Victory for Physicians Defending against Medical Malpractice Actions

In Fergen v. Sestero, Washington’s Supreme Court recently handed an important victory to physicians defending medical malpractice actions.  The ruling involved 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, making the wrong choice when choosing between alternate treatments or diagnoses does not make them legally liable.  Importantly, the court ruled that a physician may be entitled to this instruction even if he or she did not make a conscious choice between two diagnoses or treatments.

For example, in Fergen v. Sestero, a physician diagnosed a lump in an ankle as a benign cyst, and ordered an X-ray to check on physical abnormalities.  The X-ray found no abnormalities, but the specialist stated that “If a soft tissue cyst is felt an ultrasound might be of help.”  The physician did not order an ultra-sound, but told the patient to follow up with his office as necessary.  Unfortunately, the lump was a metastatic cancer that ultimate caused the patient’s death.  The patient’s estate sued the physician, alleging medical malpractice.

The plaintiff argued that the physician simply diagnosed the lump 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.  The court rejected this argument and held that giving the instruction does not require evidence of a conscious choice between alternate diagnoses.  Instead, the defendant only has to show that he or she exercised professional judgment in treatment or diagnosis.

If you have additional questions about Fergen v. Sestero or other legal matters involving health care law, please contact Luke Campbell at or 206-682-7090.