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Case Law Update: “Exercise of Judgment” Instruction Affirmed for Medical Negligence Action

Posted Tuesday, April 23, 2013 by Christopher L. Thayer

alt textIn Fergen v. Sestero, (No. 30523-6-III) the Washington Court of Appeals, Division III reviewed the appropriateness of the “exercise of judgment” standard pattern jury instruction. In Fergen, Mr. Fergen presented to Dr. Sestero with an asymptomatic lump on his ankle. Dr. Sestero diagnosed it as most likely a ganglion cyst; and after reviewing an X-ray film advised Mr. Fergen that the X-Ray was “negative” but that he should consult with an orthopedist if the lump grew bigger or starting causing pain. Thirteen months later, Mr. Fergen was diagnosed with a rare form of malignant cancer, which had originated in his ankle, and died shortly thereafter. Mr. Fergen’s spouse, as the administrator of his estate, filed suit for medical negligence.

At trial, Dr. Sestero testified that he considered malignancy when he had to decide the most likely diagnosis for the lump on Mr. Fergen’s ankle. It appears, however, that there was no indication in the medical chart, that malignancy was even considered as a possibility. Dr. Sestero’s expert also testified that Dr. Sestero faced a choice between at least two differential diagnoses, one very likely and the other very unlikely, and that he acted within the standard of care. The following pattern jury instruction was submitted:

A physician is not liable for selecting one of two or more alternative diagnoses, if, in arriving at a diagnosis a physician exercised reasonable care and skill within the standard of care the physician was obligated to follow.

Ms. Fergen objected to this instruction, noting that there was not “substantial evidence” to demonstrate that Dr. Sestero considered more than one diagnosis – as the medical record only reflected consideration of a benign cyst. The trial court allowed this instruction and the jury rendered a verdict in favor of the defense. Ms. Fergen appealed. Although the Court of Appeals noted that this “exercise of judgment” instruction should only be used “with caution”, it held that the trial court had properly exercised its discretion in allowing this instruction. The Court of Appeals held that the testimony of Dr. Sestero and his expert constituted sufficient evidence to support the jury instruction, notwithstanding the fact that there was no mention in the chart of any consideration of possible alternative diagnoses. For victims of potential medical negligence, this case may make their cases even harder to prove – as they cannot rely on the medical record alone to preclude use of the “exercise of judgment” instruction.

For more information, contact Christopher Thayer at (206) 805-1494.

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