Steven Beard, V. The Everett Clinic Pllc ( 2024 )


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  •  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STEVEN BEARD, individually and as
    the personal representative of THE                        DIVISION ONE
    ESTATE OF SUPAK BEARD,
    No. 85208-6-I
    Appellant,
    PUBLISHED OPINION
    v.
    THE EVERETT CLINIC, PLLC; OPTUM
    CARE SERVICES COMPANY; OPTUM
    CARE, INC.; and SHAILA H. GALA,
    MD,
    Respondents.
    DWYER, J. — Steven Beard appeals from the judgment entered on his
    medical malpractice claims brought individually and on behalf of the estate of his
    deceased wife, Supak Beard,1 against the Everett Clinic and rheumatologist Dr.
    Shaila Gala. He contends that the trial court erred by issuing two jury
    instructions: the “exercise of judgment” instruction and the “no guarantee-poor
    result” instruction. The issuance of the “exercise of judgment” instruction was
    improper, Beard avers, for three reasons: first, it was an improper comment on
    the evidence; second, insufficient testimony supported the issuance of the
    instruction; and, third, in conjunction with the other challenged instruction, the
    defense case was unfairly emphasized. Beard asserts that the issuance of the
    1 Supak Beard is the decedent and Steven Beard is her surviving spouse.       Throughout
    the record, Supak Beard is referred to as “Supak.” Steven Beard as plaintiff, is referenced as
    “Beard.” For clarity and consistency with the record, this pattern will be followed herein.
    No. 85208-6-I/2
    “no guarantee-poor result” instruction was also improper for three reasons: first, it
    misstated the law; second, it constituted an improper comment on the evidence;
    and third, in conjunction with the other challenged instruction, it unfairly
    emphasized the defense case. We disagree and therefore affirm.
    I
    Supak Beard was born in Thailand. In 1991, Supak was diagnosed with
    lupus while she was still living in Thailand.2 Lupus is an incurable and chronic
    disease that is often “quiescent,” but can also cause flare-ups that range in
    severity from mild to life-threatening. Flares are often treated with the steroid
    prednisone. Supak began taking varying dosage levels of prednisone to manage
    her lupus in 1991.
    Supak moved to Washington in 2007 and married Steven Beard. In
    December 2007, Supak began treatment with Dr. Shaila Gala and continued with
    her until Supak’s death on March 24, 2018. Supak had been a registered nurse
    in Thailand and continued fulltime work as a nurse in Washington.
    From 2007 to 2017, Supak had not required more than 10 milligrams of
    prednisone to manage her lupus flares. Since 2014, she had been routinely
    taking only 4 milligram doses. The pertinent events preceding her death
    occurred between November 2017 and March 2018.
    On November 27, 2017, Supak visited Dr. Gala, complaining of joint pain
    in her left shoulder, right hand, and left knee. In July 2017, Supak had visited her
    family in Thailand. Dr. Gala concluded that Supak was suffering from a lupus
    2 At trial, expert witness Dr. Elizabeth Volkmann explained that Supak had what is known
    as systemic lupus erythematosus or SLE.
    2
    No. 85208-6-I/3
    flare, likely resulting from stressors from travel and working overtime as a nurse,
    as was a usual pattern in her medical history. Dr. Gala injected Supak with
    prednisone. She also advised Supak to increase her oral dose of prednisone
    from 5 milligrams to 15 milligrams because, in the past, Supak’s arthritis pain had
    resolved with increased doses.
    Supak next saw Dr. Gala on January 4, 2018. Supak continued to suffer
    from pain in her shoulder. Accordingly, Dr. Gala advised her to increase the
    prednisone dosage to 20 milligrams. Additionally, she prescribed methotrexate,
    which is a lupus medication. Dr. Gala also recommended an MRI of her shoulder
    to see if there was a tear or another injury causing Supak’s pain. Supak reported
    feeling better the next day.
    Between January 4 and January 15, Supak self-tapered the prednisone,
    lowering her dosage, but her pain increased as a result. Because Supak worked
    as a trained nurse, Dr. Gala knew that she was able to monitor her body, report
    her symptoms, and know when to isolate at home.
    On January 15, Supak returned to see Dr. Gala, complaining of severe
    wrist pain and hand swelling. Dr. Gala re-checked Supak’s lab results and
    increased the methotrexate dosage. Dr. Gala also recommended that Supak
    increase the dosage of prednisone to 60 milligrams and she injected Supak’s
    shoulder muscle with an additional 40 milligrams of prednisone.
    3
    No. 85208-6-I/4
    The results of Supak’s shoulder MRI indicated that Supak had
    inflammatory arthritis. Her lab results showed elevated liver function.3 Dr. Gala
    asked her clinic staff to call Supak to inform her of these results and to tell her to
    stop taking the methotrexate because it could be causing her elevated liver
    enzymes. Dr. Gala suggested that Supak continue to take 60 milligrams of
    prednisone and advised her to schedule an interventional radiology appointment
    to assess her shoulder.
    On January 31, Supak called the clinic seeking to cancel her February 15
    appointment with Dr. Gala and reschedule it to March 1. Supak told the clinic
    staff that she was canceling the appointment because she was feeling better and
    planned to travel to Florida to see her family. Dr. Gala was reassured upon
    learning that Supak felt well enough to travel.
    However, on February 5, Supak called Dr. Gala’s office to report that she
    had been having a fever and chills for several days. Another rheumatologist,
    working the shift in place of Dr. Gala, advised Supak to be checked for infection.
    Supak went to an urgent care walk-in clinic. The physician who saw her ordered
    blood and urine cultures and a chest X-ray. The clinic physician noted that
    Supak had a fever, chills, and an elevated heart rate. Supak did not have a
    cough, runny nose, abdominal pain, or a change in her bowel behavior.
    The radiologist who read Supak’s X-ray on February 5 noted a mass or a
    lesion: an “abnormal band-like . . . increased density in the right lung apex.” He
    3 “Elevated liver function” is another way to say that there is a high level of liver enzymes
    in an individual’s blood. This blood test result (“liver panel”) is often a sign of inflamed or
    damaged cells in the liver and may indicate liver disease.
    4
    No. 85208-6-I/5
    reported that the opacity “may represent atelectasis or artifact and less likely
    pneumonia. Lungs otherwise appear clear.” The radiologist recommended a
    follow-up X-ray or a CT scan for further assessment. Dr. Gala did not order
    another X-ray or a CT scan because she believed that the note suggesting
    follow-up imaging was directed at the ordering physician.
    After Supak’s February 5 urgent care visit, the physician called Dr. Gala’s
    office to inform her of the results. The urgent care doctor, in consultation with the
    rheumatologist taking calls for Dr. Gala that day, planned to start Supak on a 10-
    day course of Levaquin (an antibiotic) right away to preemptively treat the
    possibility of infection. The next day, after starting antibiotics, Supak reported
    that the fever had gone away. Dr. Gala told Supak to call her if she had a return
    of symptoms.
    On February 11 (the seventh of ten days of antibiotic administration), the
    walk-in clinic called Supak to check on her, and Supak reported that she still did
    not have a fever. The blood and urine results later came back negative for
    infection.
    Supak took her week-long trip to visit her in-laws in Florida. When she
    returned from Florida on February 17, she resumed her usual fulltime work
    schedule as a nurse. Dr. Gala was reassured by these activities.
    However, on March 1, Supak was again having recurrent fever, chills, and
    an elevated heart rate, so she returned to see Dr. Gala. At this visit, in addition
    to fever and chills, Supak’s liver function tests showed elevated enzyme levels.
    Therefore, although Supak’s exam was consistent with an arthritis flare, Dr. Gala
    5
    No. 85208-6-I/6
    believed it prudent to submit blood and urine samples for a full evaluation.4 On
    direct examination, Dr. Gala testified about her decisions:
    Q       . . . [W]hat did you tell Mrs. Beard at the close of this
    March 1st visit in terms of the overarching plan for her as of that
    point in time?
    A       That we are going to treat her lupus arthritis flare.
    We’re also going to evaluate for the possibility of infection, given
    one day of fever, and that we needed to follow up on these
    elevated liver function tests. And with the labs that I ordered on
    March 1st, those results guide me. And if elevated, I would send
    her to gastroenterology . . . .
    Q       Before we see how that plan played out, Dr. Gala, if
    you, in another scenario, have a patient where you are acutely
    concerned about an infection for a patient, where do you refer that
    patient to if you think that you have an acute concern for infection in
    a patient?
    A       If there’s an acute concern, then I would refer that
    patient to the ER if I was concerned of an active infection at that
    time.
    Dr. Gala testified that she did not think that Supak required emergency
    intervention on March 1. In Supak’s chart that day, Dr. Gala noted that she did
    not understand the etiology or the source of the fever and, therefore, before
    taking action, she wanted to receive the results of the lab tests.
    On March 2, Supak called Dr. Gala to report that her fever had risen from
    her previous visit. Dr. Gala had not yet received the blood and urine test results
    at this point. She had, however, received some of the other test results and
    “[c]reated a telephone encounter” (ordering her staff to call the patient) to let
    Supak know that her liver tests remained elevated and that Dr. Gala was going to
    4 A urine or blood “culture” test checks the sample taken for germs that cause infections.
    A “culture” is the term for growing microorganisms such as bacteria in a laboratory setting.
    Physicians order a “culture” to identify the bacteria. A urine culture can identify kidney disease as
    well as diabetes and cancer. A blood culture test can identify serious infections in lungs, kidneys,
    bowels, gallbladder, or heart valves.
    6
    No. 85208-6-I/7
    put a “plan in place” whereby Supak would see a gastroenterologist to “facilitate
    . . . a workup of this.” Dr. Gala also ordered an ultrasound of Supak’s abdomen.
    Dr. Gala referred Supak to a gastroenterologist, Dr. Janet King. Dr. Gala
    explained that she did not think the referral was urgent, given Supak’s recent test
    results. She did not inform Dr. King about possible infection because “[Dr. King]
    knows how to do her job as a gastroenterologist.”
    Supak’s blood and urine tests came back negative, with no evidence of
    infection.
    On March 5, Supak had blood in her stool. Dr. Gala ordered a stool
    pathogen panel to test Supak’s stool for infection, ordered an ultrasound to look
    for the source of blood, and asked her medical assistant to ensure that Supak
    was going in to see the gastroenterologist.
    On March 6, the results of the stool pathogen panel were negative.
    On March 13, Supak was examined by Dr. King. At this appointment,
    Supak complained of abdominal pain. Dr. King conducted a liver function test
    and found that Supak had abnormal liver function. Dr. King noted that if Supak’s
    liver function tests remained elevated and the lab work was nondiagnostic, she
    would then need a liver biopsy. Dr. King also recommended an endoscopy.5 On
    March 19, Dr. King performed that procedure. The result was “normal.”
    On March 20, Supak returned to the urgent care walk-in clinic with
    abdominal pain, fever, and nausea. The attending doctor told Supak that she
    5 An endoscopy is a nonsurgical procedure during which a long flexible tube with a
    camera is inserted into the body through the mouth, throat, and esophagus. The scope enables
    the physicians to look inside a patient’s stomach and upper gastrointestinal tract.
    7
    No. 85208-6-I/8
    should not wait until her April 3 appointment with Dr. Gala and that Supak
    needed to see her before then.
    Dr. Gala saw Supak two days later. Supak was still reporting abdominal
    pain, fever, and chills. Dr. Gala ordered a CT scan of Supak’s chest, abdomen,
    and pelvis. At 6:00 p.m. that evening, the CT results showed that Supak had
    “mass like opacities of the right upper lobe and right perihilar region,” and
    “multiple bilateral solid pulmonary nodules” (referenced in trial testimony as “[g]olf
    ball sized masses”). At approximately 8:30 p.m., Dr. Gala called Supak and told
    her to immediately go to the emergency room. Dr. Gala did not treat Supak after
    this.
    Shortly after the phone call with Dr. Gala, Supak went to the Providence
    Regional Medical Center emergency room. The diagnoses were terminal ileitis,6
    free abdominal air, and severe sepsis.
    Early the next morning, March 23, an X-ray was done on Supak’s
    abdomen, revealing that she had a perforated bowel. Emergency surgery was
    performed, during which it was discovered that the perforation had allowed feces
    to enter her abdominal cavity. A surgeon operated on Supak to repair the
    perforation. During surgery, a virulent infection was also observed in the
    abdominal cavity. In a postmortem culture of the surgical specimen, the infection
    was identified as extrapulmonary tuberculosis of the abdomen.
    6 Terminal ileitis is the inflammation of the “terminal” or last end of the ileum or small
    intestine before it leads into the large intestine.
    8
    No. 85208-6-I/9
    Supak never awoke from the surgery. In the early morning hours of March
    24, she died from a cardiac arrest, septic shock, organ failure, and a perforated
    bowel caused by intestinal tuberculosis.7
    None of the doctors that Supak consulted during this three-month period
    (or before then) suspected that Supak had tuberculosis in addition to lupus. It
    was only during surgery that an infection was discovered and it was only in
    postmortem review that physicians recognized that tuberculosis had contributed
    to her death.
    In 2021, Stephen Beard filed a complaint against the Everett Clinic and Dr.
    Gala, alleging that the defendants failed to meet the standard of care expected of
    reasonable prudent health care providers similarly situated when Supak sought
    treatment beginning in January 2018.
    On February 27, 2023 and before the commencement of trial, Beard’s
    attorney submitted a memorandum opposing the issuance of the exercise of
    judgment and no guarantee-poor result jury instructions.
    The trial commenced on March 6, 2023. Beard’s theory of the case was
    that Dr. Gala had not taken necessary actions, had not ordered essential tests,
    and had not made urgent specialist referrals that could have saved Supak’s life.
    Beard contended that Dr. Gala failed to take these steps despite the warning
    7 During trial, expert witness Dr. Marcel Curlin explained that there are different types of
    tuberculosis. The most common type is pulmonary, which is found inside the lungs and occurs in
    approximately 85 percent of tuberculosis cases in the United States. Another type is
    extrapulmonary, which is when tuberculosis is found outside the lungs. As will be later discussed,
    Dr. Curlin also testified that Supak’s combination of symptoms was “rare-upon-rare.”
    9
    No. 85208-6-I/10
    signs of infection, thereby falling below the applicable standard of care and
    breaching her duty as a rheumatologist.
    Dr. Gala’s theory of the case was that Supak’s condition was very rare
    and that the extrapulmonary intestinal tuberculosis and consequent bowel
    perforation were hidden and undetectable, despite Dr. Gala’s careful multi-step
    approach to Supak’s ongoing treatment. The defense asserted that Supak’s
    death was unpredictable and tragic, but that Dr. Gala could not have detected
    Supak’s rare condition, given the symptoms presented and test results available
    at the time. The defense further argued that Dr. Gala could not have reasonably
    suspected intestinal tuberculosis, which is an uncommon disease in the United
    States, and that she selected a course of treatment based on what she knew
    about Supak’s medical condition, symptoms, and history.
    During trial, rheumatologist Dr. Paul Brown, called by Beard, testified that
    Dr. Gala’s treatment fell below the standard of care when she did not order an X-
    ray or CT scan on March 1 or March 2 and when Dr. Gala did not refer Supak to
    an infectious disease specialist. Dr. Brown testified that Dr. Gala’s treatment fell
    below the standard of care when she doubled Supak’s prednisone dosage and
    did not then call her daily to monitor her fever and other symptoms.
    Dr. Elizabeth Volkmann, a rheumatologist called by Dr. Gala, testified that
    Dr. Gala had met the standard of care for a rheumatologist at each step of her
    treatment of Supak. Dr. Volkmann testified that any rheumatologist who is caring
    for a patient with a lupus flare is always concerned about infection and would
    start an evaluation by asking questions about the patient’s present symptoms.
    10
    No. 85208-6-I/11
    For example, Dr. Volkmann said, if the patient had a cough, physicians looked for
    an infection in the lungs, but if the patient’s pain occurred during urination,
    physicians looked for an infection in the urine. Dr. Volkmann testified that “a
    really important principle that most rheumatologists know well” is to treat a
    patient like Supak for a potential lupus flare and infection at the same time. Dr.
    Volkmann explained:
    If you just focus on the lupus flare and don’t give antibiotics, you’d
    be not treating the infection adequately. But if you only give the
    antibiotics and ignore the lupus flare, the patient’s own immune
    system won’t be able to function to fight infection.
    During her testimony, Dr. Volkmann discussed the records of Supak’s
    numerous visits with Dr. Gala from January to March 2018. Dr. Volkmann
    explained why Dr. Gala would have chosen to increase prednisone doses,
    prescribe antibiotics, add methotrexate, stop methotrexate, aspirate and analyze
    shoulder joint fluid, order tests, and refer patients to specialists or decide not to
    do so.
    Dr. Volkmann explained the importance of blood and urine culture and
    stool pathogen tests to detect infection in lupus patients and why Dr. Gala
    ordered the tests. Dr. Volkmann explained that Dr. Gala referred Supak to the
    gastroenterologist in order to determine whether there were any liver
    abnormalities. Dr. Volkmann explained that Dr. Gala decided not to urgently
    refer Supak to an infectious disease specialist because Supak had only a low-
    grade fever with no other signs of infection.
    During cross-examination, Dr. Volkmann explained that Dr. Gala may not
    have ordered a chest X-ray on March 1 in order to reduce Supak’s exposure to
    11
    No. 85208-6-I/12
    unnecessary radiation, especially since Supak did not have any respiratory
    symptoms. During further redirect examination, Dr. Volkmann testified that Dr.
    Gala had adequately investigated potential infections at all times in her care of
    Supak.
    Dr. Volkmann testified in detail to the steps Dr. Gala took when treating
    Supak on March 1 and March 2, in regard to Supak’s three main medical
    concerns: worsening arthritis pain, abnormalities in her liver tests, and fevers
    suggesting infection that could also be due to lupus flares. For each decision
    and action, Dr. Volkmann testified as to why she believed Dr. Gala met the
    standard of care.
    Dr. Gala testified that she had been treating Supak for a decade and that
    she was familiar with Supak’s medical history and her response to medications.
    With this information, Dr. Gala decided to increase Supak’s prednisone dosage.
    It was reasonable. Mrs. Beard had an active arthritis
    disease. In order to quickly treat and control the inflammation that
    was involving multiple joints, we needed an agent that would
    improve the inflammation quickly, and that is prednisone. Other
    treatments that we have would take a long time before we could get
    control of the arthritis.
    Dr. Gala testified to her reasons for deciding not to order a repeat chest X-
    ray on March 1:
    A      [Supak] received antibiotics in the February 5th visit.
    She responded, felt well. When called by the walk-in clinic, she felt
    well enough to travel, and so at that March 1st, 2018 visit, I felt that
    infection had resolved with the treatment instituted by the walk-in
    clinic.
    Q      With all of that information in mind, did you feel that
    repeat chest imaging, whether that’s a chest X-ray or a CT, did you
    think that a repeat imaging study of the chest was indicated on
    March 1st?
    12
    No. 85208-6-I/13
    A      I didn’t think it was indicated, as she reported no
    cough, no shortness of breath. Her lungs were clear on
    auscultation, or clear on exam.
    Q      Did that mean in any way that you weren’t interested
    in pursuing a workup for infection?
    A      No.
    Q      All right. Did you, in fact, feel that a workup for
    infection for Mrs. Beard was indicated on March 1st?
    A      I did.
    Dr. Gala then testified that she made the decision to order blood and urine
    culture tests to identify possible infection, but that she also had to treat Supak’s
    lupus flares and determine the cause of her elevated liver function tests:
    A        On March 1st, I was thinking of the possibility it was
    related with her lupus flare but also concerned of the possibility of
    infection.
    ....
    A        So I was reassured by her history of no chest pain or
    shortness of breath or cough. I was also reassured on examination
    of her lungs and her chest. Her exam was consistent with an
    arthritis flare, but I did feel, with the one day of fever, that I needed
    to check blood and urine cultures for evaluation.
    ....
    Q        There was a third thing going on with Mrs. Beard that
    day. We know she had a return of lupus flares. We know she had
    a fever, but she also had some lab work that you noted to be
    elevated; is that right?
    A        Yes.
    Q        And what was that lab work that drew your attention?
    A        Her liver function tests remain elevated.
    Dr. Gala testified as to why she chose to suspend Supak’s course of
    methotrexate and what information she hoped to gain after the gastroenterology
    referral. Dr. Gala testified that she did not feel it necessary to alert Dr. King to
    the suspected infection, given Dr. King’s gastroenterological expertise. Dr. Gala
    also testified that she did not call in an infectious disease specialist because
    Supak’s cultures had been negative for infection up to that date.
    13
    No. 85208-6-I/14
    During trial, expert witnesses were also asked to testify about why the
    physicians treating Supak might not have identified her tuberculosis or,
    conversely, why they should have detected it before her death.
    Radiologist Dr. Scott Williams was called by Beard. Dr. Williams testified
    that if the CT scan had been done in February or early March instead of late
    March, it was likely that the tuberculosis would have been detected at those
    earlier dates, because tuberculosis takes months to develop and is “insidious.”
    Dr. Williams explained that tuberculosis is the “great masquerader” because it
    can look like a lot of different things, both in the lungs and in the abdomen.
    Dr. Marcel Curlin, an infectious disease specialist, was called by the
    defense. During direct examination, Dr. Curlin testified:
    A      . . . Mrs. Beard had a really unusual, uncommon, and
    very unfortunate combination of medical conditions, and it really
    wouldn’t have mattered if she had an infectious disease
    consultation with someone like me earlier in her course.
    Q      And when you say “it really wouldn’t have mattered,”
    is the ultimate question whether earlier intervention would have
    made a difference in Mrs. Beard’s outcome?
    A      It would not have changed the outcome.
    Dr. Curlin stated that tuberculosis was “relatively uncommon” in the United
    States. Dr. Curlin also testified that it was uncommon for a patient to develop a
    bowel perforation from intestinal tuberculosis. Dr. Curlin testified that Supak had
    likely suffered the perforation after her presentation to the emergency department
    on March 22.
    Dr. Curlin further testified that Supak’s underlying medical conditions
    along with intestinal tuberculosis reflected “rare-upon-rare” conditions.
    14
    No. 85208-6-I/15
    After the close of the evidence, the attorneys and the court discussed the
    proposed jury instructions. Beard objected to issuing both the exercise of
    judgment instruction and the no guarantee-poor result instruction. Beard argued
    that the two instructions were discretionary and not mandatory. Beard contended
    that the instructions were slanted toward Dr. Gala’s theory of the case and that
    they constituted a comment on the evidence.
    Dr. Gala’s attorney responded that the instructions “fit squarely within the
    claims and the defenses of this case.” The defense further noted that
    [t]his entire case has been argued as being one where a doctor,
    which is the correct statement of the law, is not in a position to
    guarantee any result, and that it is important for the jury to
    understand the law, in fact, says as much.
    Dr. Gala’s attorney argued that the challenged instructions were further justified
    because Dr. Gala had made choices among competing therapeutic treatments
    and diagnoses and had considered risks and benefits of each. Therefore, it was
    asserted, issuing the instructions together was appropriate.
    Beard’s attorney argued that there was insufficient evidence that Dr. Gala
    had made a choice among competing therapeutic options. Referring to the
    Needham v. Dreyer8 decision, he also argued that it was not enough for a doctor
    to say in court that there were options and that those options were considered,
    but that “[t]here has to be more. Just practicing medicine isn’t enough to show
    there was a choice.”
    8 11 Wn. App. 2d 479, 
    454 P.3d 136
     (2019).
    15
    No. 85208-6-I/16
    The trial judge decided that, based on the evidence presented, and
    because the Supreme Court decision in Fergen v. Sestero9 approved of both
    challenged instructions and approved of issuing them together, the challenged
    instructions would be issued.
    The court then instructed the jury. The instructions included, in pertinent
    part, the following:
    The plaintiff has the burden of proving each of the following
    propositions:
    First, that the defendant Dr. Shaila Gala failed to follow the
    applicable standard of care and was therefore negligent;
    Second, that Supak Beard died; and
    Third, that the negligence of the defendant Dr. Shaila Gala
    was a proximate cause of the harms and losses alleged by the
    plaintiff.
    If you find from your consideration of all of the evidence that
    each of these propositions has been proved, your verdict should be
    for the plaintiff. On the other hand, if any of these propositions has
    not been proved, your verdict should be for the defendants.
    Jury Instruction 6.
    A health care professional owes to the patient a duty to
    comply with the standard of care for one of the profession or class
    to which he or she belongs.
    Dr. Shaila Gala, who is a rheumatologist, has a duty to
    exercise the degree of skill, care, and learning expected of a
    reasonably prudent rheumatologist in the State of Washington
    acting in the same or similar circumstances at the time of the care
    or treatment in question.
    Failure to exercise such skill, care, and learning constitutes a
    breach of the standard of care and is negligence.
    The degree of care actually practiced by members of the
    medical profession is evidence of what is reasonably prudent.
    However, this evidence alone is not conclusive on the issue and
    should be considered by you along with any other evidence bearing
    on the question.
    Jury Instruction 7.
    9 
    182 Wn.2d 794
    , 
    346 P.3d 708
     (2015).
    16
    No. 85208-6-I/17
    A physician does not guarantee the results of his or her care
    and treatment. A poor medical result is not, by itself, evidence of
    negligence.
    Jury Instruction 9.
    A physician is not liable for selecting one of two or
    alternative courses of treatment, if, in arriving at the judgment to
    follow the particular course of treatment, the physician exercised
    reasonable care and skill within the standard of care the heath care
    provider was obliged to follow.
    Jury Instruction 12.
    The jury’s verdicts were in favor of the defendants. Beard now appeals.
    II
    This appeal is centered on various challenges to two jury instructions.
    Thus, we begin by setting forth the legal principles applicable to our review of the
    two challenged instructions.
    “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.” Fergen, 182 Wn.2d
    at 803. “The propriety of a jury instruction is governed by the facts of the
    particular case.” Fergen, 182 Wn.2d at 803.
    Whether to give a certain jury instruction is within a trial court’s discretion
    and therefore is reviewed for abuse of discretion. Fergen, 182 Wn.2d at 802. “In
    reviewing jury instructions, the test is whether the instructions, as given, enabled
    a party to argue its theory of the case.” Koppang v. Hudon, 
    36 Wn. App. 182
    ,
    187, 
    672 P.2d 1279
     (1983). The adequacy of the trial court’s instructions to the
    jury is evaluated by reviewing them as a whole. Petersen v. State, 
    100 Wn.2d 17
    No. 85208-6-I/18
    421, 432, 440, 
    671 P.2d 230
     (1983). “The number and specific language of the
    instructions are matters left to the trial court’s discretion.” Petersen, 
    100 Wn.2d at 440
    .
    Jury instructions are reviewed de novo for claimed errors of law. Anfinson
    v. FedEx Ground Package Sys., Inc., 
    174 Wn.2d 851
    , 860, 
    281 P.3d 289
     (2012).
    “An erroneous instruction is reversible error only if it prejudices a party.”
    Anfinson, 174 Wn.2d at 860. “The party challenging an instruction bears the
    burden of establishing prejudice.” Fergen, 182 Wn.2d at 803.
    “If the instruction contains a clear misstatement of law, prejudice is
    presumed and is grounds for reversal unless it can be shown that the error was
    harmless.” Fergen, 182 Wn.2d at 803; Anfinson, 174 Wn.2d at 860.
    III
    Beard first challenges the trial court’s issuance of the no guarantee-poor
    result jury instruction. He does so on three bases, claiming that: (1) it misstated
    the law, (2) it constituted an improper judicial comment on the evidence, and (3)
    in conjunction with the other challenged instruction, it unfairly emphasized the
    defense case. Beard’s contentions are incorrect.
    A
    Beard initially argues that the no guarantee-poor result instruction was a
    misstatement of the law. This is so, he contends, because jurors were therein
    instructed that the poor medical result of Dr. Gala’s alleged negligence (Supak’s
    death) “could not be considered in determining whether Gala caused the poor
    18
    No. 85208-6-I/19
    medical result.”10 Beard divines this limitation by reasoning that a poor medical
    result is an injury and an injury is one of the required elements that a claimant
    must establish to prove negligence.
    To resolve this claim of error, we focus on the jury instructions given by
    the trial court as a whole. Once we do so, it is apparent that the claim of error is
    without merit.
    Here, the trial court instructed the jury:
    A physician does not guarantee the results of his or her care
    and treatment. A poor medical result is not, by itself, evidence of
    negligence.
    Jury Instruction 9.
    The wording of this instruction followed that of Washington Pattern Jury
    Instruction 105.07:
    A [fill in type of health care provider] does not guarantee the
    results of his or her care and treatment.
    A poor medical result is not, by itself, evidence of negligence.
    6 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 105.07
    (7th ed. 2019) (WPI).
    In discussing this pattern instruction, our Supreme Court has explained
    that:
    The comment thereto states that the giving of a ‘no guarantee/poor
    result’ instruction does not constitute error if it is used to
    supplement a proper standard of care instruction. 6 Wash. Prac.,
    WPI, at 523 (1989)[11] (citing Watson v. Hockett, 
    107 Wn.2d 158
    ,
    166-67, 
    727 P.2d 669
     (1986)). Whether or not to give this type of
    instruction is a matter within the trial court’s discretion.
    10 Br. of Appellant at 29.
    11 Christensen v. Munsen, 
    123 Wn.2d 234
    , 248, 
    867 P.2d 626
     (1994) cites to the WPI in
    the 1989 edition of Washington Practice. In the current edition, the no guarantee-poor result
    instruction remains as WPI 105.07.
    19
    No. 85208-6-I/20
    Christensen v. Munsen, 
    123 Wn.2d 234
    , 248, 
    867 P.2d 626
     (1994).
    Beard’s claim that jury instruction 9 misstated the law reveals a lack of
    appreciation of the dissonance between principles taught in a law school torts
    class and principles applied to a superior court trial. As a result of this
    disconnect, Beard earnestly—albeit incorrectly—assigns error to a perfectly
    correct jury instruction.
    In law school we are taught—and the law generally holds—that there are
    four elements to the tort of negligence: duty, breach of duty, proximate cause,
    and resulting harm. Mancini v. City of Tacoma, 
    196 Wn.2d 864
    , 879, 
    479 P.3d 656
     (2021); see also W. PAGE KEETON, ET AL., PROSSER AND KEETON ON TORTS
    164-65 (5th ed. 1984). However, as previously established, jury instructions are
    read as a whole, meaning that they are read in relation to one another. In fact,
    jurors are instructed to accept the law from the court regardless of what they
    might think the law is or ought to be. Indeed, the jurors herein were instructed on
    this very premise. See Jury Instruction 1. (“It also is your duty to accept the law
    as I explain it to you, regardless of what you personally believe the law is or what
    you personally think it should be. You must apply the law from my instructions to
    the facts that you decide have been proved.”)
    Thus, whether the challenged instruction correctly states the law is
    determined by the content of the jury instructions as a whole—not by the
    teachings in a torts textbook.
    Here, the jury was not instructed that there were four elements of
    negligence. Instead, the jury was instructed as follows.
    20
    No. 85208-6-I/21
    First, the court set forth the matters that plaintiff Beard had the burden of
    proving to prevail on his claim of health care negligence.
    The plaintiff has the burden of proving each of the following
    propositions:
    First, that the defendant Dr. Shaila Gala failed to follow the
    applicable standard of care and was therefore negligent;
    Second, that Supak Beard died; and
    Third, that the negligence of the defendant Dr. Shaila Gala
    was a proximate cause of the harms and losses alleged by the
    plaintiff.
    If you find from your consideration of all of the evidence that
    each of these propositions has been proved, your verdict should be
    for the plaintiff. On the other hand, if any of these propositions has
    not been proved, your verdict should be for the defendants.
    Jury Instruction 6 (emphasis added).
    The jury was next instructed that
    [a] health care professional owes to the patient a duty to
    comply with the standard of care for one of the profession or class
    to which he or she belongs.
    Dr. Shaila Gala, who is a rheumatologist, has a duty to
    exercise the degree of skill, care, and learning expected of a
    reasonably prudent rheumatologist in the State of Washington
    acting in the same or similar circumstances at the time of the care
    or treatment in question.
    Failure to exercise such skill, care, and learning constitutes a
    breach of the standard of care and is negligence.
    The degree of care actually practiced by members of the
    medical profession is evidence of what is reasonably prudent.
    However, this evidence alone is not conclusive on the issue and
    should be considered by you along with any other evidence bearing
    on the question.
    Jury Instruction 7 (emphasis added).12
    12 This instruction aligns with RCW 7.70.030 which provides: “No award shall be made in
    any action or arbitration for damages for injury . . . unless the plaintiff establishes one or more of
    the following propositions: (1) That injury resulted from the failure of a health care provider to
    follow the accepted standard of care.”
    21
    No. 85208-6-I/22
    The jury was then instructed that
    A physician does not guarantee the results of his or her care
    and treatment. A poor medical result is not, by itself, evidence of
    negligence.
    Jury Instruction 9.
    When the instructions are viewed as a whole, it is clear that jury instruction
    9 was a correct statement of the law. As explained to the jury by the judge in jury
    instructions 6 and 7, negligence is established by proving the existence of a duty
    and a breach of that duty. Proof of “proximate cause” and “harms and losses”
    were set forth as concerns separate from proof of negligence in jury instructions
    6 and 7.
    Whether to issue a no guarantee-poor result jury instruction is a matter
    within the discretion of the trial court. The instruction is appropriately given when
    it is used to supplement a proper standard of care instruction and it serves the
    purpose of reminding jurors that medicine is an inexact science in which the
    desired results cannot be guaranteed. Watson, 
    107 Wn.2d at 167
    .
    That a bad result “by itself” does not establish negligence is a correct
    statement of the law, as the law was given to the jury by the trial judge. It was
    within the trial court’s discretion to give jury instruction 9 as a supplement to the
    standard of care instruction given. Beard’s claim of error fails.
    B
    Beard next asserts that the issuance of the no guarantee-poor result
    instruction constituted a prohibited judicial comment on the evidence. We
    disagree.
    22
    No. 85208-6-I/23
    “Judges shall not charge juries with respect to matters of fact, nor
    comment thereon, but shall declare the law.” WASH. CONST. art. IV, § 16. An
    improper judicial comment on the evidence is “‘one which conveys to the jury a
    judge’s personal attitudes toward the merits of the case or allows the jury to infer
    from what the judge said or did not say that the judge personally believed or
    disbelieved the particular testimony in question.’” Adcox v. Children’s Orthopedic
    Hosp. & Med. Ctr., 
    123 Wn.2d 15
    , 38, 
    864 P.2d 921
     (1993) (quoting Hamilton v.
    Dep’t of Lab. & Indus., 
    111 Wn.2d 569
    , 571, 
    761 P.2d 618
     (1988)).
    Judges do not comment on the evidence merely by properly instructing a
    jury on the law. “An instruction which does no more than accurately state the law
    pertaining to an issue does not constitute an impermissible comment on the
    evidence by the trial judge under Const. art. 4, § 16.” Christensen, 
    123 Wn.2d at
    249 (citing Hamilton, 
    111 Wn.2d at 571
    ).
    Our Supreme Court has previously held that a virtually identical no
    guarantee-poor result instruction did not constitute an improper comment on the
    evidence. Christensen, 
    123 Wn.2d at 249
    . We reach the same conclusion.
    C
    Beard’s final objection to jury instruction 9 is that it, in conjunction with jury
    instruction 12 (the exercise of judgment instruction), unfairly emphasized the
    defense case.
    We will address this claim of error in Section IV, in which we examine
    Beard’s various objections to jury instruction 12.
    23
    No. 85208-6-I/24
    IV
    Beard next challenges the trial court’s issuance of the exercise of
    judgment jury instruction. He does so on three bases, claiming that: (1) the
    instruction was not supported by sufficient evidence, (2) the instruction
    constituted an improper judicial comment on the evidence, and (3) in conjunction
    with the other challenged instruction, it unfairly emphasized the defense case.
    Beard’s contentions are incorrect.
    A
    As to the sufficiency of the evidence challenge, our analysis of this issue
    requires us to discuss several predicate considerations. We do so in the
    sections that follow.
    1
    The challenged jury instruction at issue was worded as follows:
    A physician is not liable for selecting one of two or
    alternative courses of treatment, if, in arriving at the judgment to
    follow the particular course of treatment, the physician exercised
    reasonable care and skill within the standard of care the health care
    provider was obliged to follow.
    Jury Instruction 12. This followed the wording of Washington Pattern Jury
    Instruction 105.08.
    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.
    WPI 105.08.
    24
    No. 85208-6-I/25
    Beard’s perception of the propriety of this instruction is colored by his
    perception of it as being unique in the law. This view is expressed in his briefing
    on appeal. In discussing the instruction at issue along with the other challenged
    instruction, Beard contends that
    [t]hese instructions do not exist in other negligence contexts
    because they are palpably unfair to come from the judge. An
    automobile driver who hits a pedestrian in a crosswalk is not
    entitled to a jury instruction that drivers do not guarantee the results
    of their driving. Further, the same driver is not entitled to an
    instruction about the exercise of judgment while driving . . . .
    Even in other contexts involving specialized duties of care,
    defendants are not entitled to such instructions. . . . A crane
    operator sued for injuries sustained by a workplace mishap does
    not get an instruction that a crane operator is not liable for selecting
    one of two alternative methods of operating the crane if, in selecting
    the method, the operator exercised reasonable care.
    Br. of Appellant at 36-38.
    However, the principles underlying the exercise of judgment instruction
    are not at all unique in the law. To the contrary, a well-recognized legal doctrine
    premised on those same principles is theoretically applicable in any tort case and
    has been applied in countless negligence actions.
    That doctrine, of course, is the emergency doctrine. A discussion of that
    doctrine, and its relationship to the exercise of judgment instruction, follows.
    i
    The emergency doctrine is sufficiently well-established so as to be the
    subject of a pattern jury instruction, which reads as follows:
    A person who is suddenly confronted by an emergency
    through no negligence of his or her own and who is compelled to
    decide instantly how to avoid injury and who makes such a choice
    25
    No. 85208-6-I/26
    as a reasonably careful person placed in such a position might
    make, is not negligent even though it is not the wisest choice.
    WPI 12.02.13
    Our Supreme Court has stated that the evidence necessary
    to invoke the emergency doctrine is confrontation by a sudden peril
    requiring instinctive reaction. Seholm v. Hamilton, 
    69 Wn.2d 604
    ,
    
    419 P.2d 328
     (1966). The rule is applicable only after a person has
    been placed in a position of peril and there is a choice between
    courses of action after the peril has arisen. Sandberg v. Spoelstra,
    
    46 Wn.2d 776
    , 
    285 P.2d 564
     (1955); Restatement (Second) of
    Torts § 296 ([AM. LAW INST.] 1965).
    Zook v. Baier, 
    9 Wn. App. 708
    , 713-14, 
    514 P.2d 923
     (1973) (emphasis added);
    see also Brown v. Spokane County Fire Prot. Dist. No. 1, 
    100 Wn.2d 188
    , 197,
    
    668 P.2d 571
     (1983) (citing Sandberg, 
    46 Wn.2d at 782
    ; Seholm, 
    69 Wn.2d at 609
    ). Indeed, the evidence presented must tend to prove that the circumstance
    in question was one in which the person involved was compelled to make a
    decision between choices—an emergency doctrine instruction is properly refused
    when there was no alternative course of action available to the person in
    question. Brown, 
    100 Wn.2d at
    197 (citing Zook, 
    9 Wn. App. at 714
    ). Thus, in
    order for the jury to be instructed on the emergency doctrine, the trial record must
    contain evidence that a person was confronted with an emergency presenting
    that person with a choice between courses of action as well as evidence that the
    person’s choice was consistent with the applicable standard of care. WPI 12.02;
    Brown, 
    100 Wn.2d at 197
    ; Zook, 
    9 Wn. App. at 713-14
    .
    13 Our decisional authority has recognized that “WPI 12.02 adequately informs the jury. It
    correctly states the law, is not misleading, and permits counsel to argue his theory of the case.”
    Szupkay v. Cozzetti, 
    37 Wn. App. 30
    , 35, 
    678 P.2d 358
     (1984) (citing State v. Mark, 
    94 Wn.2d 520
    , 526, 
    618 P.2d 73
     (1980)).
    26
    No. 85208-6-I/27
    Furthermore, “[i]f there is a conflict in the evidence as to the applicability of
    the emergency doctrine, but there is substantial evidence to support it, it is error
    not to submit the theory to the jury.” Szupkay v. Cozzetti, 
    37 Wn. App. 30
    , 34,
    
    678 P.2d 358
     (1984) (citing Bell v. Wheeler, 
    14 Wn. App. 4
    , 
    538 P.2d 857
    (1975)); see also Tuttle v. Allstate Ins. Co., 
    134 Wn. App. 120
    , 131, 
    138 P.3d 1107
     (2006) (“[I]f the evidence is conflicting as to whether the doctrine applies,
    the court should give the instruction.”).
    Notably, as recognized by our Supreme Court, this instruction does not
    alter the underlying standard of care: “‘[t]he so-called emergency rule is but a
    special application of the general standard of reasonable care.’” Sandberg, 
    46 Wn.2d at 783
     (quoting Trudeau v. Sina Contracting Co., 
    241 Minn. 79
    , 84, 
    62 N.W.2d 492
     (1954) (citing W ILLIAM L. PROSSER, PROSSER ON TORTS § 37 (1st ed.,
    1941); RESTATEMENT (FIRST) OF TORTS § 296 (1934))).
    The purpose of issuing an emergency doctrine instruction is that it
    “‘requires a jury to consider the fact of sudden peril as a circumstance in
    determining the reasonableness of a person’s response thereto.’” Sandberg, 
    46 Wn.2d at 783
     (quoting Trudeau, 
    241 Minn. at
    84 (citing PROSSER, supra, § 37;
    RESTATEMENT OF TORTS § 296)). Indeed, “‘[t]he doctrine excuses an unfortunate
    human choice of action that would be subject to criticism as negligent were it not
    that the party was suddenly faced with a situation which gave him no time to
    reflect upon which choice was the best.’” Brown, 
    100 Wn.2d at 197
     (emphasis
    added) (quoting Zook, 
    9 Wn. App. at 714
    ). Thus, the instruction on the
    emergency doctrine is a reminder that, in the circumstance of an emergency
    27
    No. 85208-6-I/28
    requiring a sudden, instinctive reaction between competing courses of action, a
    person who chooses a less wise course of action from among the available
    courses of action is not liable for making that less wise choice, so long as that
    choice was consistent with the applicable standard of care.
    ii
    The pattern instruction on a health care provider’s exercise of judgment
    reads as follows:
    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.
    WPI 105.08.14
    In determining whether to issue this instruction to the jury, the trial court
    should consider that
    [i]n the first place, as its terms make clear, it applies only where
    there is evidence that in arriving at a judgment, “the physician or
    surgeon exercised reasonable care and skill, within the standard of
    care he [or she] was obliged to follow.” Secondly, its application
    will ordinarily be limited to situations where the doctor is confronted
    with a choice among competing therapeutic techniques or among
    medical diagnoses.
    Watson, 
    107 Wn.2d at 165
    .
    14 Our Supreme Court has reaffirmed “that this court has consistently approved of the
    exercise of judgment jury instruction in appropriate medical malpractice cases.” Fergen, 182
    Wn.2d at 803-04 (citing Christensen, 
    123 Wn.2d at 238
    ; Watson, 
    107 Wn.2d at 164-65
    ; Miller v.
    Kennedy, 
    91 Wn.2d 155
    , 160, 
    588 P.2d 734
     (1978); Miller v. Kennedy, 
    85 Wn.2d 151
    , 151-52,
    
    530 P.2d 334
     (1975); Miller v. Kennedy, 
    11 Wn. App. 272
    , 280, 
    522 P.2d 852
     (1974)).
    Furthermore, the exercise of judgment instruction allows a party to argue their theory of
    the case to the jury. See Fergen, 182 Wn.2d at 810 (discussing in the context of a challenge to
    the exercise of judgment instruction that “instructions that inform the jury of a party’s theory of the
    case are not necessarily harmful or incorrect”).
    28
    No. 85208-6-I/29
    Furthermore, our Supreme Court has held that issuing the exercise of
    judgment instruction is proper when the record contains conflicting medical
    expert testimony as to whether the physician defendant’s choice of treatment
    was consistent with the standard of care. Christensen, 
    123 Wn.2d at 249
     (trial
    court did not err by giving “error in judgment” instruction when trial record
    contained evidence of three medical experts presenting conflicting testimony as
    to the proper choice between prescription medicine regimens).
    In addition, as recognized by the Supreme Court in Watson, the exercise
    of judgment instruction does not alter the applicable standard of care: in
    discussing what was then referenced as the “error in judgment” instruction
    alongside “similar supplemental or clarifying instructions,” our Supreme Court
    stated that such instructions “‘supplement’ the standard of care; while they may
    clarify it, they do not change it.” 
    107 Wn.2d at
    166-67 (citing Miller v. Kennedy,
    
    91 Wn.2d 155
    , 159, 
    588 P.2d 734
     (1978)).15
    Therefore, the purpose for giving such an instruction—and the reason for
    clarification—is that it provides “‘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 treatment.’” Watson, 
    107 Wn.2d at 167
     (quoting JIM M. PERDUE & READ
    KHOURY, THE LAW OF TEXAS MEDICAL MALPRACTICE (2d ed.), ch. 2, reprinted in 22
    15 See also Fergen, 182 Wn.2d at 805 (the exercise of judgment instruction, in
    appropriate circumstances, “may be given to supplement a general instruction on the proper
    standard of care” (citing Christensen, 
    123 Wn.2d at 238
    ; Watson, 
    107 Wn.2d at 165
    ; Miller, 
    11 Wn. App. at 280
    )).
    29
    No. 85208-6-I/30
    HOUS. L. REV. 47, 60 (1985)).16 Indeed, as stated by our Supreme Court more
    than one hundred years ago, “‘[i]n cases like this the court and jury do not
    undertake to determine what is the best mode of treatment or to decide questions
    of medical science upon which surgeons differ among themselves.’” Dishman v.
    N. Pac. Beneficial Ass’n, 
    96 Wash. 182
    , 203-04, 
    164 P. 943
     (1917) (emphasis
    added) (internal quotation marks omitted) (quoting Staloch v. Holm, 
    100 Minn. 276
    , 283, 
    111 N. W. 264
     (1907)).
    Accordingly, the instruction on the exercise of judgment principle reminds
    the jury that, in the circumstance of the treatment of a patient for an uncertain
    condition that requires a choice between competing courses of treatment (or
    diagnoses), a physician who chooses a less wise course of action from among
    the available courses of action (both or all of which were consistent with the
    standard of care) is not liable for making that less wise choice, so long as the
    choice adopted was consistent with the standard of care.
    iii
    Given all of this, Beard’s broad contention as to the uniqueness of the
    exercise of judgment instruction does not survive scrutiny. Indeed, the legal
    principles underlying the emergency doctrine are comparable to those underlying
    the exercise of judgment instruction. As an initial matter, they are both intended
    to supplement, that is, to clarify, their respective general instruction on the
    standard of care. Such clarification of that standard is useful in both instances
    16 See also Fergen, 182 Wn.2d at 804 (purpose of the exercise of judgment instruction is
    “to remind juries of the fallibility of medicine” (citing Watson, 
    107 Wn.2d at 167
    )).
    30
    No. 85208-6-I/31
    because the respective instructions remind the jury that the individual in question
    was confronted by a circumstance calling for action from among competing,
    reasonable courses of proceeding. And the respective instructions remind the
    jury that the individual at issue in such a circumstance is not liable for making a
    less wise choice from among the available reasonable courses of action, so long
    as the choice made was consistent with the applicable standard of care.
    Furthermore, in order to be issued to the jury at trial, each instruction
    requires that the trial record contain evidence that the person at issue was
    confronted with a choice between competing courses of action and evidence that
    the choice made between those available courses was consistent with the
    standard of care. In addition, with regard to both instructions, when there is
    conflicting testimony as to whether the instruction should be issued, it is
    appropriate for the trial court to do so.
    As a final note, a decision from another jurisdiction—a decision that our
    Supreme Court described as “well-considered”—is instructive. Dishman, 
    96 Wash. at
    203 (citing Staloch, 
    100 Minn. at 283
    ). In that decision, the Minnesota
    Supreme Court recognized with regard to what it termed the “error of judgment”
    principle:
    One reasonable justification for this exception in many cases is the
    elementary principle that when a man acts according to his best
    judgment in an emergency but fails to act judiciously, he is not
    chargeable with negligence. The act or omission, if faulty, may be
    called a mistake, but not carelessness. Physicians in the nature of
    things are sought for and must act in emergencies, and if a surgeon
    waits too long before undertaking a necessary amputation, he must
    be held to have known the probable consequences of such delay,
    31
    No. 85208-6-I/32
    and may be held liable for the resulting damage.
    Staloch, 
    100 Minn. at 282
     (emphasis added) (citation omitted).
    Thus, in light of the ample similarities between the instruction on the
    exercise of judgment and the instruction on the emergency doctrine, it cannot be
    said that the exercise of judgment instruction is unique in the law. Rather, it
    appears to have its origins in the elementary principles of law set forth in the
    emergency doctrine. Beard’s characterization of the exercise of judgment
    instruction as a unique exception benefiting health care providers does not bear
    out.
    2
    Another predicate of Beard’s evidentiary sufficiency contention is that the
    exercise of judgment instruction requires proof that a physician’s reasoning
    underlying the physician’s choice of treatment or diagnoses was, as to every data
    point or presence or absence of symptoms, consistent with the standard of care.
    This is so, according to Beard, because
    [b]y its plain language, the Exercise of Judgment Instruction
    requires a physician to “exercise reasonable care and skill within
    the standard of care” when “arriving at the judgment to follow the
    particular course of treatment.” This means that not only must the
    end choice of course of treatment meet the standard of care, but
    also the reasoning behind the physician’s choice must meet the
    standard of care.
    Br. of Appellant at 18 (emphasis added).
    Beard’s contention is that the exercise of judgment instruction must not be
    given in the absence of testimony that—at each step along the way—the
    physician’s thought process was consistent with the standard of care. In this
    32
    No. 85208-6-I/33
    way, Beard argues, physician liability depends on proof of what the physician
    thought, rather than on what the physician did or failed to do. At bottom, Beard
    avers that a physician who treated a patient consistent with the standard of care
    and chose from among two or more treatment options where each approach
    would have been consistent with the standard of care could nevertheless be
    found liable by a jury that was persuaded that the chosen treatment option was
    not the wisest choice.17 This is not the law.
    i
    The exercise of judgment instruction has its origins in the common law of
    our state, and was variously described as a physician’s “honest mistake” or “error
    of judgment,” and when the underlying “mistake” or “judgment” was the
    physician’s choice between diagnoses or methods of treatment. For instance, in
    1917, our Supreme Court stated that
    [t]his court has recognized the law to be that a physician is
    not an insurer of a cure in cases of affliction under his care for
    treatment, and that he is not to be held liable as for negligence or
    malpractice for mere failure to cure, or for bad results, because of
    his choosing one of two or more methods of treatment, when such
    choosing is an exercise of honest judgment on his part and the
    method so chosen is one recognized by the medical profession as
    a proper method in the particular case, though it might not meet the
    unanimous approval of the medical profession.
    Dishman, 
    96 Wash. at 187
    .
    The court recognized that the applicable law “has been thoroughly settled
    by the decisions of this court” and that
    17 This, after all, is the result sought to be avoided by the exercise of judgment instruction.
    33
    No. 85208-6-I/34
    “[t]he principal question here is whether a physician is, as a matter
    of law, liable for a wrong diagnosis and ensuing treatment based
    thereon, even where there may be an honest difference of opinion
    among members of the medical profession as to the diagnosis, if
    the diagnostician proceeded with due care, skill and diligence in
    treating the patient. . . .
    It is now well settled that a physician is entitled to practice
    his profession, possessing the requisite qualifications, and applying
    his skill and judgment with due care, and is not ordinarily liable for
    damages consequent upon an honest mistake or an error of
    judgment in making a diagnosis, in prescribing treatment, or in
    determining upon an operation, where there is reasonable doubt as
    to the nature of the physical conditions involved, or as to what
    should have been done in accordance with recognized authority
    and good current practice. 30 Cyc. 1578; Merriam v. Hamilton, 
    64 Or. 476
    , 
    130 Pac. 406
    [ (1913)]; Wells v. Ferry-Baker Lum. Co., 
    57 Wash. 658
    , 
    107 Pac. 869
    , 29 L. R. A. (N. S.) 426[ (1910)]; Coombs
    v. James, 
    82 Wash. 403
    , 
    144 Pac. 536
    [ (1914)]; Lorenz v. Booth, s
    Dishman, 
    96 Wash. at 201-02
     (emphasis added) (quoting Just v. Littlefield, 
    87 Wash. 299
    , 303, 
    151 P. 780
     (1915)).
    A year later, our Supreme Court held that its prior decisions,
    say that a physician cannot be held as for malpractice when no
    more is shown than a difference of opinion among experts as to
    whether or not there was an error of judgment in adopting the
    method of treatment which was adopted. As said in the Lorenz
    case . . . , when there is more than one recognized method of
    treatment for a particular character of case, “the attending physician
    is not liable for an honest mistake of judgment in his selection of the
    method of treatment.”
    But there is an obvious distinction between a claim of
    negligence in the choice of methods of treatment and a charge of
    negligence in the actual performance of the work or treatment after
    such choice is made.
    Swanson v. Hood, 
    99 Wash. 506
    , 512, 
    170 P. 135
     (1918) (emphasis added)
    (quoting Lorenz, 84 Wash. at 555; citing Dahl v. Wagner, 
    87 Wash. 492
    , 
    151 P. 1079
     (1915)).
    34
    No. 85208-6-I/35
    Fifty years later, in Dinner v. Thorp, 
    54 Wn.2d 90
    , 
    338 P.2d 137
     (1959),
    our Supreme Court considered an instruction that read as follows:
    “A physician is not liable for damages consequent upon an
    honest mistake or an error in judgment in making a diagnosis or in
    determining upon a course of procedure where there is
    reasonable doubt as to the nature of the physical conditions
    involved. If a physician brings to his patient care, skill, and
    knowledge he is not liable to the patient for damages resulting from
    his honest mistakes or a bona fide error of judgment. The law
    requires a physician to base any professional decision he may
    make on skill and careful study and consideration of the case, but
    when the decision depends upon an exercise of judgment the law
    requires only that the judgment be made in good faith.” (Italics
    ours.)
    Thorp, 
    54 Wn.2d at 97-98
     (bolded emphasis added). Although the court held
    that the portion that it had italicized was inappropriate, the court left the
    remainder of the instruction undisturbed.
    In 1974, we approved of a jury instruction that read, “‘[a] physician is not
    liable for an honest error of judgment if, in arriving at that judgment, the physician
    exercised reasonable care and skill, within the standard of care he was obliged to
    follow.’” Miller v. Kennedy, 
    11 Wn. App. 272
    , 280, 
    522 P.2d 852
     (1974)
    (emphasis added), aff’d, 
    85 Wn.2d 151
    , 
    530 P.2d 334
     (1975). Relying on our
    Supreme Court’s decision in Thorp, we stated that “the efforts of a physician may
    be unsuccessful or the exercise of one’s judgment be in error without the
    physician being negligent so long as the doctor acted within the standard of
    care.” Miller, 
    11 Wn. App. at 280
     (emphasis added) (citing Thorp, 
    54 Wn.2d 90
    ).
    Given all of this, our Supreme Court has historically used many different
    phrases to describe a physician’s decision between different courses of action,
    35
    No. 85208-6-I/36
    including “choosing one of two or more methods of treatment,” “the method so
    chosen,” “making a diagnosis,” “prescribing treatment,” “determining upon an
    operation,” “determining upon a course of procedure,” “adopting the method of
    treatment,” “selection of the method of treatment,” and “choice of methods of
    treatment.” For our part, in reliance on our Supreme Court’s precedent, we have
    described a physician’s decision between courses of action as “arriving at that
    judgment” and “the exercise of one’s judgment.”
    The commonality between all of these phrases is that they focus on the
    reasonableness of the physician’s choice between courses of medical treatment
    or diagnoses. These decisions do not, for their part, focus on the
    reasonableness of the physician’s reasoning underlying such choices. Moreover,
    as set forth above, the exercise of judgment instruction has been justified on the
    basis of the underlying subject matter that it regards: the uncertainty inherent in
    the practice of medicine and the need for a physician to take decisive action in
    response to a patient seeking medical treatment. Given that uncertainty and the
    need for medical decision-making, it logically follows that the focus of the inquiry
    would be on the reasonableness of the choice made by the physician, rather than
    on the reasoning underlying such a choice. Thus, according to both our
    Supreme Court and our decisional authority during this time, a physician’s
    judgment regarding treatments or diagnoses was the physician’s choice between
    those treatments or diagnoses.
    36
    No. 85208-6-I/37
    ii
    In 1976, our legislature enacted a bill setting forth a statutory framework
    for medical malpractice actions, replacing, in part, the prior common law regime.
    SUBSTITUTE H. B. 1470, 44th Leg. 2d Ex. Sess. (Wash. 1975-76), ch. 56, § 6 at
    217. In so doing, the legislature established, in pertinent part, that
    [n]o award shall be made in any action or arbitration for damages
    for injury occurring as the result of health care which is provided
    after the effective date of this 1976 amendatory act, unless the
    plaintiff establishes one or more of the following propositions:
    (1) That injury resulted from the failure of a health care
    provider to follow the accepted standard of care.
    SUBSTITUTE H.B. 1470, § 8, at 217-18. The legislature further established that
    [t]he following shall be necessary elements of proof that injury
    resulted from the failure of the health care provider to follow the
    accepted standard of care:
    (1) The health care provider failed to exercise that degree of
    care, skill, and learning expected of a reasonably prudent health
    care provider in the profession or class to which he belongs, in the
    State of Washington, acting in the same or similar circumstances;
    (2) Such failure was a proximate cause of the injury
    complained of.
    SUBSTITUTE H.B. 1470, § 9 at 218.
    Our Supreme Court, in Harris v. Groth, 
    99 Wn.2d 438
    , 451, 
    663 P.2d 113
    (1983), later ruled that the effect of the bill was, in pertinent part, to establish a
    general standard of care for the law of medical malpractice.
    iii
    Then, in 1986, our Supreme Court announced its decision in Watson v.
    Hockett, 
    107 Wn.2d 158
    . There, the court was presented with a challenge to the
    “error of judgment” jury instruction, including whether it was proper in light of the
    37
    No. 85208-6-I/38
    legislature’s recent enactment and, if so, whether the instruction given therein
    properly stated the law.
    As part of its decision, the court rejected the assertion that the legislature’s
    recent enactment impacted certain jury instructions—including the “error in
    judgment” instruction—explaining that, as above, such instructions
    “supplement” the standard of care; while they may clarify it, they do
    not change it. Thus, these instructions can only be given in
    connection with a proper standard of care instruction. . . . The
    purpose served by these instructions, used in the manner and form
    approved herein, is best described by using the words of one
    commentator who, in discussing similar supplemental or clarifying
    instructions, stated that
    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 treatment.
    Watson, 
    107 Wn.2d at 166-67
     (footnote omitted).
    Turning to the merits of the case, the court first provided several general
    observations:
    The law of medical malpractice is for the most part based on
    theories of fault based liability. Absent a contract promising the
    patient a particular result, a doctor will not normally be held liable
    under a fault based system simply because the patient suffered a
    bad result. It must, rather, be shown that the doctor’s conduct fell
    below a level that society considers acceptable.
    Watson, 
    107 Wn.2d at 161
     (footnotes omitted) (citing Brooks v. Herd, 
    144 Wash. 173
    , 176, 
    257 P. 238
     (1927); Derr v. Bonney, 
    38 Wn.2d 678
    , 681, 
    231 P.2d 637
    (1951); Crouch v. Wyckoff, 
    6 Wn.2d 273
    , 282, 
    107 P.2d 339
     (1940); Harris v.
    Groth, 
    99 Wn.2d 438
    , 445, 
    663 P.2d 113
     (1983)). Notably, the court instructed
    that, “[i]n the absence of proof that the doctor failed to exercise the required level
    38
    No. 85208-6-I/39
    of skill and care, the patient suing the doctor should not prevail.” Watson, 
    107 Wn.2d at
    161-62 (citing Versteeg v. Mowery, 
    72 Wn.2d 754
    , 755, 
    435 P.2d 540
    (1967); Richison v. Nunn, 
    57 Wn.2d 1
    , 4-5, 
    340 P.2d 793
     (1959)).18
    Turning to the challenged instruction, the court ruled that
    [t]he “error of judgment” instruction unanimously upheld by
    this court in Miller[ v. Kennedy, 
    91 Wn.2d 155
    , 
    588 P.2d 734
    (1978)], and also proposed by Dr. Hockett in this case, is also
    proper:
    A physician or surgeon is not liable for an honest error
    of judgment if, in arriving at that judgment, the
    physician or surgeon exercised reasonable care and
    skill, within the standard of care he was obliged to
    follow.
    (Italics ours.) Miller, 
    91 Wn.2d at
    160 n.4.[19] Henceforth, however,
    the italicized word “honest” should not be used in those cases
    where it is appropriate to give this instruction. This is because the
    use of the word “honest” imparts an argumentative aspect into the
    instruction which, as discussed above, does not coincide with
    current jury instruction practice. . . .
    The error in judgment principle is accepted in this state as
    Miller makes clear.
    Watson, 
    107 Wn.2d at 164-65
     (bolded emphasis added).
    The court further instructed, with regard to the error in judgment principle,
    that
    [i]n the first place, as its terms make clear, it applies only where
    there is evidence that in arriving at a judgment, “the physician or
    surgeon exercised reasonable care and skill, within the standard of
    care he [or she] was obliged to follow.” Secondly, its application
    will ordinarily be limited to situations where the doctor is confronted
    with a choice among competing therapeutic techniques or among
    medical diagnoses.
    18 “It is well settled that, before a physician or surgeon may be held liable for malpractice,
    he must have done something in the treatment of his patient” inconsistent with the standard of
    care “or he must have neglected to do something required by that standard.” Versteeg, 
    72 Wn.2d at 755
     (quoting Richison, 57 Wn.2d at 4-5).
    19 Our Supreme Court recognized that we “expressly approved this instruction in Miller v.
    Kennedy, supra at 280.” Miller, 
    91 Wn.2d at 160
    .
    39
    No. 85208-6-I/40
    Watson, 
    107 Wn.2d at
    165 (citing Fall v. White, 
    449 N.E.2d 628
    , 635-36 (Ind. Ct.
    App. 1983); Truan v. Smith, 
    578 S.W.2d 73
    , 76 (Tenn. 1979); Spadaccini v.
    Dolan, 
    63 A.D.2d 110
    , 120, 
    407 N.Y.S.2d 840
     (1978)).
    Given all of this, the court in Watson reiterated that which earlier
    Washington state appellate decisional authority had made clear: a physician’s
    judgment regarding treatments or diagnoses is the physician’s choice between
    those treatments or diagnoses. As discussed above, the phrase a physician’s
    “arriving at a judgment” between competing therapeutic techniques or among
    medical diagnoses is merely another way in which Washington state appellate
    courts have referred to the physician’s choice made between such treatments or
    diagnoses.
    iv
    Nevertheless, Beard contends that our Supreme Court’s most recent
    decision in Fergen v. Sestero, 
    182 Wn.2d 794
    , supports his contention that the
    exercise of judgment instruction requires not only proof that a physician’s choice
    of treatment or diagnosis was consistent with the standard of care but also
    requires proof that the physician’s reasoning underlying that choice was
    consistent with that standard. We disagree.
    In Fergen, the court was presented with a challenge as to the propriety of
    a jury instruction based on WPI 105.08, the exercise of judgment instruction,
    previously set forth herein.20 182 Wn.2d at 798-99. The court rejected that
    20 In granting review, the court had consolidated two cases. In one case, a physician had
    examined a lump on a patient’s ankle, diagnosed it as a benign cyst, and did not pursue
    additional diagnostic testing to rule out the possibility of a rare and aggressive form of metastatic
    cancer. Fergen, 182 Wn.2d at 799-800. The physician testified that “‘malignancy’ is ‘a
    40
    No. 85208-6-I/41
    challenge, holding that “[w]e reaffirm that this instruction is supported in
    Washington law and has not been shown to be incorrect or harmful.” Fergen,
    182 Wn.2d at 799.
    In the opening paragraph of its decision, the court stated as follows:
    “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.
    Fergen, 182 Wn.2d at 798 (emphasis added) (alteration in original).
    The court then began its analysis by stating:
    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 appropriate under these facts because the
    physician utilized judgment in performing the biopsy procedure);
    consideration anytime you see a lump,’” but did not specifically testify that he considered whether
    the lump was malignant on the day in question. Fergen, 182 Wn.2d at 800. In the other case
    before the court, multiple physicians had examined a patient’s report of pain and firmness in his
    left leg, each made different diagnoses, but none had performed a leg pressure test to rule out a
    diagnosis of compartment syndrome. Fergen, 182 Wn.2d at 799-801.
    41
    No. 85208-6-I/42
    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.
    Fergen, 182 Wn.2d at 803-04 (alteration in original).21
    Thereafter, the court summarized the holding in Watson as follows:
    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
    .
    Fergen, 182 Wn.2d at 806 (emphasis added).
    Contrary to Beard’s assertion, the court in Fergen was not announcing an
    expansion of the requirements for the exercise of judgment instruction. Rather,
    given its repeated reliance on Watson, the court was dutifully following the
    principles of law set forth in Watson and its antecedent authority. Given that, the
    court’s use of the phrase “formulating his or her judgment”—like “arriving at a
    21 In addition, the court, in reliance on precedent including Watson, rejected once more
    an assertion that the exercise of judgment instruction was preempted by the legislative enactment
    discussed herein, codified at chapter 7.70 RCW. Fergen, 182 Wn.2d at 805 (citing Watson, 
    107 Wn.2d at 166
    ; Gerard v. Sacred Heart Med. Ctr., 
    86 Wn. App. 387
    , 388, 
    937 P.2d 1104
     (1997)).
    42
    No. 85208-6-I/43
    judgment”—is nothing more than another iteration of the same principle
    discussed herein: in choosing between competing methods of treatment or
    diagnoses, each or all of which would be consistent with the standard of care, a
    physician’s judgment is the physician’s choice.
    v
    Lastly, one of our more recent decisions is instructive as to what
    circumstances constitute a physician making a choice between courses of
    treatment or diagnoses. In Needham v. Dreyer, 11 Wn. App. 2d 479, we
    considered a challenge to the trial court’s issuance of the exercise of judgment
    instruction to the jury. There, the physician had treated several of Needham’s
    medical conditions but had not specifically responded to or addressed his
    reported breathing symptoms. Needham, 11 Wn. App. 2d at 484. Needham
    later alleged that the doctor was negligent for failing to consider, treat, and make
    a diagnosis regarding those breathing symptoms. Needham, 11 Wn. App. 2d at
    485-86. Thereafter, the trial court, over Needham’s objection, issued the
    exercise of judgment instruction to the jury in the resulting trial. Needham, 11
    Wn. App. 2d at 486. On appeal, Needham asserted that the court’s issuance of
    that instruction was improper because, by failing to address his breathing
    symptoms, the doctor did not exercise medical judgment as to those symptoms
    and, therefore, did not make a choice between diagnoses or courses of
    treatment. Needham, 11 Wn. App. 2d at 489-90. We agreed.
    In reliance on Fergen, we stated that “the instruction is proper only when
    there is evidence that the physician made a choice among multiple alternative
    43
    No. 85208-6-I/44
    diagnoses or courses of treatment.” Needham, 11 Wn. App. 2d at 490 (citing
    Fergen, 182 Wn.2d at 806). Although the record contained evidence that the
    doctor therein may have been presented with a choice among diagnoses or
    methods of treatment for his breathing symptoms, the defendants had failed to
    present evidence that the doctor had made a choice between those diagnoses or
    treatment. Needham, 11 Wn. App. 2d at 490-92; see also Davies v. MultiCare
    Health Sys., 18 Wn. App. 2d 377, 394-96, 
    491 P.3d 207
     (2021) (issuance of
    exercise of judgment instruction was proper because trial record contained
    evidence that physicians were presented with a treatment choice regarding
    additional diagnostic testing and that such physicians made a choice consistent
    with the standard of care to not order such testing), rev’d on other grounds, 
    199 Wn.2d 608
    , 
    510 P.3d 346
     (2022).
    3
    To sum up, the exercise of judgment instruction may be given when there
    is proof that a physician was confronted with a choice between competing
    diagnoses or methods of treatment, each or all of which would be consistent with
    the standard of care, and proof that the choice made by the physician among
    those competing options was consistent with the standard of care. Affirmative
    evidence that the physician’s reasoning underlying that choice was consistent
    with that standard is not required.
    The instruction on the exercise of judgment principle recognizes that the
    practice of medicine is an inexact science requiring decisive action by a
    physician. It, again, follows from another basic principle: “[i]n the absence of
    44
    No. 85208-6-I/45
    proof that the doctor failed to exercise the required level of skill and care, the
    patient suing the doctor should not prevail.” Watson, 
    107 Wn.2d at
    161-62 (citing
    Versteeg, 
    72 Wn.2d at 755
    ; Richison, 57 Wn.2d at 4-5). It thereby serves to
    remind the jury that, if a physician is presented with a choice between competing
    treatments or diagnoses, and either choice is consistent with the standard of
    care, a physician is not liable for making the less wise choice.
    B
    With the foregoing analysis in mind, we next consider whether the record
    contains sufficient evidence to support the trial court’s decision to issue an
    exercise of judgment instruction to the jury herein. We conclude that it does.
    1
    We have previously set forth the general principles applicable to a
    challenge to a jury instruction. In addition, this court has stated that
    [w]e review a decision on whether to give an exercise of
    judgment instruction for abuse of discretion. 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). If a party’s case theory lacks substantial evidence, a trial
    court must not instruct the jury on it. Albin v. Nat’l Bank of
    Commerce of Seattle, 
    60 Wn.2d 745
    , 754, 
    375 P.2d 487
     (1962);
    State v. Hughes, 
    106 Wn.2d 176
    , 191, 
    721 P.2d 902
     (1986). The
    converse is true as well. Kelsey v. Pollock, 
    59 Wn.2d 796
    , 798-99,
    
    370 P.2d 598
     (1962); Cooper’s Mobile Homes, Inc. v. Simmons, 
    94 Wn.2d 321
    , 327, 
    617 P.2d 415
     (1980). In this context, evidence
    supporting a party’s case theory “must rise above speculation and
    conjecture” to be substantial. Bd. of Regents of Univ. of Wash. v.
    Frederick & Nelson, 
    90 Wn.2d 82
    , 86, 
    579 P.2d 346
     (1978). In
    other contexts, evidence is substantial if a “sufficient quantum
    [exists] to persuade a fair-minded person of the truth of the
    declared premise.” Holland v. Boeing Co., 
    90 Wn.2d 384
    , 390-91,
    
    583 P.2d 621
     (1978).
    45
    No. 85208-6-I/46
    Fergen v. Sestero, 
    174 Wn. App. 393
    , 396-97, 
    298 P.3d 782
     (2013) (alteration in
    original) (footnote omitted), aff’d, 
    182 Wn.2d 794
    , 
    346 P.3d 708
     (2015).
    “[T]he standard of care is generally established only through the testimony
    of physicians.” Keogan v. Holy Fam. Hosp., 
    95 Wn.2d 306
    , 325, 
    622 P.2d 1246
    (1980) (citing Versteeg, 
    72 Wn.2d at 755
    ). Thus, physician testimony as to the
    applicable standard of care is expert witness testimony for the purpose of the
    rules of evidence. See ER 702, 703.
    A challenge to the sufficiency of the evidence, of course,
    admits the truth of the opposing party’s evidence and all inferences
    that reasonably can be drawn therefrom, and requires that the
    evidence be interpreted most strongly against the moving party and
    in the light most favorable to the party against whom the motion is
    made.
    Richison, 57 Wn.2d at 4 (citing Traverso v. Pupo, 
    51 Wn.2d 149
    , 151, 
    316 P.2d 462
     (1957)).
    And, once again, the exercise of judgment instruction
    applies only where there is evidence that in arriving at a judgment,
    “the physician or surgeon exercised reasonable care and skill,
    within the standard of care he [or she] was obliged to follow.”
    Secondly, its application will ordinarily be limited to situations where
    the doctor is confronted with a choice among competing therapeutic
    techniques or among medical diagnoses.
    Watson, 
    107 Wn.2d at 165
     (alteration in original). It is appropriate to provide that
    instruction when the record contains conflicting medical expert testimony as to
    whether the physician defendant’s choice of treatment or diagnoses was
    consistent with the standard of care. Christensen, 
    123 Wn.2d at 249
    .
    46
    No. 85208-6-I/47
    2
    We now turn to the evidence presented at trial regarding whether Dr. Gala
    was confronted with a choice among competing methods of treatment and
    whether the treatment choices that Dr. Gala made were consistent with the
    standard of care.
    i
    At trial, as an initial matter, Dr. Gala provided testimony regarding her
    prescription of prednisone to treat Supak’s lupus flares during the time in
    question. Dr. Gala testified that, in November 2017,
    [w]ith prior arthritis flares, [Supak] had responded to increase in
    prednisone, and she was having pain and I wanted to make sure
    that we treat her arthritis flare quickly to reduce her pain and also to
    treat her lupus disease, and I increased her prednisone to that 15
    milligrams. I was hopeful at that visit that I could taper down to
    lower doses to manage the arthritis flares.
    Dr. Gala testified that, in early January 2018, when she heard Supak
    “reported that her arthritis flared up, or the improvement she had wore off when
    she got below 15 milligrams of prednisone,” she “asked Mrs. Beard to increase
    her prednisone to the 20 milligrams in hopes to get improvement of her lupus
    arthritis flare.”
    Dr. Gala then testified that, by mid-January, she again increased Supak’s
    prednisone dose to treat her active arthritis flare:
    Q       How did you come to the judgment for your patient
    Supak Beard, that you had been taking care of for more than ten
    years at this point, how did you come to the judgment that in your
    estimation increasing her prednisone to 60 milligrams for two
    weeks and then decreasing it to 40 milligrams was a reasonable
    plan for Mrs. Beard?
    47
    No. 85208-6-I/48
    A       It was reasonable. Mrs. Beard had an active arthritis
    disease. In order to quickly treat and control the inflammation that
    was involving multiple joints, we needed an agent that would
    improve the inflammation quickly, and that is prednisone. Other
    treatments that we have would take a long time before we could get
    control of the arthritis.
    Q       Were you mindful with the dosing of prednisone,
    whether that was in November or January 4 or January 15, were
    you mindful of what you told the jury earlier, that prednisone is
    known to carry an increased risk for infection?
    A       Yes.
    Q       Were you also concerned that not controlling this flare
    associated with significant inflammation that that, too, could
    increase her risk of infection if you didn’t get it under control?
    A       Yes.
    Dr. Gala further testified that, thereafter, she asked Supak to stay on the
    60 milligram dose of prednisone because, “[w]ith the elevated liver tests, I
    wanted to hold methotrexate. I was concerned that that could be contributing to
    those lab changes. And with the active inflammation of her joints, I wanted to
    hold steady her prednisone dose.”
    Dr. Gala further testified that, during Supak’s office visit on March 1, she
    became aware that Supak had “tapered prednisone to 20 milligrams every day
    over the course of the last few weeks” and that “[w]ith tapering, joint pain was
    returning in her shoulder, her right wrist, and now having, again, difficulty making
    a fist.” Dr. Gala testified that Supak’s report that day
    told me that as she tapered through the month of February, her
    arthritis was active again.
    Q      All right. And what was your plan to address that
    return of her flare with the lower dose of prednisone?
    A      With the return of her flare, I increased her
    prednisone to 40 milligrams once a day.
    Q      All right. And why was that, in your mind, important to
    do that day?
    48
    No. 85208-6-I/49
    A      My concern was that the tapering went too fast and
    this led to the flare that she was experiencing and that I wanted to
    get it back under control.
    Q      When you learned that she had had such a good
    period of time on a higher dose of prednisone, traveling, working,
    so on and so forth, but as of this visit she has a return of her flares
    with a decrease, what does that mean to you? What are you
    looking to do there?
    A      Well, it means to me that her lupus is active,
    particularly her joints, and that I needed to get it back under control
    with an increase in prednisone.
    Q      All right. We’re going to talk in just [a] moment about
    your concern for infection. Were you concerned that increasing the
    prednisone to 40 milligrams would increase her risk of infection that
    day?
    A      We’re always cognizant that any change in
    prednisone certainly puts that as a concern.
    The exhibits setting forth Dr. Gala’s treatment notes during this time reflect
    that she was aware of Supak’s report of decreased symptoms on higher doses of
    prednisone and increasing symptoms after tapering down her prednisone dose,
    that she physically examined Supak and observed medical signs consistent with
    Supak’s reported symptoms, that she assessed that Supak was experiencing a
    lupus arthritic flare, that she had to discontinue a lupus flare medication, and that
    she prescribed prednisone at the doses set forth above in response to Supak’s
    history, reported symptoms, and clinical presentation.
    Dr. Volkmann, in her capacity as a medical expert in rheumatology,
    testified that Dr. Gala’s decisions regarding Supak’s prednisone doses were
    consistent with the standard of care. This was so, according to Dr. Volkmann,
    because, by January and February 2018, the lower prednisone dose had not
    controlled Supak’s inflammation, Dr. Gala had to discontinue another of Supak’s
    lupus flare medications, and “more joints were involved, that could be a sign that
    49
    No. 85208-6-I/50
    the inflammation was starting to spread throughout the body, and might need a
    higher dose to control that inflammation.” The increased dose was also
    reasonable because, even though it presented an increased risk for infection, not
    treating Supak’s lupus flare-up would also increase her risk for infection. Dr.
    Volkmann also testified that Dr. Gala’s decision on March 1 to increase Supak’s
    prednisone dosage to 40 milligrams was consistent with the standard of care
    because Supak’s lupus flare arthritis symptoms had a pattern of returning after
    the instances in which Supak had decreased her prednisone dose.
    Dr. Gala also provided testimony regarding her investigation into whether
    Supak had an infection on March 1. Dr. Gala testified that, on March 1, she had
    been aware of Supak’s February 5 urgent care clinic visit, including that Supak
    had presented with a fever but no cough, that the chest X-ray from that visit
    showed possible pneumonia, that the radiologist had told the urgent care
    physician to consider following-up with further imaging, that Supak was
    prescribed antibiotics as a precautionary measure, that she later cancelled a
    follow-up appointment because she no longer had a fever and was feeling better,
    that she went on a week-long vacation shortly thereafter, and that she returned to
    work after that vacation.
    Dr. Gala further testified that, on March 1, she did not think that a repeat
    chest X-ray was warranted in light of Supak’s reported symptoms on that day,
    including the absence of a cough and shortness of breath, the results of her
    examination of Supak’s lungs, which she observed were clear to auscultation,
    and her determination that the February “infection had resolved with the
    50
    No. 85208-6-I/51
    treatment instituted by the walk-in clinic.” Dr. Gala testified that, because of
    Supak’s fever in the clinic on March 1, “I was thinking of the possibility it was
    related with her lupus flare but also concerned of the possibility of infection.”
    Q        And what did you do in considering the possibility for
    infection in Mrs. Beard?
    A        I asked her to complete a blood culture and urine
    culture.
    Q        And when we’re looking at the report of fever and a
    concern for that potentially reflecting an infection, what are the
    things that you learned during that visit that are reassuring to you
    even though you’re going to pursue a workup for infection?
    A        So I was reassured by her history of no chest pain or
    shortness of breath or cough. I was also reassured on examination
    of her lungs and her chest. Her exam was consistent with an
    arthritis flare, but I did feel, with the one day of fever, that I needed
    to check blood and urine cultures for evaluation.
    The exhibit containing Dr. Gala’s March 1 treatment notes set forth Dr.
    Gala’s notations regarding Supak’s early February treatment:
    Patient then developed a fever in early Feb with temp 102.9. Seen
    in [walk-in clinic]. Possible pneumonia although patient reports she
    had no cough or difficulty breathing. . . . Patient reports feeling
    much better after starting [antibiotics] from [walk-in clinic]. She
    reports going to Florida with husband to visit in laws from 2/10 –
    2/17/18. Felt well during this time. No fevers.
    The March 1 treatment note further reflected Dr. Gala’s notation that
    “[t]oday she reports having chills this a[.]m[.] and noted to have fever here in the
    office. No fever yesterday but she did have some chills. Husband with strep
    throat. Patient denies cough, sore throat or difficulty in breathing.” The
    treatment note also set forth the following: Dr. Gala’s observation of Supak’s lung
    as being “[c]lear to auscultation,” the text of the February 5 chest X-ray report,
    Dr. Gala’s assessment that Supak had “high fever in early Feb that resolved with
    [antibiotics] but now with return of chills and fever today,” and Dr. Gala’s
    51
    No. 85208-6-I/52
    conclusion that the “[e]tiology of fever is unclear. Lungs [clear to auscultation].
    Check urine culture and blood culture today.”
    Dr. Brown, Beard’s expert witness on rheumatology, for his part, testified
    that the standard of care required Dr. Gala to order a chest X-ray on March 1 as
    part of investigating for an infection.
    Dr. Volkmann, in contrast, testified that Dr. Gala ordering blood and urine
    cultures, but not ordering a chest X-ray on March 1, was consistent with the
    standard of care.
    Even though chest X-rays are often part of the standard workup for
    infection, we know that the patient the month prior had a presumed
    pulmonary infection, was treated with antibiotics and her symptoms
    went away and she was feeling better, so well that she was able to
    travel and go places, and so because of that it wasn’t necessary to
    repeat a chest X-ray because she responded so well to the
    antibiotics.
    Moreover, Dr. Volkmann testified,
    the patient didn’t have any localizing signs of infection, she didn’t
    have abdominal pain which might warrant doing abdominal
    imaging, she didn’t have any respiratory symptoms which might
    warrant looking at her lungs, she really started with the broad
    workup, and that is looking in the blood to see if there’s an infection
    there, and looking in the urine to see if there’s an infection there.
    And these are two common places that we look in patients
    who don’t have any kind of localizing signs of where the infection
    will be. And in patients with lupus in particular, the most common
    site where we see infection is actually in the urine, and they usually
    get bacterial urinary tract infections.
    With regard to her treatment investigating Supak’s abnormal liver function
    testing and subsequent ordering of a referral to gastroenterology, Dr. Gala
    testified that
    52
    No. 85208-6-I/53
    [s]o initially, even though she had only two doses of methotrexate, I
    was concerned the liver tests were related to the medication I had
    instituted. With holding methotrexate, her liver tests remained
    elevated, and at that point, I did not feel it was tied to the
    methotrexate medication, as she had been holding it for some time.
    And so I wanted to recheck her labs, and if her liver tests were
    elevated, I wanted to pursue a gastroenterology consultation.
    Dr. Gala testified that her plan on March 1 was
    [t]hat we are going to treat her lupus arthritis flare. We’re also
    going to evaluate for the possibility of infection, given one day of
    fever, and that we needed to follow up on these elevated liver
    function tests. And with the labs that I ordered on March 1st, those
    results guide me. And if elevated, I would send her to
    gastroenterology, or refer to her gastroenterology.
    Dr. Gala further testified that, when the liver functioning test results came
    back abnormal, she referred Supak to a gastroenterologist.22 Dr. Gala
    additionally testified that, in ordering that referral, she did not tell the consulting
    gastroenterologist that Supak had a fever or that she was considering that Supak
    may have an infection because “Dr. King is a board-certified gastroenterologist. I
    knew that she would know how to evaluate Mrs. Beard, and she knows how to do
    her job as a gastroenterologist.” Dr. Gala also testified that her gastroenterology
    colleagues “would be able to take the history from Mrs. Beard and examine her
    and come to a determination of what needed to be done.”
    Dr. Brown, for his part, testified that the standard of care required Dr. Gala
    to personally contact the gastroenterologist and tell him that she suspected that
    Supak had an infection.
    22 Dr. Gala testified that she did not order the gastroenterology referral on an urgent basis
    because “[t]here was not a need at this point to do an urgent consultation.”
    53
    No. 85208-6-I/54
    Dr. Volkmann, in contrast, testified that the manner in which Dr. Gala
    referred Supak to a gastroenterologist was consistent with the standard of care.
    This was so, according to Dr. Volkmann, because, “generally, when we do
    referrals to other consults, we don’t call the person,” “all of the information that
    the consultant needs about the patient is in the electronic medical record,” and it
    is reasonable for a rheumatologist to assume that, in meeting with a patient, the
    physician to whom the referral was made would review the patient’s medical
    record, obtain a medical history, and conduct a physical examination.
    With regard to ordering an urgent referral to an infectious disease
    specialist, Dr. Gala testified that, on March 1, she did not believe that such a
    referral was necessary.
    Q       Okay. And have you sent patients of yours where you
    believed that the patient is actively having an infection and you’re
    concerned about their medical stability? Have you sent patients to
    the emergency department in that scenario?
    A       Yes.
    Q       And was there anything in your assessment of all of
    the things that you knew about Mrs. Beard on March 1st, including
    her history from the month prior, that led you to feel that she had a
    need for any referral to infectious disease or to the emergency
    department for an infection?
    A       No.
    Instead, Dr. Gala testified, her treatment plan as of March 1 was “[t]o continue as
    per our office visit, her prednisone for treatment of her lupus arthritis flare, and I
    was reviewing the pending culture results.”
    Dr. Gala also testified that, when she learned that Supak had a fever of
    100.7 degrees on March 2, it did not change how she felt she needed to
    approach Supak’s treatment.
    54
    No. 85208-6-I/55
    Q      Did it seem to you that knowing that the next morning
    Mrs. Beard had a fever of 100.7, that that turned this into an urgent
    need for referral to an outside specialty, specifically infectious
    disease?
    A      No.
    Q      And why not?
    A      Her cultures were negative to date, meaning every
    day I get results from the lab informing me if there’s any growth on
    the culture. So I was reviewing that, and the plan for Mrs. Beard
    was as we stated before on the March 1st visit.
    Dr. Brown, for his part, testified that on March 1 and March 2, Dr. Gala
    was required by the standard of care to urgently refer Supak to an infectious
    disease specialist.
    Dr. Volkmann, in contrast, testified that Dr. Gala not urgently referring
    Supak to an infectious disease specialist on March 1 or March 2 was within the
    standard of care. This was so, Dr. Volkmann testified, because on March 1,
    [t]here was nothing urgent about her presentation on this day that
    would necessitate an urgent evaluation from infectious disease.
    She had a low-grade fever, and this is something that’s pretty
    common in patients with lupus. There was nothing abnormal about
    the temperature that she had. She had no other localizing signs of
    infection, and I think if this chart crossed the desk of an infectious
    disease doctor they also would not think that there was any urgent
    need to see this patient.
    Dr. Volkmann further testified that Dr. Gala’s medical treatment provided
    to Supak on March 2—to wait for the blood and urine cultures and not urgently
    refer Supak to a specialist—was consistent with the standard of care. This was
    so, according to Dr. Volkmann, because
    when we do urgent referrals to other specialists, there has to be a
    reason why we’re doing the urgent referral, and in this case, the
    patient had a fever for one day and it continued for another day, but
    the treatment that was prescribed, the increase in prednisone, only
    has one day to work, so we really wouldn’t expect a change in the
    fever at that early time point.
    55
    No. 85208-6-I/56
    In addition, Dr. Gala had ordered studies to check for an
    infection in the blood and the urine, and she communicated that
    those were still pending that next day. So she was still looking to
    see whether there was an infection at that time to explain why the
    fever was there.
    With regard to her treatment of Supak on March 5, upon learning that she
    had a symptom of blood in her stool, Dr. Gala testified that she asked her staff to
    facilitate getting Supak a gastroenterology appointment with a physician and
    ordered a stool study. These additional steps were warranted, according to Dr.
    Gala’s testimony, in light of Supak’s newly reported symptom and the need to
    evaluate the stool for infection.
    Dr. Volkmann testified that the treatment that Dr. Gala provided to Supak
    on March 5 was consistent with the standard of care “[b]ecause when she
    learned that the patient had blood in the stool, she then followed that up and got
    a stool culture to see if there was any infection in the stool.”
    ii
    The parties later rested their cases in chief. A jury instruction colloquy
    followed. In response to an objection by Beard’s counsel to the issuance of the
    exercise of judgment instruction, defense counsel replied,
    in a medical malpractice [case] like this one, where judgment is at
    issue in the case, where there is evidence, which we have in
    spades in this case, of Dr. Gala facing a choice of competing
    therapeutic treatments and/or diagnoses, . . . this instruction [is] . . .
    very appropriate.
    In this case, we have the choice between getting a chest X-
    ray or not. We have the choice between doing something more on
    March 2nd with the fever continuing or not. We have the choices
    related to dosing that we’ve heard lots of testimony about how Dr.
    Gala did and should consider the risks and benefits of dosing
    prednisone. We have heard about the different differential
    diagnoses that Dr. Gala considered, including infection and lupus
    56
    No. 85208-6-I/57
    and elevated liver function tests. We’ve heard a plethora of
    testimony about whether referral to gastroenterology was a
    reasonable choice or not, whether she should have instead referred
    to infectious disease or not and the choice associated with that.
    ....
    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 from what constitutes proper
    treatment. That is squarely within the issues of this case. It is
    squarely supported by all of the evidence from both sides in this
    case, and it is the defense for Dr. Gala.
    The trial court then overruled Beard’s objection, concluding,
    [i]t’s clear to me that this instruction does have some basis in the
    facts. Actually, this instruction could actually work, maybe, both
    ways based upon the evidence. [Fergen v. Sestero] does say that
    the instruction can be given. It didn’t overturn the instruction. I
    recognize that one should proceed cautiously, but I believe that
    based upon the evidence that I heard there is facts to support this.
    The court ruled that it would issue the exercise of judgment instruction, set forth
    herein, to the jury.23
    iii
    The trial court did not abuse its discretion in issuing the exercise of
    judgment instruction to the jury. First, the trial record contains numerous bases
    on which a jury could find that Dr. Gala was presented with circumstances
    requiring her to make a choice between methods of treatment including the
    following: increasing Supak’s prednisone dosage or maintaining (or lowering) her
    prednisone dosage during the time in question; ordering urine and blood testing
    or ordering urine and blood testing as well as another chest X-ray on March 1;
    23 Beard did not request that the trial court modify the instruction in any way nor did he
    request that the court issue any type of limiting instruction in conjunction with the challenged
    instruction.
    57
    No. 85208-6-I/58
    continuing to wait for the urine and blood test results or urgently referring Supak
    to an infectious disease specialist on March 2; and referring Supak to a
    gastroenterologist and trusting that the consultant would review the record or
    issuing such a referral and personally contacting the gastroenterologist ahead of
    the appointment. Given all of this, the record contains evidence that Dr. Gala
    was presented with multiple circumstances requiring her to choose between
    different methods of treatment.
    The record also reflects that Dr. Gala made choices—that is, exercised
    her medical judgment—during the time in question in the response to the
    evolving dynamics surrounding Supak’s treatment. For instance, Dr. Gala
    adjusted Supak’s prednisone dose in response to her reported symptoms, clinical
    observations, the laboratory test results, and imaging studies. Dr. Gala ordered
    blood, urine, and stool cultures in response to Supak’s reported—and clinically
    observed—fever and her reported blood in her stools. Dr. Gala referred Supak to
    a gastroenterologist in response to ongoing abnormal liver functioning tests.
    And, in response to Supak’s new symptoms of a second day of fever and three
    days of blood in her stools, Dr. Gala chose to continue to review Supak’s pending
    urine and blood culture tests each day and order a stool pathogen panel as she
    waited for the test results to finalize.
    Lastly, the record contains expert witness testimony supporting that Dr.
    Gala made choices that were consistent with the rheumatological standard of
    care. As set forth above, Dr. Volkmann, a rheumatological expert witness,
    testified that each of Dr. Gala’s choices discussed herein were consistent with
    58
    No. 85208-6-I/59
    the standard of care. Moreover—although not necessary to the issuance of the
    exercise of judgment instruction—Dr. Volkmann provided cogent reasoning as to
    why each of those choices were within the standard of care.
    Given all of that, the record contains ample evidence supporting that, in
    the course of treating Supak during the time in question, Dr. Gala was confronted
    with choices among competing methods of treatment or diagnoses and that the
    choices that she made were consistent with the standard of care. The trial court
    did not abuse its discretion by issuing the exercise of judgment instruction to the
    jury.
    3
    Beard nevertheless presents several challenges to the sufficiency of the
    evidence adduced at trial. Each challenge fails.
    i
    Beard first asserts that the record did not contain sufficient evidence to
    warrant issuance of the exercise of judgment instruction because the record did
    not set forth evidence that Dr. Gala’s reasoning underlying certain of her
    treatment choices was consistent with the standard of care and because Dr.
    Volkmann’s and Dr. Gala’s testimony explaining the reasoning underlying Dr.
    Gala’s treatment choices were not identical. Beard’s assertion fails.
    As set forth in Section A, supra, our decisional authority only requires that
    the record contain evidence that the physician was confronted with a choice
    between competing methods of treatment (or diagnoses) and that the physician’s
    choice among those competing options was consistent with the standard of care.
    59
    No. 85208-6-I/60
    Proof that the reasoning underlying such a choice was consistent with that
    standard is not required. Furthermore, as set forth in Section B herein, the
    record contained evidence on which a jury could find that Dr. Gala was
    confronted with choices, made choices, and that per Dr. Volkmann’s testimony,
    such choices were consistent with the standard of care. Proof that Dr. Gala’s
    reasoning was consistent with the standard of care was not necessary.
    Therefore, Beard is not entitled to rely on such argument as a basis for
    refusing to issue the exercise of judgment instruction. Instead, he could have
    argued the fact questions presented to the jury as a basis for the jurors to
    determine that the challenged instruction did not properly apply to several of the
    defendant’s challenged choices. Our review of the record does not disclose such
    an argument being advanced. In any event, the jury was permitted to weigh the
    evidence as it saw fit.
    ii
    Beard next asserts that the record did not contain sufficient evidence to
    warrant issuance of the challenged instruction because Dr. Brown’s and Dr.
    Volkmann’s expert testimony conflicted as to whether Dr. Gala’s choices of
    treatment were consistent with the standard of care.
    This assertion fails as well. There was sufficient testimony presented that,
    viewed in the light most favorable to Dr. Gala, supported the issuance of the
    instruction. The existence of a dispute among the expert witnesses produces
    questions for the jury—it does not militate against issuing the challenged
    instruction.
    60
    No. 85208-6-I/61
    iii
    Beard also asserts that the record did not contain sufficient evidence to
    warrant issuing the challenged instruction because the record contained
    undisputed medical expert testimony that Dr. Gala’s treatment fell below the
    standard of care as to certain choices of treatment or reasons for choosing such
    treatment.
    Beard’s challenge fails again. As set forth herein, the record contains
    evidence supporting that Dr. Gala was confronted with choices among treatment
    options and that the choices that she made were within the standard of care.
    This was enough for the requirements of the exercise of judgment instruction to
    be met as to those choices. That another expert witness testified that Dr. Gala’s
    conduct fell below the standard of care on an unrelated aspect of her treatment
    of Supak does not affect the evidence adduced in support of issuing the
    challenged instruction. It is not a reason to decline to issue the challenged
    instruction. Rather, such testimony could, once again, provide a basis for the
    plaintiff to argue to the jury the inapplicability of the challenged instruction to Dr.
    Gala’s conduct. At most, a question for the jury was presented. The existence of
    such a question does not alter the propriety of issuing the challenged instruction.
    iv
    Finally, Beard asserts that the record did not contain sufficient evidence to
    warrant issuance of the challenged instruction because Dr. Gala provided
    testimony elicited by questions framed by counsel that could be construed as her
    making her treatment decisions in this matter based on a single day of treatment,
    61
    No. 85208-6-I/62
    rather than on the entirety of her treatment relationship with Supak. Beard is
    mistaken.
    As a general matter, a jury is free to consider a question posed to a
    witness as either unartfully or unfairly phrased and thereby view the answer
    provided in response to such a question accordingly. The jury herein, for
    instance, could have chosen to view Dr. Gala’s response to the question at issue
    and consider Dr. Gala’s answer in light of her decade of treating Supak, as
    evidenced by Dr. Gala’s testimony, the exhibited medical records, and Dr.
    Volkmann’s testimony summarizing those records.
    Moreover, the trial judge, in determining whether sufficient evidence was
    adduced to warrant issuance of the challenged instruction, was free to recognize
    the jury’s freedom to so consider the question and answer at issue. Thus,
    Beard’s assertions challenging the sufficiency of the evidence to provide the
    exercise of judgment instruction fail. The trial court did not err by issuing the
    challenged instruction to the jury.
    C
    Beard next asserts that the issuance of the exercise of judgment
    instruction constituted an improper judicial comment on the evidence. Beard’s
    claim is in large part based on his assertion that Dr. Gala did not present
    substantial evidence that she met the standard of care required to justify the
    issuance of the challenged instruction. We have addressed that assertion in the
    preceding section, concluding to the contrary. Given that we concluded that Dr.
    Gala presented substantial evidence to support issuance of the jury instruction
    62
    No. 85208-6-I/63
    and because the law was correctly stated in that instruction, the instruction did
    not constitute an improper judicial comment on the evidence.
    1
    As previously noted, judges do not comment on the evidence merely by
    properly instructing a jury on the law. “An instruction which does no more than
    accurately state the law pertaining to an issue does not constitute an
    impermissible comment on the evidence by the trial judge under Const. art. 4, §
    16.” Christensen, 
    123 Wn.2d at
    249 (citing Hamilton, 
    111 Wn.2d at 571
    ).
    Whether to give this instruction is within the trial court’s discretion. Christensen,
    
    123 Wn.2d at 248
    .
    In Christensen, the plaintiff contended that two instructions—the no
    guarantee-poor result and the exercise of judgment instructions—should not
    have been issued on the basis that they were unwarranted and thus constituted a
    comment on the evidence. 
    123 Wn.2d at 248
    . Our Supreme Court held that the
    trial court did not err by giving the exercise of judgment instruction. More than
    one defense expert testified to the alternative choices of therapeutic techniques
    that the defendant physician could reasonably employ to treat the plaintiff’s
    condition. This testimony supported the physician’s analysis of the situation and
    choice of actions. Thus, the instruction was warranted. Christensen, 
    123 Wn.2d at 249
    .
    Moreover, the exercise of judgment instruction issued to the jury
    “accurately stated the law as set forth by this court in Watson and thus did not
    constitute [a] comment[ ] on the evidence.” Christensen, 
    123 Wn.2d at 249
    .
    63
    No. 85208-6-I/64
    Hence, the trial court was justified in issuing the exercise of judgment jury
    instruction as a supplement to the standard of care instruction. The same is so
    herein.
    Here, the record demonstrates similar circumstance. Expert medical
    witnesses, Dr. Volkmann, Dr. Brown, Dr. Curlin, and Dr. Williams, testified to the
    array of alternative treatments and diagnoses that fit within the standard of care
    for a patient suffering the same medical conditions as Supak. Dr. Gala also
    testified to the choices that she made in providing treatment to Supak.
    Substantial evidence was thus presented to the jury, as the trier of fact, to
    consider in their deliberations. The trial court then properly issued the exercise
    of judgment instruction because the instruction did “no more than accurately
    state the law pertaining to an issue.” Christensen, 
    123 Wn.2d at 249
    . The
    instruction in no way conveyed the judge’s personal beliefs on the merits of the
    case. See Addox, 
    123 Wn.2d at 38
    . Accordingly, there was no error.
    D
    Finally, Beard contends that issuing both the no guarantee-poor result and
    exercise of judgment instructions together was unfair because it overemphasized
    the defense theory of the case and unnecessarily emphasized the limits of
    physician liability. Beard argues that four standard of care instructions were
    given, two of which were neutral,24 while the other two—no guarantee-poor result
    and exercise of judgment instructions—were slanted in Dr. Gala’s favor. Beard
    24 The two “neutral” instructions were jury instruction 7 (which defined the standard of
    care and negligence in accordance with WPI 105.01) and jury instruction 6 (which set forth
    plaintiff’s burden of proof in accordance with WPI 105.03).
    64
    No. 85208-6-I/65
    asserts that issuing half of the standard of care instructions in this manner
    constituted a comment on the evidence and was prejudicial. These assertions
    are unavailing.
    1
    “Generally, the reviewing court considers an objection to the exclusion of a
    specific instruction by examining the instructions as a whole.” Vasquez v.
    Markin, 
    46 Wn. App. 480
    , 490, 
    731 P.2d 510
     (1986). “When the instructions as a
    whole so repetitiously cover a point of law or the application of a rule as to
    grossly overweigh their total effect on one side and thereby generate an extreme
    emphasis in favor of one party to the explicit detriment of the other party, it is, we
    think, error.” Samuelson v. Freeman, 
    75 Wn.2d 894
    , 897, 
    454 P.2d 406
     (1969).
    However, the standard of care instruction, no guarantee-poor result
    instruction, and exercise of judgment instruction are routinely given together in
    Washington courts. The note on use to the WPI 105.08 states that when the
    exercise of judgment instruction is issued, “[t]he court should give WPI 105.07
    (No Guarantee—Poor Result) . . . with this instruction.”25 In accordance with this
    recommendation, the issuance of these two instructions in tandem is routinely
    upheld on appeal. See Christensen, 
    123 Wn.2d at 247-49
    ; Watson, 
    107 Wn.2d at 161-170
    ; Miller, 
    91 Wn.2d at 159-61
    ; Vasquez, 
    46 Wn. App. at 487-89
    .
    2
    The no guarantee-poor result instruction and exercise of judgment
    instructions are supplemental to the general and specialist standard of care
    25 WPI 105.08, at 625.
    65
    No. 85208-6-I/66
    instructions. The guidance provided in both WPI 105.07 and WPI 105.08 clearly
    instruct courts that they “should give” or “use,” “when appropriate,” “this
    instruction to supplement either WPI 105.01 (Negligence—General Health Care
    Provider), or WPI 105.02 (Negligence—Health Care Provider—Specialist).”
    Once, again, Watson explains that
    [t]he “no guarantee”, “bad result” and “error in judgment”
    instructions discussed above, to use the phraseology of Miller,
    “supplement” the standard of care; while they may clarify it, they do
    not change it. Thus, these instructions can only be given in
    connection with a proper standard of care instruction.
    
    107 Wn.2d at 166-67
     (emphasis added);26 see also Christensen, 
    123 Wn.2d at 248
    . These instructions are intended to remind the jury that “medicine is an
    inexact science.” Fergen, 182 Wn.2d at 804 (citing Watson, 
    107 Wn.2d at 167
    ).
    3
    It is plain that the legal principles contained in the two challenged
    instructions have repeatedly been deemed to be the proper subjects of jury
    instructions. Basing a challenge on the mere number of instructions given is a
    pointless approach. So long as the supplemental instructions were truly that, and
    were not repetitive, it matters little whether the legal principles were set forth in
    one, two, or three supplemental instructions.
    We find Beard’s reliance on the 1969 decision in Samuelson unavailing.
    In that case, the Supreme Court held that the trial court’s issuance of six
    consecutive standard of care instructions constituted an “extreme case where
    26 In Watson, the “no guarantee” and “bad result” principles were contained in separately
    issued instructions. Thus, three supplemental instructions were approved of, rather than the two
    at issue herein.
    66
    No. 85208-6-I/67
    they overlap and are repetitive to such a degree that a court of review must find
    them palpably unfair.” Samuelson, 
    75 Wn.2d at 897
    .
    The court then noted that “[t]his overweighing of the instructions is not
    likely to recur . . . because of the recent publication in this state of [the]
    Washington Pattern Jury Instructions . . . which set forth possible instructions
    concerning standards of medical practice and seem to do so with fairness and
    reasonable brevity.” Samuelson, 
    75 Wn.2d at 897
    .
    The Samuelson court’s prediction has apparently borne out. Other than
    Samuelson, the sole case authority cited to us by Beard that ruled similarly to
    Samuelson is Brown v. Dahl, 
    41 Wn. App. 565
    , 579, 
    705 P.2d 781
     (1985), a 39-
    year old decision in which the trial court issued five instructions on the standard
    of care that were “strikingly similar to those held to be unduly overemphasiz[ing]
    in Samuelson.”
    The absence of recent authority following Samuelson’s holding reinforces
    our belief that the trial court did not herein err by issuing these two challenged
    pattern instructions in accordance with the recommendation set forth in the note
    on use applicable to these very instructions.
    The combination of the general standard of care instruction plus the two
    properly issued supplemental instructions did not constitute an overemphasis in
    the whole of the jury instructions. The issuance of these instructions did not
    constitute an improper judicial comment on the evidence and did not deny Beard
    a fair trial.
    67
    No. 85208-6-I/68
    Affirmed.
    WE CONCUR:
    68
    

Document Info

Docket Number: 85208-6

Filed Date: 10/28/2024

Precedential Status: Precedential

Modified Date: 10/28/2024