Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury.
The Washington Supreme Court has held that caps on non-economic damages in medical malpractice cases are unconstitutional under the state constitution.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Washington instead follows a modified rule of several liability, pursuant to which a defendant is liable only for the share of damages attributable to that defendant's share of responsibility for the plaintiff's injury. However, a party may be jointly liable with another person if the parties were acting in concert, if the person was acting as the agent or servant of the party. Also, where the plaintiff is determined to have no fault in relation to the injury, the defendants against whom judgment is entered are jointly and severally liable for the sum of their proportionate shares of the plaintiff's total damages.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Washington has eliminated the collateral source rule for medical malpractice cases, except for benefits received from insurance purchased by the plaintiff.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. Washington's statute of limitations for medical malpractice cases is three years from the date of injury or one year from the date it was or reasonably should have been discovered, whichever is later. However, no malpractice action may be brought more than eight years after the act or omission alleged to have caused the injury. For a foreign object left within the plaintiff's body, or where discovery is delayed due to a defendant's fraud, the statute of limitations commences one year after the plaintiff has actual knowledge. Washington does not toll the statute of limitations for medical malpractice injuries to minors.
Additional rules affecting malpractice litigation in the State of Washington include:
Limits on Attorney Fees
Although Washington's Supreme Court has held caps on attorney fees to be unconstitutional, either party may petition the court to review the reasonableness of the attorney fee charged by that party's lawyer.
Alternative Dispute Resolution
In Washington, unless the parties have previously agreed to arbitration, all medical malpractice cases, as well as all contract cases arising from an injury occurring as the result of health care, are subject to mandatory mediation prior to trial. Any party may petition the court or mediator to determine that mediation is not appropriate. Unless the parties agree in writing to the selection of a mediator, the court shall select a mediator from a register of qualified, licensed attorneys, maintained by the court. Following the section of a mediator, the plaintiff must arrange a conference call among the mediator and counsel for all parties to discuss the procedural aspect of the mediator. Unless the mediator directs otherwise, the parties are to provide the mediator with copies of the relevant pleadings, and a confidential memorandum summarizing their contentions relevant to liability and damages. Attorneys for the parties are required to attend the mediation and are required to be prepred to discuss in detail and good faith all issues of liability, damages, and the position of their clients relative to settlement. Failure to attend mediation may result in sanctions. Mediation proceedings are confidential, as is any report or recommendation the mediator chooses to prepare. Any written findings or suggestions of the mediator may not be filed with the court or submitted to the judge or jury.
In statutory arbitration proceedings for either personal injury or wrongful death claims arising from medical malpractice, the arbitrator may not award damages in excess of $1 million. The results of arbitration may be vacated based only upon a showing of serious impropriety, such as corruption, fraud, evident partiality, corruption or misconduct by the arbitrator, refusal of a postponement despite a showing of sufficient cause for postponement, refusal to consider material evidence, violation of the statutes governing arbitration procedures causing prejudice to a party, the arbitrator exceeding the arbitrator's powers, or arbitration without an agreement to arbitrate over the objection of a party. The arbitrator's award may be modified upon a showing of evident mathematical calculation, an evident mistake in describing a person, thing or property, an award on a claim not submitted to arbitration, or a defect in the form of the award not affecting its merits. Any party objecting to the award or seeking tis modification or correction must file a timely objection or their objection will be deemed waived.
Certificate of Merit Rules
A certificate of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In Washington, when a medical malpractice action alleges that the plaintiff's injury is caused by an act or omission that violates the accepted standard of care, the plaintiff must file a certificate of merit at the time the action is commenced. If the action is commenced within forty-five days of the expiration of the statute of limitations, the certificate of merit must be filed within forty-five days of the filing of the complaint. The plaintiff may petition the court to grant additional time to file a certificate of merit and, upon a showing of good cause, the court may grant an extension not to exceed ninety days.
Ther certificate of merit must be prepared by a health care provider who is qualified to testify as an expert witness in the matter. A separate certificate of merit must be filed for each defendant. The certificate of merit must contain a statement that, based on the information known at the time of executing the certificate of merit, the person executing the certificate believes that there is a reasonable probability that the defendant's conduct did not follow the accepted standard of care required to be exercised by the defendant. Failure to file a fully compliant certificate of merit is grounds for dismissal of the malpractice case.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Under Washington's apology law, in a medical malpractice case, including arbitration and mediation proceedings, a statement, affirmation, gesture, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence made to a patient, their family or representative, is not admissible if made within thirty days of the act or omission underlying the cause of action, relates to the patient's discomfort, pain, suffering, injury or death as ar result of the alleged medical negligence, or statement made regarding remedial actions that may be taken to address the act or omission that is the basis for the allegation of negligence, is not admissible. Similarly, evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.