¶36 (dissenting) — A claim of medical malpractice sounds in negligence. The plaintiff must prove the health care provider failed to exercise the “care, skill, and learning expected of a reasonably prudent health care provider.” RCW 7.70.040(1). Instructing the jury that a physician is not liable for exercising judgment in choosing among alternative courses of treatment or diagnoses adds nothing to the explication of this burden. As the majority notes, “ ‘the exercise of professional judgment is an inherent part of the care and skill involved in the practice of medicine.’ ” Majority at 806 (quoting Miller v. Kennedy, 91 Wn.2d 155, 160, 588 P.2d 734 (1978) (Miller III)). The *813instruction thus tells the jury no more than to excuse from liability a doctor who exercises reasonable care.
¶37 Courts have long recognized that giving a supplemental instruction on the exercise of judgment is unnecessary. And, the instruction has been criticized as slanted, argumentative, and confusing to jurors. The majority acknowledges courts are not bound to give the instruction, as its absence does not preclude the defense from arguing its theory of the case. See id. at 808 & n.4. But, the majority offers no guidance for trial judges to decide when to give the instruction, suggesting that “even when appropriate it is not always required.” Id. at 808. This case presents our first clear chance to end the confusion and unfairness engendered by the exercise of judgment instruction. We should take this opportunity to join a growing number of courts across the nation and jettison this problematic instruction. I respectfully dissent.
ANALYSIS
¶38 The majority’s approval of the exercise of judgment instructions given in these cases rests on the belief that it “is supported in Washington law and has not been shown to be incorrect or harmful.” Id. at 799.1 disagree with both of these propositions. This type of instruction has long been criticized, including by this court, and efforts to temper its language have not remedied its core deficiencies. I will first address the history of the exercise of judgment instruction, which demonstrates that it is argumentative and confusing, and then turn to why this court should exercise its authority to reject it.
The “Exercise of Judgment” Instruction Is Rooted in the Discredited “Error in Judgment” Instruction and Has Not Been Broadly Endorsed in Washington
¶39 The exercise of judgment instruction is a relic of a discredited theory of liability, one that sought to hold a *814doctor to a lesser duty than any other person. It is a refinement of the “error in judgment” instruction, which required a jury to consider whether a health care provider exercised judgment in “good faith.” Dinner v. Thorp, 54 Wn.2d 90, 97-98, 338 P.2d 137 (1959). In our earliest review of the error in judgment instruction, we rejected the good faith language, finding it misleading in suggesting good faith could absolve a physician of liability, irrespective of negligence. Id. at 98.
¶40 We considered a different iteration of the error in judgment instruction, minus the good faith language, in Samuelson v. Freeman, 75 Wn.2d 894, 454 P.2d 406 (1969). The instruction advised the jury that “if, having properly informed himself [of a patient’s condition], [the physician] reache [d] a wrong conclusion, he is not liable for errors in judgment.” Id. at 896. We did not rule on whether the instruction standing alone was an incorrect statement of law; instead, we held that when given alongside several other instructions “on the subject of the standards of care and skill required of medical practitioners,” id., taken as a whole the instructions were “argumentative,” “overemphasized the physician’s immunities,” and “markedly diminished his responsibilities.” Id. at 897. Ordering a new trial, we cautioned against giving supplemental instructions that so emphasized one party’s position over the other’s as to be “palpably unfair.” Id. We noted this problem was unlikely to recur on remand in light of newly published pattern instructions that defined the standard of care “with fairness and reasonable brevity.” Id. Significantly, the pattern instructions at the time did not include an error of judgment instruction, which was added in 1990. 6 Washington Practice: Washington Pattern Jury Instructions: Civil 105.08 cmt. at 106-08 (3d ed. Supp. 1994) (WPI) (explaining that while the main volume acknowledges the existence of the instruction but offers no recommended language, the committee in *815the 1990 pocket part first offered pattern language).5 We returned to the error in judgment instruction in Miller III, 91 Wn.2d 155.6 There we considered language instructing the jury that “a physician is not liable for an honest error of judgment where he or she exercised the requisite degree of care and skill in arriving at the judgment.” Id. at 160. We observed that “[c] ertainly Dr. Kennedy was called upon to exercise his professional judgment in performing the delicate surgery of a kidney biopsy” and held the trial court did not err in giving the instruction. Id. We later disapproved of the “honest error” language to the extent that it “ ‘muddle [d] the jury’s understanding of the burden imposed upon a plaintiff in a malpractice action’ ” by suggesting the plaintiff must prove a “ ‘ “dishonest mistake” ’ ” or “ ‘ “bad faith error.” ’ ” Watson v. Hockett, 107 Wn.2d 158, 165, 727 P.2d 669 (1986) (quoting Teh Len Chu v. Fairfax Emergency Med. Assocs., 223 Va. 383, 386, 290 S.E.2d 820 (1982)). Absent the offending language, we noted, such an instruction could be given in a proper case, but it must be given with caution. Id. In particular, it should not be given unless the evidence shows the physician exercised reasonable care and was in fact “confronted with a choice among competing therapeutic techniques or among medical diagnoses.” Id.
¶41 In Christensen v. Munsen, 123 Wn.2d 234, 249, 867 P.2d 626 (1994), we rejected a claim that the error of judgment instruction constituted a comment on the evidence but again reiterated that the instruction applies only *816in the limited circumstance when a health care provider chooses among acceptable alternatives. We also noted that it “supplements the standard of care and can only be given with a proper standard of care instruction.” Id.
¶42 As this brief overview makes clear, our precedent can hardly be described as a ringing endorsement of the error or exercise of judgment instruction. In just a handful of cases, we have examined the most argumentative aspects of earlier versions of the instruction, with the result that the instruction has been tweaked, whittled, revised, and prodded into its current form. We have not examined any version of this instruction in 20 years and have never directly considered the “exercise of judgment” instruction at issue in these cases. While we noted the seeming acceptance of the “error in judgment principle” in 1986, Watson, 107 Wn.2d at 165, we have not had an opportunity to consider cases since then that show a trend toward rejecting it. See, e.g., Pleasants v. All. Corp., 209 W. Va. 39, 543 S.E.2d 320, 331 (2000) (reversing West Virginia precedent and collecting cases from other states to show that “courts increasingly are veering away from the use of these instructions based on the potential for jury confusion”).7
¶43 I share the concern expressed by our Court of Appeals, which in 2001 commented:
If the Supreme Court chooses to revisit the line of cases that bind us, it seems fair to add that we see no independent reason for giving a separate “error of judgment” instruction. It appears to us that the standard instructions are adequate to allow argument on the topic without undue emphasis or risk of confusion. In this sense the “error of judgment” instruction adds little while risking unnecessary confusion.
Ezell v. Hutson, 105 Wn. App. 485, 491, 20 P.3d 975 (2001); see also Fergen v. Sestero, 174 Wn. App. 393, 398, 298 P.3d *817782 (2013) (deferring to this court “the task of redefining when the instruction should apply, if at all”). For the reasons more fully explained below, we should take this opportunity to disapprove of giving a supplemental exercise of judgment instruction in medical negligence cases.
The Exercise of Judgment Instruction Is Confusing, Unfair, and Inconsistent with the Modern Practice of Giving Only Basic, Neutral Instructions
¶44 Jurors have a difficult job. We expect them to understand and apply legal principles served up to them “in a brief formal incantation.” Joseph H. King, Jr., Reconciling the Exercise of Judgment and the Objective Standard of Care in Medical Malpractice, 52 Okla. L. Rev. 49, 64 (1999). “The plight of jurors is even worse than one writer’s analogy to a law school class in which the entire course consisted of a verbatim reading of the rules followed by an examination. As another writer states, ‘[i]t is all too easy for those of us who are lawyers or judges to forget what the world looked like before we entered law school.’ ” Id. at 64-65 (alteration in original) (footnotes omitted). Appreciating the difficulties jurors face, the art of instructing the jury should focus on identifying a basic, neutral set of instructions.
¶45 Supplemental instructions generally cut against this goal. In many areas of the law this court has rejected instructions — some quoting verbatim from court opinions— that emphasized one party’s point of view. See, e.g., Turner v. City of Tacoma, 72 Wn.2d 1029, 1034, 435 P.2d 927 (1967) (describing parties’ competing supplemental instructions as “slanted” and stating “[t]hat we may have used certain language in an opinion does not mean that it can be properly incorporated into a jury instruction”). We have long ascribed to the philosophy that when it comes to instructing a jury, less is more. Laudermilk v. Carpenter, 78 Wn.2d 92, 100, 457 P.2d 1004 (1969). As the court in Lauder-milk explained:
*818It has, for some years, been the policy of our Washington system of jurisprudence, in regard to the instruction of juries, to avoid instructions which emphasize certain aspects of the case and which might subject the trial judge to the charge of commenting on the evidence, and also, to avoid slanted instructions, formula instructions, or any instruction other than those which enunciate the basic and essential elements of the legal rules necessary for a jury to reach a verdict. Under this theory, counsel has been free, and, indeed, has the responsibility, to argue to the jury, the refinements of these rules within the factual framework of his case. Detailed instructions, such as those proposed here, though once common, are now deemed to be instructions which “point up,” “underline,” or “buttress” portions of counsel’s argument.
Id. at 100-01.
¶46 In every case to have considered an error of judgment instruction, this court has recognized this type of instruction serves to emphasize the defendant’s theory of the case. It has been variously described as unnecessary, misleading, confusing, and argumentative. At best, the instruction is unhelpful, simply restating the standard of care instruction, but from the defendant’s perspective.8 At worst, it misdirects a jury away from the question of reasonable care to focus attention on whether the health care provider made a choice. It tempts the jury into viewing professional or clinical judgment as a freestanding consideration in the question before it, akin to an affirmative defense.9 And insofar as “[t]he exercise of professional judgment is an inherent part of the care and skill involved *819in the practice of medicine,” Miller III, 91 Wn.2d at 160, the instruction may lead juries to conclude a defensible choice is synonymous with a nonnegligent choice.
¶47 The cases before us demonstrate how this instruction can misdirect a jury’s consideration of a plaintiff’s claim. The claims in these cases were not premised on negligence in choosing diagnosis (or treatment) A over diagnosis (or treatment) B. The plaintiffs claimed the physicians fell below a reasonable standard of care in failing to do steps 1, 2, 3, 4, and 5 before choosing A over B. But the exercise of judgment instruction bolstered Dr. Sestero’s argument that he was not negligent in choosing to disregard a diagnosis of cancer and Appukuttan’s medical team’s argument that it was not negligent in choosing to rule out compartment syndrome. For example, in closing argument, Dr. Sestero’s counsel told the jury, “I want to talk to you a little bit about standard of care and judgment. . . . [Plaintiff’s experts] are willing to come and criticize Dr. Sestero for not considering this nub in the ankle to be a cancer.” 12 Verbatim Report of Proceedings (VRP) (Fergen) at 2197-98. Counsel discussed the exercise of judgment instruction:
And that gets to this issue of judgment, the judgment instruction, I believe its Instruction Number 18 that Judge Sypolt has given you. The law is that a physician is not liable for an error in judgment in making a diagnosis if, in arriving at that judgment, he followed an appropriate standard of care. So in the judgments that Dr. Sestero did, you have to reflect on this: Did he blow the patient off according to the contemporaneous record? Not at all.
Id. at 2203.
¶48 On rebuttal, Fergen’s counsel attempted to push back against this focus on a choice between diagnoses:
I’m not asking you to hold Dr. Sestero accountable for discovering Ewing sarcoma. That’s never been a part of this case, and *820they have tried very hard to leave you with that impression. We’re not saying that. We’re just saying he should have done more than he did.
Id. at 2217. In the end, the jury was left to sort out the parties’ disagreement by reading the instructions, which included a particular instruction focusing on the physician’s selection of “one of two or more alternative diagnoses.” Clerk’s Papers at 3198 (Instruction 18).
¶49 Similarly, in Appukuttan’s case, defense counsel emphasized the exercise of judgment instruction, arguing:
This instruction number 10,1 want you to review that too as well because there are two different diagnoses. There was all over the records you’ll see the diagnosis of hematoma; it’s been talked about at length. And what this says, if there are two reasonable ways to pursue something, the judge has instructed you, it’s in the instructions, a physician is not liable for pursuing one of those or a treatment option, even if you believe in hindsight that the patient had compartment syndrome at the time, as long as it is reasonable, then he is not liable.
VKP (Appukuttan) (Dec. 3, 2012) at 72. To be clear, I do not fault counsel for making arguments that focused on the defense theory of the case. It was their absolute right, indeed obligation, to do so. But the slanted focus of the exercise of judgment instruction gave the defense theory an unfair advantage, essentially stamping it with the judge’s approval.
¶50 In addition to being slanted and argumentative, the exercise of judgment instruction potentially confuses the jury with respect to the factual issues it must resolve. Based on the instruction, a jury could believe it does not need to resolve disputes over the standard of care so long as the evidence shows the health care providers chose to follow one standard over another. After all, there is no division in the presentation of the evidence or in the closing arguments between disputes over the standard of care and questions of professional judgment. So, if the experts disagree over what *821the health care provider should have done, and the evidence shows the provider chose option A over option B, the instruction suggests there is no liability.
¶51 Of course, we can never know exactly how the exercise of judgment instruction affected deliberations in a particular case. The jury’s thought process inheres in its verdict. But, it is important to recognize the risk of confusion this instruction presents in any medical negligence case, including these. The majority cannot elucidate a workable rule for a trial judge to decide when the risk of giving this instruction is too great. The majority acknowledges that we have said the instruction must be given “ ‘with caution.’ ” Majority at 805 (quoting Watson, 107 Wn.2d at 165). It explains that this court has attempted to limit the introduction of the instruction to “situations where the doctor uses judgment to choose between alternative treatments or diagnoses.” Id. (citing Miller III, 91 Wn.2d at 160). But at the same time, the majority characterizes this requirement as one that must be broadly construed, suggesting it is “a low bar that must be satisfied for the court to hold that a physician made a choice between treatments or diagnoses.” Id. at 807. Nothing more must be shown than that the health care provider was engaged in an “ ‘exercise of professional judgment’ in treatment or diagnosis.” Id. at 808 (quoting Miller III, 91 Wn.2d at 160). The Miller III court acknowledged that the exercise of professional judgment is simply a physician practicing medicine. 91 Wn.2d at 160 (“The exercise of professional judgment is an inherent part of the care and skill involved in the practice of medicine.”). If there is a backstop in the majority opinion to giving this instruction, I cannot divine it.10 In fairness to the majority, its inability to articulate a workable rule is merely symptomatic of the basic infirmity of the *822exercise of judgment instruction. Perhaps the only saving grace for trial judges is the standard of review. While we have not found an abuse of discretion where a trial court gave the instruction, neither have we found reversible error where the trial court refused to do so. See Watson, 107 Wn.2d at 167.1 believe the only way to achieve consistency is to disapprove of this instruction entirely.
The Court Should Categorically Disapprove of the Exercise of Judgment Instruction
¶52 Preliminarily, I am not convinced that our authority to reject the giving of an error or exercise of judgment instruction depends on meeting the “incorrect and harmful” test. In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970) (announcing the test for overruling stare decisis). Standards for instructing juries evolve over time, and our precedent cannot be characterized as broadly endorsing this instruction. No one contends that the exercise of judgment instruction is a misstatement of law or that the law of medical negligence itself must be changed. Rather, we are asked to consider the risks attendant to this instruction and to provide guidance to lower courts on how to fairly instruct juries in medical negligence cases.
¶53 Even if we must overrule precedent in order to reject this instruction, it is not difficult to meet the incorrect and harmful test here. This court in Stranger Creek emphasized that precedent “is not an absolute impediment to change” and that “stability should not be confused with perpetuity.” Id. As explained, the exercise of judgment instruction is slanted, argumentative, and confusing to juries. Our precedent has consisted mainly of partial rejections of the worst language in earlier versions of the instruction. Since our last consideration of the instruction 20 years ago, several courts have reconsidered its value and have veered away from its use. Additionally, our legislature has framed the elements of medical negligence in RCW 7.70.030 and .040, *823providing even stronger reason for following the modern practice of eschewing supplemental instructions in favor of simply outlining the statutory elements.11 To the extent that prior cases have refused to find error in either the giving or the refusal to give an exercise of judgment instruction, the existing precedent merely perpetuates an inconsistent application of the law at the trial court level and provides absolutely no guidance.
¶54 Our precedent is harmful for many of the same reasons, but also for the fact that it has resulted in the creation of a pattern instruction that we should expect will be requested in most medical negligence cases. Our admonition that the instruction should be given with caution has proved to be futile and will be even less effective in light of the “low bar” set by the majority. Majority at 806-07. Trial judges will rightly complain that while we continue to wring our hands about the risks of giving an exercise of judgment instruction, we offer little help in deciding when it should and should not be given.
¶55 Finally, I believe it shows a harmful effect of this type of instruction: that it serves to bolster one party’s theory of the case. We are told that the instruction is almost always associated with a defense verdict. See Reply Br. of Appellant (Appukuttan) at 10 (arguing the instruction “is tantamount to directing a defense verdict”). While we do not have the benefit of a scientific study measuring the effects of the error of judgment instruction on deliberating juries, we should consider the concerns raised in the reported cases in weighing the costs and benefits of continuing to allow this instruction. I believe the time has come to *824recognize that the risks of misdirecting or confusing the jury outweigh any possible benefit to giving this slanted, argumentative instruction. I would be equally dubious of any instruction that overemphasized the plaintiff’s point of view, by “‘point [ing] up,’ ‘underlining],’ or ‘buttressing]’ portions of counsel’s argument.” Laudermilk, 78 Wn.2d at 101. We should send the clear message to trial courts that jury instructions should enunciate the basic legal elements of medical malpractice and that WPI 105.08 is not an appropriate “supplement” to the instructions.
The Erroneous Instruction in These Cases Requires Reversal
¶56 The remaining question is whether the instructions given in these cases created a sufficient risk of prejudice as to require reversal. Fergen and Appukuttan argue for reversal on the ground that the instructions were legally erroneous and unsupported by the evidence. Pet’rs’ Suppl. Br. (Fergen) at 19-20; Br. of Appellant (Appukuttan) at 24. Respondents’ counsel in Fergen notes that the prejudice recognized in prior versions of the instruction that used terms such as “honest error” is not present in the current language. Br. of Resp’ts (Fergen) at 42-43.
¶57 Courts that have disapproved of use of an exercise of judgment instruction have separately examined whether giving the instruction in the particular case resulted in reversible error. See Pleasants, 543 S.E.2d at 330-32 & 330 n.27 (finding error harmless in light of other instructions correctly stating the law; collecting similar cases); Yates v. Univ. of W. Va. Bd. of Trs., 209 W. Va. 487, 549 S.E.2d 681, 691-92 & n.19 (2001) (finding reversible error based on reasonable probability the instruction influenced jury’s verdict; collecting similar cases). The question is not particularly well developed in this case, as the briefing focuses on the merits of the exercise of judgment instruction itself. Certainly, the erroneous instruction did not stand in isola*825tion; it supplemented proper standard of care instructions. Thus, if the test is simply whether the instructions as a whole properly advised the jury of the relevant law, they did.
¶58 On the other hand, as in the Yates case, there is a reasonable probability that the exercise of judgment instruction influenced the jury’s verdict insofar as it incorrectly focused attention away from the general negligence standard, and its effect was amplified by several references to it in closing argument. Cf. Yates, 549 S.E.2d at 691 & n.18. However, it did not contain the loaded phrase “ ‘reasonable and honest mistake of judgment’ ” that marred the West Virginia instruction. Id. at 690.
¶59 While the question of prejudice presents a close call in these cases, I believe it is unrealistic to conclude that the error of judgment instruction did not influence the jury verdicts. Looking at the instructions as a whole is not itself a sufficient way to measure prejudice when we are dealing with a supplemental instruction. Such instructions do not undermine the proper statements of the law in the basic instructions, but they overemphasize one party’s point of view. Given the risks inherent in this slanted, argumentative instruction, it is reasonably probable that the instruction confused the jury as to the nature of the plaintiffs’ claims as well as their burden in proving negligence. As described above, it clearly bolstered defense counsel’s arguments in closing that focused on the different possible diagnoses. While we can never know if the jury would have reached the same verdict in the absence of the erroneous instruction, neither can we say it did not play a significant role in these trials. Accordingly, I believe giving the instruction constituted reversible error and would remand for new trials.
CONCLUSION
¶60 We have long recognized the potential for mischief in the exercise of judgment instruction, but our approach to *826date has been merely to soften its language. It remains problematic and continues to evade our admonition that it be used “with caution.” We should join those courts that have recognized the risks of this instruction outweigh any benefits, and disapprove of once and for all the giving of this instruction. I respectfully dissent.
C. Johnson, Wiggins, and González, JJ., concur with Stephens, J.Motions for reconsideration denied June 3, 2015.
Today the “exercise of judgment” instruction appears as WPI 105.08. See 6 Washington Practice: Washington Pattern Jury Instructions: Civil (6th ed. 2012). The pattern instructions do not carry the force or weight of decisional law and indeed are frequently amended or revised in response to decisional law or statute. See id. cmt. at 612 (explaining that the error of judgment instruction was reformulated in response to decisional law); see also State v. Austin, 59 Wn. App. 186, 194 n.4, 796 P.2d 746 (1990) (encouraging the committee on jury instructions to adopt language reflecting a change in a governing statute).
Miller I is the Court of Appeals decision Miller v. Kennedy, 11 Wn. App. 272, 522 P.2d 852 (1974), reversing the trial court’s decision. Miller II is our per curiam affirmation of the Court of Appeals decision, Miller v. Kennedy, 85 Wn.2d 151, 530 P.2d 334 (1975). Miller III is our review of the trial court’s decision following the remand from the Court of Appeals.
The instruction at issue in Pleasants included the term “honest error,” and many of the cases cited in the opinion rejected instructions with the type of “good faith” language this court has criticized. See 543 S.E.2d at 329-31 & 330 n.27.
We have recognized that the instruction is not necessary for a defendant in a civil malpractice case to argue a defense theory; it is at most a supplementary instruction, and a trial judge does not commit error by refusing to give it. See Seattle W. Indus., Inc. v. David A. Mowat Co., 110 Wn.2d 1, 9, 750 P.2d 245 (1988); WPI 105.07 cmt. at 611 (6th ed. 2012). The majority acknowledges this, majority at 808 n.4, but at the same time suggests a defendant may be entitled to the exercise of judgment instruction, id. at 810. The problem is, the majority never tells us when this will be the case.
Underscoring this proposition is amici Washington State Medical Association (WSMA) and Washington State Hospital Association’s (WSHA) insistence that the *819exercise of judgment is a “defense.” Br. of Amici Curiae WSMA & WSHA at 14. An affirmative defense admits the elements of the claim but offers an excuse or justification for the act.
The majority suggests the instruction would be inappropriate in a challenge that focuses on the inadequate skills of the physician. Majority at 808. If this narrow subset of cases is the only category in which the instruction would not apply, I still cannot agree that the instruction can be given in a manner faithful to our directive that it he applied with caution.
I do not agree with Appukuttan’s suggestion that RCW 7.70.030 and .040 “preempt” WPI 105.08 or that the instruction is inconsistent with the statute. See Br. of Appellant (Appukuttan) at 11-18. My point is simply that the codification of the elements of a medical negligence claim reinforces the value of limiting jury instructions to those that provide the legal framework for the jury’s deliberations. See Laudermilk, 78 Wn.2d at 100 (cautioning against giving instructions “other than those which enunciate the basic and essential elements of the legal rules necessary for a jury to reach a verdict”).