Fergen v. Sestero

Fairhurst, J.

¶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 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.

¶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 courts’ 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 produce only 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.

I. FACTS AND PROCEDURAL HISTORY

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 Wn. App. 393, 398, 298 P.3d 782 (2013). We granted Fergen’s petition for review. Fergen v. Sestero, 178 Wn.2d 1001, 308 P.3d 641 (2013).

B. Appukuttan v. Overtake 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.

II. ISSUES PRESENTED

¶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?

III. STANDARD OF REVIEW

¶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 Wn.2d 234, 248, 867 P.2d 626 (1994); 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) (citing Petersen v. State, 100 Wn.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 Wn. 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; Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002); Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P.3d 289 (2012).

¶15 Legal errors injury instructions are reviewed de novo .Anfinson, 174 Wn.2d at 860. An erroneous instruction is reversible error only if it is prejudicial to a party. Id. 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. Id. (citing Keller, 146 Wn.2d at 249-50); Ezell v. Hutson, 105 Wn. App. 485, 492, 20 P.3d 975 (2001). The party challenging an instruction bears the burden of establishing prejudice. Griffin v. W. RS, Inc., 143 Wn.2d 81, 91, 18 P.3d 558 (2001); Miller v. Yates, 67 Wn. App. 120, 125, 834 P.2d 36 (1992).

IV. ANALYSIS

A. Washington law supports the use of an exercise of judgment instruction in appropriate medical malpractice cases

¶16 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); 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).

¶17 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.

¶18 Our cases consistently state that the error in judgment instruction is a useful tool to remind juries of the fallibility of medicine. Watson, 107 Wn.2d at 167 (“ ‘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’ ” (emphasis omitted) (quoting Jim M. Perdue & Read Khoury, The Law of Texas Medical Malpractice: Second Edition, 22 Hous. L. Rev. at xvii, 60 (1985))). But they have also held that this instruction is not appropriate in every medical malpractice action, only those based in negligence where the doctor faced a diagnostic or treatment choice that called on his or her judgment. Id. at 165 (“This ‘error in judgment’ instruction is, however, to be given with caution.”). It may be given to supplement a general instruction on the proper standard of care only when there is evidence that the physician complied with that standard of care and skill required by the circumstances. Christensen, 123 Wn.2d at 238; Miller I, 11 Wn. App. at 280; Watson, 107 Wn.2d at 165. While “[t]he exercise of professional judgment is an inherent part of the care and skill involved in the practice of medicine,” this instruction is limited to situations where the doctor uses judgment to choose between alternative treatments or diagnoses. Miller III, 91 Wn.2d at 160; Watson, 107 Wn.2d at 165. This instruction is well integrated into the system of jury instructions in Washington.

¶19 Further, this instruction is not preempted by chapter 7.70 RCW. This court has previously rejected this argument in both Watson and Gerard. Watson, 107 Wn.2d at 166 (court held that the statutory standard of care change from an average practitioner to a reasonably prudent practitioner did not affect the use of supplemental jury instructions); Gerard v. Sacred Heart Med. Ctr., 86 Wn. App. 387, 388, 937 P.2d 1104 (1997) (court affirmed the use of the exercise of judgment jury instruction despite the argument it was contrary to the objective standard of care established in RCW 7.70.040). The exercise of judgment instruction is a supplemental instruction that cannot be given separate from the basic standard of care instruction. See Christensen, 123 Wn.2d at 249 (citing Watson, 107 Wn.2d at 166). It is used to clarify the general standard of care; it does not alter it or add any additional elements for a plaintiff to prove. We follow this clear precedent and again approve of the use of the exercise of judgment jury instruction here.

B. Case law supports a broad interpretation of when a physician is making a choice between reasonable alternative treatments or diagnoses

¶20 Petitioners next argue that in order for this instruction to be given, the physician must present clear evidence of a conscious choice between alternate diagnoses or treatments. 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. Neither of these consolidated cases presents an issue regarding the first requirement because that was the subject of expert testimony at each trial and there was substantial evidence to support the defendant-physicians’ assertions of competency.

¶21 The issue for this court involves the second requirement — what evidence is sufficient to prove that the physician made a choice in the treatment or diagnosis to justify this instruction? Our cases have found the evidence to be sufficient to give the instruction when the physician used judgment in making a diagnostic choice or choosing a treatment plan. In the second appeal of Miller, the court held that “the exercise of professional judgment is an inherent part of the care and skill involved in the practice of medicine.” Miller III, 91 Wn.2d at 160. It held that “performing the delicate surgery of a kidney biopsy” used the physician’s judgment, so the situation was one entitled to the instruction. Id.

¶22 In Christensen, a woman with eye disease became legally blind under the care of an ophthalmologist and sued, claiming he breached the standard of care. 123 Wn.2d at 237-38. In analyzing the error of judgment instruction, the court noted that there were three defense experts who testified that the ophthalmologist acted within the standard of care, but that they each would have treated the woman’s eye disease differently. Id. at 249. The court considered this to be sufficient evidence that the defendant had a choice of therapeutic techniques within the proper standard of care and used his judgment to choose which course of treatment to take. The court held that the instruction was appropriate. Id.

¶23 Turning to some of the decisions by the appellate courts, we consistently see a low bar that must be satisfied for the court to hold that a physician made a choice between treatments or diagnoses. The facts of Vasquez v. Markin, 46 Wn. App. 480, 481-82, 489, 731 P.2d 510 (1986), recite a course of treatment by a gynecologist, including the choice between interrupting one surgery to perform another or asking another physician to perform the other surgery. The court concluded the physician clearly exercised judgment. Id. at 489 (“Here, Dr. Markin presented evidence of reasonable care, and was confronted with the situation where he had to make a choice.”). In Thomas, 65 Wn. App. at 258, a woman working with pesticides developed flu-like symptoms and went to the emergency room where the physician “ruled out pesticide poisoning and diagnosed asthma.” Without further discussion of the physician’s judgment, the court held this was sufficient to demonstrate the instruction was warranted under these facts. Id. at 264. In Gerard, 86 Wn. App. at 389, the court held that a physician’s decision whether to use restraints on a patient is a choice of treatment supporting the instruction. In Ezell, the judgment exercised by the physician was deciding to treat a postoperation infection with a particular type of antibiotic when a different antibiotic was needed to clear up the infection. 105 Wn. App. at 488-89. The court approved of the use of this instruction under these facts. Id. In Housel, a woman developed an abscess months after a hernia repair and she sued the surgeon who performed the repair. 141 Wn. App. at 752-53. Despite a reiteration of the cautions of Watson, the court held the instruction was proper, saying, “[T]he record discloses that Dr. James was presented with at least three treatment choices: additional testing, watchful waiting, or surgical repair of the hernia.” Id. at 760.

¶24 This, albeit scattered, case law nonetheless demonstrates the court interpreting very broadly the requirement that a “doctor is confronted with a choice among competing therapeutic techniques or among medical diagnoses.” Watson, 107 Wn.2d at 165. Even read broadly, this instruction is not proper in every medical malpractice case — even when appropriate it is not always required.⁴ It should be given only when the doctor chooses between reasonable, medically acceptable options; it should not be given simply if a physician is practicing medicine at the time. It is not appropriate in other malpractice actions such as one focused on the inadequate skills of the physician. We require the physician to make a choice for this instruction, but we interpret that phrase to encompass any “exercise of professional judgment” in treatment or diagnosis. Miller III, 91 Wn.2d at 160.

¶25 Sestero made many choices that necessarily involved his judgment. He had a choice between referring Fergen to a specialist or not. He had a choice between ordering an X ray or not. He had a choice between ordering follow up testing or not. Expert testimony showed that all of those choices were within the standard of care based on a one-week-old, small, soft lump on an ankle. Sestero testified that the lump’s being cancerous was so exceedingly rare that it was far down the list of possible ailments and he is not sure if he considered it as an actual possibility. This indicates that he considered various diagnoses and made a choice between them using his medical judgment — he just chose wrong. This is in line with all the guidelines from Washington case law regarding a choice in treatment.

¶26 Similarly, the physicians in Appukuttan made diagnostic choices based on their medical judgment. They testified regarding the details of their physical examinations. They looked for the warning signs and symptoms of compartment syndrome and testified that in their judgment, they did not find them. They made a choice in whether to perform the additional pressure test but determined it was unnecessary because their physical examination did not indicate that compartment syndrome was the diagnosis, and instead another problem was likely the cause of his symptoms.

¶27 Misdiagnosis and the inexactness of medicine is not the basis for liability without a deviation from the proper standard of care. Both of these cases present a proper situation for the instruction. The juries needed to focus on whether the physicians failed to exercise the requisite degree of skill, care, and learning in arriving at the diagnosis, and this instruction aided in that determination. In each of these cases the instruction was supported by sufficient evidence, and so the trial judges did not abuse their discretion by deciding to give the instruction to the juries.

C. This court should not overrule precedent and eliminate this instruction

¶28 Finally, Fergen and Appukuttan ask us to overrule existing precedent and abandon the use of this jury instruction altogether. To abandon established precedent, there must be “ ‘a clear showing that an established rule is incorrect and harmful.’ ” State v. Devin, 158 Wn.2d 157, 168, 142 P.3d 599 (2006) (internal quotation marks omitted) (quoting Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930 (2004)). Fergen and Appukuttan rely on multiple policy arguments to demonstrate that the instruction should be abandoned.

¶29 They argue this supplemental instruction is unnecessary since the jury is already given an instruction on the basic standard of care and giving an additional instruction creates a risk of confusion regarding the standard of care to apply in the case. They claim that leaving it up to the discretion of a judge whether to give the instruction results in “unpredictability, inconsistency, and one-sidedness.” Reply Br. of Appellant (Appukuttan) at 8. And finally, they argue this instruction results in an unfair advantage to defendants in medical malpractice cases. Fergen and Appukuttan argue that giving this instruction is tantamount to a directed verdict because every medical case necessarily involves judgment, as is shown by the fact that in reported decisions when the instruction is given, a defense verdict results. Id. However, none of these arguments persuade us that the current system and precedent is sufficiently incorrect and harmful to justify eliminating this instruction.

¶30 Similarly, the dissent asserts that the instruction is incorrect and harmful because it supplements neutral instructions with an instruction that contains one side’s theory of the case. Dissent at 817-19. Yet, instructions that inform the jury of a party’s theory of the case are not necessarily harmful or incorrect. If a party’s theory of the case is supported by substantial evidence, he or she is entitled to have the court instruct the jury on it. Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 266-67, 96 P.3d 386 (2004).

¶31 The dissent contends that the instruction “misdirect [s] a jury’s consideration of a plaintiff’s claim” and confuses the jury. Dissent at 819. According to the dissent, the instruction focuses the jury on the physician’s choice rather than the plaintiff’s claim that the physician failed to take the proper steps before making the choice. Id. at 818-19. In addition, the dissent asserts that the instruction could make the jury believe it does not need to resolve factual issues regarding the standard of care. Id. at 820.

¶32 We have often examined this system and repeatedly affirmed the utility of having additional instructions, including the exercise of judgment instruction, supplement the basic standard of care instruction in medical malpractice cases. Properly given and worded, this instruction does not misdirect the jury and is not confusing; it helps juries understand the complexity of the legal standard they are being asked to apply. See Christensen, 123 Wn.2d at 247-49; Watson, 107 Wn.2d at 167; Miller III, 91 Wn.2d at 161; Gerard, 86 Wn. App. at 388-89; Thomas, 65 Wn. App. at 263-64. In contrast to the dissent’s assertion, the language of the instruction alerts jurors that they must resolve factual issues regarding the standard of care. The instruction requires the jury to find that in arriving at the diagnosis or treatment the physician exercised reasonable care and skill within the requisite standard of care. See Watson, 107 Wn.2d at 165.

¶33 Each case before the court presents different facts, and it is impossible to have one formula fit all unique situations, particularly in medical malpractice cases where it is important to remember that the inexactness of medicine is not a basis for legal liability. This instruction is one of the tools in a judge’s toolbox for him or her to use to ensure this critical element is understood. Miller I, 11 Wn. App. at 279-80; Miller III, 91 Wn.2d at 159; Watson, 107 Wn.2d at 161-67; Christensen, 123 Wn.2d at 247-50; Vasquez, 46 Wn. App. at 487-90. A certain measure of uncertainty is inherent in this system, but that is the price paid to have an individualized balance of instructions for each set of facts.

¶34 Elaborating instructions are commonly used in negligence law and are helpful for lay jurors to understand the complexities of a malpractice case. The exercise of judgment instruction reminds the jury that medicine is an inexact science where professional judgment may reasonably differ as to what constitutes proper treatment. Watson, 107 Wn.2d at 167; Gerard, 86 Wn. App. at 388-89. It will not be applied in every case but should remain a tool for a judge to use when he or she decides it is appropriate. Some of the foregoing policy concerns might have some merit, but our case law has addressed and rejected the same issues and arguments; it has repeatedly affirmed the use of these supplemental instructions. The court will not overrule precedent unless it determines it to be incorrect and harmful, which petitioners have not proved.

V. CONCLUSION

¶35 We affirm the Court of Appeals in Fergen and the trial court in Appukuttan. We hold the exercise of judgment instruction is a proper statement of Washington law. We hold that it is not limited to circumstances in which a physician proves he or she consciously selected between competing diagnoses. The instruction is discretionary for the trial judge when he or she determines sufficient evidence has been presented that a physician exercised judgment in making a diagnostic or treatment choice. Neither trial judge abused their discretion in these cases by giving the instruction. We affirm both cases.

Madsen, C.J.; Owens and Gordon McCloud, JJ.; and J.M. Johnson, J. Pro Tem., concur.

1 WPI 105.08 reads, “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.” (Alterations in original.)

2 Sestero’s notes did not say “benign” explicitly, but a “ganglion cyst” is a fluid-filled cyst that is considered to be benign.

3 “Compartment syndrome” is elevated pressure in muscle compartments that causes extreme pain from a lack of blood supply to the muscles.

4 The error of judgment instruction is not required for the defense to present its theory in every malpractice case. Seattle W. Indus., 110 Wn.2d at 9; see also Watson, 107 Wn.2d at 169. Jury instructions are reviewed as a whole to determine if they permit a party to argue his or her theory of the case. Anfinson, 174 Wn.2d at 860.