* Dani Fergen, et al v. John D. Sestero, M.D.

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

FILED
APRIL 09, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DANI FERGEN, individually and as 	) 	No. 30523-6-111
personal representative of the ESTATE of 	)
PAUL J. FERGEN, and minors 	)
BRAYDEN FERGEN and SYDNEY 	)
FERGEN, individually, 	)
)
Appellants, 	) 	PUBLISHED OPINION
)
v. 	)
)
JOHN D. SESTERO, M.D., individually 	)
and as an employee/shareholder/agent of 	)
defendant SPOKANE INTERNAL 	)
MEDICINE, P.S., a Washington 	)
corporation, 	)
)
Respondent. 	)
BROWN, J. - 	Dani Fergen appeals the defense verdict in her medical negligence
action against John D. Sestero, M.D. and Spokane Internal Medicine, P.S. (collectively
Dr. Sestero). She contends the trial court erred by instructing the jury on a physician's
"exercise of judgment"1 because the instruction lacks substantial evidence. We
disagree and decline Ms. Fergen's invitation to revise or abandon the standard
instruction. Accordingly, we affirm.
1 The relevant jury instruction was formerly called the "error of judgment"
instruction. The Washington State Supreme Court Committee on Jury Instructions now
calls it the "exercise of judgment" instruction to avoid confusion. 6 WASHINGTON
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 30523-6-111
Fergen v. Sestero
FACTS
In November 2004, Paul Fergen found a lump on his right ankle causing him
minor discomfort. 	He consulted Dr. Sestero regarding the lump the next week. 	In his
chart notes, Dr. Sestero described the lump as a "slight nodule" that was "smooth, soft,
and nontender" but presented "no other erythema, swelling, or other abnormalities." Ex.
1A. Dr. Sestero tentatively diagnosed the lump as a benign ganglion cyst, ordered an x-
ray of the ankle to ensure no structural defects, referred Mr. Fergen to an orthopedic
specialist, and instructed him to follow-up as necessary. The radiologist noted "some
soft tissue swelling" and stated, "If a soft tissue cyst is felt an ultrasound might be of
help." Ex. 3. 	Dr. Sestero to"ld Mr. Fergen the x-ray results were "negative" and
encouraged him to seek medical attention if the lump grew bigger or became painful.
Report of Proceedings at 1212-13,1834-35. 	Mr. Fergen had a seizure 13 months later.
Pathologists eventually diagnosed him with Ewing's sarcoma, a rare and aggressive
cancer that originated in the lump on his ankle and metastasized to his lungs, brain, and
lymph nodes. 	Mr. Fergen died in January 2007.
Ms. Fergen sued Dr. Sestero for medical negligence on behalf of Mr. Fergen's
estate and the couple's minor children. 	At trial, Dr. Sestero testified he considered
malignancy in deciding Mr. Fergen's lump was most likely a benign ganglion cyst. 	His
expert witnesses testified he faced a choice between at least two differential medical
diagnoses, one very likely and one very unlikely, and he acted within the standard of
PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 105.08 cmt. at 612-13 (6th
ed. 2012) (WPI). 	We use the current terminology.
2
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 30523-6-111
Fergen v. Sestero
care in choosing a' tentative diagnosis. The trial court instructed the jury, based on WPI
105.082 and over Ms. Fergen's objection, regarding a physician's exercise of judgment:
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.
Clerk's Papers at 3198, 	The jury returned a defense verdict. 	Ms. Fergen appealed.
ANALYSIS
The issue is whether the trial court erred by instructing the jury on a physician's
exercise of judgment. 	Ms. Fergen contends the instruction lacks substantial evidence
because the record shows Dr. Sestero considered solely whether Mr. Fergen's lump
was a benign ganglion cyst. 	She characterizes this as a singular medical diagnosis, as
opposed to a conscious choice between differential medical diagnoses. Additionally,
Ms. Fergen contends the instruction prejudiced her by injecting collateral issues and
evidentiary comments, causing jury confusion and speculation.
We review a decision on whether to give an exercise of judgment instruction for
abuse of discretion.3 Seattle W. Indus., Inc. v. David A. Mowat Co., 110 Wn.2d 1, 9,
2 WP1105.08, supra note 1, at612.
3 Ms. Fergen incorrectly contends our review is de novo. We review alleged
legal errors in jury instructions de novo. Anfinson v. FedEx Ground Package Sys., Inc.,
174 Wn.2d 851,860,281 P.3d 289 (2012). 	While she argues the exercise of judgment
instruction lacks substantial evidence, she does not argue a legal error. 	See Hue v.
Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995) (a jury instruction contains
a legal error if it does not allow a party to argue his or her theory of the case, misleads
the jury, or, when considered with other jury instructions as a whole, improperly informs
the jury of the applicable law). 	Therefore, the abuse of discretion review standard
applies. 	See 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).
3
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 30523-6-111
Fergen v. Sestero
750 P.2d 245 (1988); Thomas v. Wiltac, Inc., 65 Wn. App. 255,264,828 P.2d 597
(1992). 	If a party's case theory lacks substantial evidence, a trial court must not instruct
the jury on it. Albin v. Nat'l Bank of Commerce of Seattle, 60 Wn.2d 745, 754, 375 P .2d
487 (1962); State v. Hughes, 106 Wn.2d 176,191,721 P.2d 902 (1986). The converse
is true as well. 	Kelsey v. Pollock, 59 Wn.2d 796, 798-99, 370 P.2d 598 (1962);
Cooper's Mobile Homes, Inc. v. Simmons, 94 Wn.2d 321,327,617 P.2d 415 (1980). 	In
this context, evidence supporting a party's case theory "must rise above speculation
and conjecture" to be substantial. 	Bd. of Regents of Univ. of Wash. v. Frederick &
Nelson, 90 Wn.2d 82, 86, 579 P .2d 346 (1978). 	In other contexts, evidence is
substantial if a "sufficient quantum [exists] to persuade a fair-minded person of the truth
of the declared premise." Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621
(1978).
In a medical negligence case, a trial court may, "with caution," instruct the jury on
a physician's exercise of judgment if the evidence shows the physician was "confronted
with a choice among competing therapeutic techniques or among medical diagnoses"
and, "in arriving at a judgment, the physician ... exercised reasonable care and skill,
within the standard of care he or she was obliged to follow." 	Watson v. Hockett, 107
Wn.2d 158, 165,727 P.2d 669 (1986) (internal quotation marks and alteration omitted);
"A trial court abuses its discretion if its decision is manifestly unreasonable or
based on untenable grounds or untenable reasons." 	In re Marriage of Littlefield, 133
Wn.2d 39, 46-47,940 P.2d 1362 (1997) ("A court's decision is manifestly unreasonable
if it is outside the range of acceptable choices, given the facts and the applicable legal
standard; it is based on untenable grounds if the factual findings are unsupported by the
record; it is based on untenable reasons if it is based on an incorrect standard or the
facts do not meet the requirements of the correct standard.").
4
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 30523-6-111
Fergen v. Sestero
see also 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL
105.08 note on use at 612 (6th ed. 2012).
Here, Dr. Sestero testified he considered malignancy in deciding Mr. Fergen's
lump was most likely a benign ganglion cyst. 	His expert witnesses testified he faced a
choice between at least two differential medical diagnoses because Mr. Fergen's lump
was necessarily either benign, which was very likely, or malignant, which was very
unlikely. And, his expert witnesses testified that, in his diagnostic process, Dr. Sestero
exercised reasonable care and skill within the standard of care because he examined
the lump, considered its history, ordered an x-ray of the ankle to ensure no structural
defects, referred Mr. Fergen to an orthopedic specialist, and instructed him to follow-up
as necessary. This evidence rises above speculation and conjecture, and is a sufficient
quantum to persuade a fair-minded person that Dr. Sestero's mere failure to produce a
good medical result was not medical negligence. Therefore, substantial evidence
supports his case theory and the trial court did not abuse its discretion by instructing the
jury on a physician's exercise of judgment.
Ms. Fergen invites us to limit the exercise of judgment instruction to
circumstances where a physician "consciously selected between competing alternative
diagnoses or treatments." Br. of Appellants at 18. 	Ms. Fergen alternatively invites us to
abandon the instruction "as incorrect and harmful." Br. of Appellants at 24 n.14.
Honoring stare decisis principles, we decline Ms. Fergen's invitations, deferring to our
Supreme Court the task of redefining when the instruction should apply, if at all. 	See
Ezell v. Hutson, 105 Wn. App. 485, 491,20 P.3d 975 (this division adhering to binding
5
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 30523-6-111
Fergen v. Sestero
Supreme Court precedent on the former error of judgment instruction despite concerns),
review denied, 144 Wn.2d 1011 (2001).
In sum, we hold the trial court did not err by instructing the jury on a physician's
exercise of judgment. Considering our analysis, we do not reach Ms. Fergen's
prejudice contentions.
Affirmed.
Brown, J.
WE CONCUR:
~ 	C~orsmo, C.J.
6