Fergen v. Sestero

Decision Date12 March 2015
Docket NumberNos. 88819–1,89192–3.,s. 88819–1
CourtWashington Supreme Court
PartiesDani FERGEN, individually and as personal representative of the Estate of Paul J. Fergen, and minors, Brayden Fergen and Sydney Fergen, individually, Petitioners, v. John D. SESTERO, M.D., individually, and as an employee/shareholder/agent of Defendant Spokane Internal Medicine and Spokane Internal Medicine, P.S., a Washington corporation, Respondents. Anil Appukuttan, Appellant, v. Overlake Medical Center, Puget Sound Physicians, PLLC, Alan B. Brown, M.D., Marcus Trione, M.D., and Tina Neiders, M.D., Respondents.

John Budlong, Law Offices of John Budlong, Tara L. Eubanks, The Budlong Law Firm, Edmonds, WA, for Appellant.

Mark Douglas Kamitomo, The Markam Group Inc. PS, Spokane, WA, George M. Ahrend, Ahrend Law Firm PLLC, Ephrata, WA, for Petitioner, and for Other Parties.

James B. King, Evans, Craven & Lackie, P.S., Spokane, WA, Mary H. Spillane, Fain Anderson, et al, John Coleman Graffe Jr., Johnson Graffe Keay Moniz, Christopher Holmes Anderson, Fain Anderson VanDerhoef PLLC, Lee Miller Barns, McIntyre & Barns PLLC, Seattle, WA, Philip Matthew Demaine, Attorney at Law, Tacoma, WA, for Respondent.

David P. Gardner, Winston & Cashatt, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, amicus counsel for Washington State Association for Justice Foundation.

Gregory Mann Miller, and Cindy G. Flynn, Carney Badley Spellman PS, Seattle, WA, amicus counsel for Washington State Medical Association, and Washington State Hospital Association.



¶ 1 “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 Wash.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.

¶ 2 This is a consolidated case of two medical malpractice suits. In each case, an exercise of judgment jury instruction similar to 6 Washington Practice: Washington

Pattern Jury Instructions: Civil

105.08 (6th ed. 2012) (WPI) was given.1 Both juries found in favor of the defendants and both plaintiffs assign error. We affirm the trial court's use of the exercise of judgment jury instruction in both cases. We hold that evidence of consciously ruling out other diagnoses is not required; a defendant need only produce sufficient evidence of use of clinical judgment in diagnosis or treatment to satisfy a trial judge that the instruction is appropriate. We reaffirm that this instruction is supported in Washington law and has not been shown to be incorrect or harmful.

A. Fergen v. Sestero

¶ 3 In November 2004, Paul Fergen found a small lump on his ankle that was causing slight discomfort. The next week he went to see Dr. John Sestero regarding the lump. Sestero completed a physical examination of the ankle and described the lump in his chart notes as a “slight nodule” that was “smooth, soft, and nontender.” Fergen Ex. (FE) P–1, at 12. Fergen was not experiencing any redness, swelling, or other abnormalities. Sestero assessed it as a ganglion cyst,2 ordered an X ray to make sure there were no structural defects, referred Fergen to an orthopedic specialist, and instructed him to follow up with his office as necessary. The X ray confirmed an absence of any problems in the ankle, but the radiologist noted, “If a soft tissue cyst is felt an ultrasound might be of help.” FE P–1, at 155. Sestero informed Fergen that the X ray was negative but did not order an ultrasound.

¶ 4 Approximately 13 months later, Fergen suffered a seizure. Thereafter, he was diagnosed with Ewing's sarcoma, a rare and aggressive form of metastatic cancer that originated in the lump on his ankle. After an extended course of treatment involving radiation and chemotherapy, Fergen died.

¶ 5 Sestero's records do not contain any indication that he entertained diagnoses of the lump other than a ganglion cyst. During trial, he testified as to his use of clinical judgment during his thought process that day, including why he believed it to be a cyst and why he ordered certain tests. He testified that “malignancy” is “a consideration anytime you see a lump,” although he never specifically said he considered it that day. 4 Fergen Verbatim Report of Proceedings at 609. Defense medical experts testified that the applicable standard of care did not require Sestero to order an ultrasound, biopsy, or other test to rule out cancer, or to make a referral to a specialist, or even to X ray the lump.

¶ 6 Dani Fergen, individually and as personal representative of the estate of Paul Fergen, as well as their minor children, Brayden Fergen and Sydney Fergen, individually filed suit against Sestero and his employer, Spokane Internal Medicine PS, alleging negligence and breach of the standard of care for failing to take the steps necessary to ensure that the lump on Fergen's ankle was, in fact, a benign ganglion cyst. Fergen says Sestero simply diagnosed it as a benign cyst without considering other diagnoses or doing anything to confirm or disprove that the lump was benign and thus there is no evidence of a conscious choice. Sestero countered that his diagnosis of a benign cyst inherently involved the exercise of clinical judgment since selection of one diagnosis necessarily entails the rejection of other possible, less likely, diagnoses.

¶ 7 The trial judge gave the jury instruction on a physician's exercise of judgment. It read, “A physician is not liable for selecting one of two or more alternative diagnoses, if, in arriving at a diagnoses a physician exercised reasonable care and skill within the standard of care the physician was obligated to follow.” Fergen Clerk's Papers at 3198. The jury found for the defendant, and Fergen appealed. The Court of Appeals affirmed. Fergen v. Sestero, 174 Wash.App. 393, 398, 298 P.3d 782 (2013). We granted Fergen's petition for review. Fergen v. Sestero, 178 Wash.2d 1001, 308 P.3d 641 (2013).

B. Appukuttan v. Overlake Medical Center

¶ 8 Anil Appukuttan suffered an injury to his left lower leg during a soccer game. Over the next four days he visited the Overlake Medical Center emergency department on five occasions for persistent and worsening pain and increasing firmness in his left leg. He saw multiple physicians, each of whom performed physical examinations. None measured the pressure in his leg to rule out compartment syndrome, as each believed their physical examinations indicated other diagnoses.3 Ultimately, Appukuttan was diagnosed with compartment syndrome on his left calf and a fasciotomy was performed. Unfortunately, he suffered permanent foot drop injury as a result of the failure to diagnose and treat his compartment syndrome.

¶ 9 Appukuttan filed this medical negligence action against Overlake Medical Center, Puget Sound Physicians PLLC, Alan B. Brown MD, Marcus Trione MD, and Tina Neiders MD, alleging negligent treatment during his hospital visits. At trial, Appukuttan offered testimony that the physicians violated the standard of care by failing to take the steps necessary to rule out or confirm compartment syndrome. Conversely, the physicians testified they tested for the symptoms during physical exams but, using their medical judgment, ruled it out as the diagnosis and followed other courses of treatment.

¶ 10 The trial court gave the exercise of judgment instruction that read as follows:

A physician is not liable for selecting one of two or more alternative courses of treatment or diagnoses, if, in arriving at the judgment to follow the particular course of treatment or make the particular diagnosis, the physician exercised reasonable care and skill within the standard of care the physician was obliged to follow.

Appukuttan Clerk's Papers at 23. The jury found for the defense, and Appukuttan appealed to the Court of Appeals, challenging the exercise of judgment instruction. He then moved to transfer the appeal to this court. We granted the transfer and consolidated it with Fergen's case.


¶ 11 A. Is the exercise of judgment jury instruction supported under Washington law?

¶ 12 B. Must there be substantial evidence of a conscious choice between alternate diagnoses before a judge may give the exercise of judgment jury instruction or may the judge use his or her discretion to give the instruction when he or she determines there is sufficient evidence to demonstrate the physician exercised professional judgment in making a diagnosis?

¶ 13 C. Should this court disapprove the instruction altogether in medical malpractice cases as incorrect and harmful?


¶ 14 Whether to give a certain jury instruction is within a trial court's discretion and so is reviewed for abuse of discretion. Christensen v. Munsen, 123 Wash.2d 234, 248, 867 P.2d 626 (1994) ; Seattle W. Indus., Inc. v. David A. Mowat Co., 110 Wash.2d 1, 9, 750 P.2d 245 (1988) ; Thomas v. Wilfac, Inc., 65 Wash.App. 255, 264, 828 P.2d 597 (1992)(citing Petersen v. State, 100 Wash.2d 421, 440, 671 P.2d 230 (1983) ). The propriety of a jury instruction is governed by the facts of the particular case. Housel v. James,

141 Wash.App. 748, 759, 172 P.3d 712 (2007). 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. Id. at 758, 172 P.3d 712 ; Keller v....

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