Legal Victory Strengthens Critical Safeguard for Physician Practice
By Jennifer Hanscom
Physicians often recognize the WSMA for its advocacy in Olympia. That work is essential, but it’s only part of the story. The WSMA advocates for physicians wherever decisions affecting the practice of medicine are made: with our congressional delegation, in the regulatory arena, with insurers, in the media, and before the courts.
It’s this last area—legal advocacy—that often goes undetected. Court cases can stretch on for years and their outcomes are rarely suited to easy summaries. Yet, this work is critically important, particularly in a state environment where our state’s legislative leadership has historically shown little support for tort reform.
Much of WSMA’s legal advocacy occurs through “friend of the court,” or amicus curiae briefs. These briefs present a physician-centric perspective in cases that can shape the legal framework that governs medical practice. Often these briefs are aimed at preserving the limited but important protections physicians have under state statues and case law.
That work paid off again last week.
The Washington State Supreme Court affirmed a key jury instruction known as the “exercise of judgment” standard. This instruction reminds juries of a fundamental reality: medicine is not an exact science. It states that the physician is not liable for choosing among reasonable alternatives, provided that decision was made with appropriate care and skill within the standard of care.
This protection has been challenged before. In Fergen v. Sestero (2015), dissenting justices argued the instruction was “slanted.” However, with support from the WSMA and partners, the court upheld it, and that reasoning later contributed to a unanimous decision in Paetsch v. Spokane Dermatology Clinic, PS.
More recently in Beard v. Everett Clinic, the issue resurfaced. The question before the court was whether the instruction requires only that a physician’s decision fall within the standard of care, or whether the physician’s decision-making process must also independently meet that standard.
Recognizing the stakes, the WSMA filed an amicus brief, joined by the AMA Litigation Center, the Washington State Hospital Association, the Washington Academy of Family Physicians, and the Washington Chapter of the American College of Emergency Physicians, with support from Physicians Insurance.
In a victory for the profession, this month the Supreme Court affirmed the lower court’s decision and upheld the use of the instruction, once again rejecting efforts to narrow or eliminate it. This outcome reinforces a critical safeguard for physicians: that reasonable clinical judgment, exercised within the standard of care, remains protected.
Behind the scenes, this work requires significant time, expertise, and collaboration. The WSMA relies on specialized outside counsel and strong partnerships to ensure the physician voice is effectively represented in the courts.
The WSMA is grateful to our legal team and the lawyers who brought this case to our attention, as well as our partners in the brief. We are equally grateful for our partnership and support from the AMA Litigation Center, the Washington State Hospital Association, Physicians Insurance, and, in this case, the Washington Academy of Family Physicians and the Washington Chapter of the American College of Emergency Physicians. The engagement and support from these groups increased the impact of the amicus argument.
To learn more about how the WSMA decides to engage in amicus briefs or legal actions, visit the Legal page in the advocacy section of our website.
Jennifer Hanscom is WSMA’s CEO.