and an unexamined one. The better approach is abolishing the instruction altogether.
But until that happens, Beard gives us a way to turn the instruction to our advantage.
If the defense wants the benefit of the “exercise of judgment” language, they have to earn it. The case makes clear that the instruction only applies where there is real evidence of a deliberative, standard-of-care-compliant process. That creates an opening. If the chart is thin, if key risks were not considered, if the provider failed to follow up or rule out dangerous conditions, those are evidence of a deficient decision-making process.
When the instruction is requested, force the issue:
- What exactly did the provider consider?
- Where is that reflected in the chart?
- Did the provider rule out dangerous or time-sensitive conditions, and how?
- Was a consultation or referral indicated, and if so, why didn’t it occur?
- What alternatives were actually weighed in real time – not reconstructed later for litigation?
If the answers are thin, the instruction should not be given at all. And if it is given, it becomes a tool for the plaintiff. You can argue that the case is not about a thoughtful choice among reasonable options, it is about the absence of any meaningful judgment in the first place. Framed correctly, the instruction does not shield the defense; it spotlights the gap between what should have happened and what actually did.