                                                                         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.

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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).

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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.").

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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


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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:



~orsmo, C.J.
                    C~ 





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