A man found a small lump on his ankle that was causing slight discomfort. The next week he went to see a doctor regarding the lump. The doctor 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.” The man was not experiencing any redness, swelling, or other abnormalities. The doctor assessed it as a ganglion cyst, a fluid-filled cyst that is considered to be benign; ordered an x-ray to make sure there were no structural defects; referred the man 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.” The doctor informed the man that the x-ray was negative but did not order an ultrasound.
Approximately 13 months later, the man 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, the man died.
The man’s wife, individually and as personal representative of the man’s estate, as well as their minor children, individually filed suit against the doctor and his employer. The complaint alleged negligence and breach of the standard of care for failing to take the steps necessary to ensure that the lump on the man's ankle was, in fact, a benign ganglion cyst.
The doctor's records did 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. Defense medical experts testified that the applicable standard of care did not require the doctor 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.
The family argued that the doctor 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 was no evidence of a conscious choice. The doctor 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.
The Spokane County Superior Court gave a 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.” The jury found for the doctor. The Court of Appeals affirmed.
Another man suffered an injury to his left lower leg during a soccer game. Over the next four days he visited a medical center’s 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, which is an elevated pressure in muscle compartments that causes extreme pain from a lack of blood supply to the muscles, as each believed their physical examinations indicated other diagnoses. Ultimately, the man 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.
The man filed a medical negligence action against the medical center, a physician practice group, and three doctors. The complaint alleged negligent treatment during his medical center visits. At trial, the man offered testimony that the doctors violated the standard of care by failing to take the steps necessary to rule out or confirm compartment syndrome. Conversely, the doctors 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.
The King County Superior Court gave an exercise of judgment instruction that read, “[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.”
The jury found for the defense, and the man appealed to the Court of Appeals, challenging the exercise of judgment instruction. He then moved to transfer the appeal to the Supreme Court of Washington. The Supreme Court of Washington granted the transfer and consolidated it with other man's case.
The Supreme Court of Washington affirmed. The court held that Washington law supported the use of an exercise of judgment instruction in appropriate medical malpractice cases, and that an exercise of judgment instruction should only be given when the doctor chose between reasonable, medically acceptable options.
Washington law supports the use of an exercise of judgment instruction in appropriate medical malpractice cases. Case law indicated that the court had consistently approved of the exercise of judgment jury instruction in appropriate medical malpractice cases. The exercise of judgment instruction was not preempted by chapter 7.70 RCW, which established the standard of care as that of a reasonably prudent practitioner. The exercise of judgment instruction was a supplemental instruction that could not be given separate from the basic standard of care instruction. The court reasoned that the exercise of judgment instruction was used to clarify the general standard of care; the instruction did not alter the standard of care or add any additional elements for a plaintiff to prove.
An exercise of judgment instruction to supplement a general instruction on the proper standard of care should only be given when the doctor chose between reasonable, medically acceptable options. The court held that an exercise of judgment instruction was justified when (1) there was 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 was evidence that the physician made a choice among multiple alternative diagnoses or courses of treatment. The court found that expert testimony at each trial provided evidence that the physician exercised reasonable care and skill consistent with the applicable standard of care in formulating his or her judgment and there was substantial evidence to support the doctors’ assertions of competency. Courts have interpreted very broadly the requirement that a doctor is confronted with a choice among competing therapeutic techniques or among medical diagnoses. An exercise of judgment instruction should only be given when the doctor chose between reasonable, medically acceptable options; it should not be given simply if a physician is practicing medicine at the time. An exercise of judgment instruction was not appropriate in malpractice actions focused on the inadequate skills of the physician. The court reasoned that the physician must have made a choice, but making a choice encompasses any exercise of professional judgment in treatment or diagnosis. In a failure to diagnose cancer case, the court found that the doctor made many choices that necessarily involved his judgment: whether to refer the man to a specialist, whether to order an x-ray, and whether to order follow up testing. 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. The doctor testified that the lump being cancerous was so exceedingly rare that it was far down the list of possible ailments and he was not sure if he considered it as an actual possibility. The court reasoned that this indicated that he considered various diagnoses and made a choice between them using his medical judgment—he just chose wrong. Similarly, in the failure to diagnose compartment syndrome case, the court found that the physicians 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 the man’s symptoms. The court held that in each case the exercise of judgment instruction was supported by sufficient evidence and, thus, the trial judges did not abuse their discretion by deciding to give the instruction to the juries.
The Supreme Court of Washington affirmed, holding that the trial judges did not abuse their discretion by deciding to give the exercise of judgment instruction to the juries.
See: Fergen v. Sestero, 2015 WL 1086516 (Wash., March 12, 2015) (not designated for publication).
See also Medical Risk Law, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis
See also Medical Risk Law, August 2014 Report: Epilepsy and Seizure Disorders: Malpractice in Diagnosis and Treatment
See also Medical Risk Law, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care