Washington Medical Malpractice Laws

When a person has medical malpractice and is planning to pursue a lawsuit, they are claiming that a medical professional, organization or entity committed an act of negligence or omission that has led to an injury or fatality. This act or omission can come in several forms, ranging from an error in diagnosis to a rushed call for the delivery of a baby. Unfortunately, those who experience malpractice are just one victim of the thousands of individuals who have fell victim to these issues, making a medical error the third cause of death in the United States.

Since the medical field exists to solely improve the health of patients, and have spent long amounts of time training and preparing to practice, these practitioners, as well as the companies that hire them, should be held accountable. Far too often, people expect medical professionals to come out and clarify they’ve made a mistake. Practitioners are not required to let you know when they’ve acted negligently or failed to act, so if you realize that an injury you sustained was a result of malpractice, it is imperative you speak to a lawyer who has worked with people who have experienced similar circumstances as you have. Initiating litigation before the statute of limitations prohibits you from filing is the first of many steps you’ll have to take if you are planning to get the proper compensation.

This article will highlight medical malpractice laws in Washington, what to expect when filing a claim, and the factors to assess when choosing an attorney.

Suing for Medical Malpractice in Washington

In order to win a medical malpractice suit, there are several elements claimants must keep in mind. Since the circumstances of malpractice vary based on a number of individualized factors, no one case is the same, which means every single element in your case will be able to determine if a case will be deemed viable in a court of law or dismissed. The perception of an unfavorable result committed or brought about by a doctor equating to malpractice is debunked. Which means, that just because you don’t like the way things went, it doesn’t mean that you have a case. Also, proving that there was an instance of negligence, isn’t the only factor that constitutes a claim of negligence. Three elements must be evident in your case and proven in court to a judge and jury in order to heighten the chances of a successful outcome in a medical malpractice civil suit.

The three elements are:

1. There was a duty owed

This means that there should be a mutual understanding between a physician and a patient that a duty is owed to the patient. So for example, let’s say you see your physician at the grocery store and you ask for medical advice on the use of an EpiPen. He makes a joke and says, “I don’t know why you have to inject into the leg, maybe someone should try to poke other parts of their body to see if it has the same effect,’ and laughs. In turn, you take the advice and end up becoming incredibly sick. When you talked to him at the next appointment, he said he was just joking and didn’t think you would actually take that advice because you were in a setting outside of the doctor’s office and he said it in jest. A doctor can still be held liable because he has acknowledged there is an established relationship between both him/her and the injured patient.

2. There was a breach of that duty

A breach of a duty owed refers to a doctor making a mistake after the relationship between both a physician and patient have been established. So any instance of malpractice occurring while a doctor has a duty owed to a patient would have to be present within a claim. Usually, this element is the one victims feel is enough to be awarded compensation, but that is not the case.

3. The breach of that duty must be a proximate cause of your damages

A “proximate cause” poses the question of whether the injury would have occurred if not for the medical malpractice. So, if there are other factors in a malpractice claim that could have caused your injury, they will be investigated. Propose you had a foreign object stuck inside of you from a surgeon, which has seriously dampened your health. As a result, you have caught an infection that has confined you to a hospital bed and has caused heart issues. But you also have leukemia, which has also been hard on your body. It must be proven in a court of law that the malpractice is what caused your injuries, rather than leukemia.

Medical malpractice laws in Washington can be very patient-friendly, as well as health care provider. How your case goes depends on the facts of your case and your choice of legal representation. Hiring a well-versed Washington lawyer will alleviate some of the stress you’ve acquired from coping with an unwarranted injury.

How long do I have to file a medical malpractice case in Washington?

Before a victim files a claim in pursuance of a medical malpractice case, they should be aware of the statute of limitations. Each state has implemented this statute to regulate the amount of time victims have to file a claim and initiate a civil lawsuit. The time permitted by the state depends heavily on the cause of action and the nature of the case. Therefore, a claim regarding a legal action for product liability, for example, may allow claimants a longer period of time to file than a personal injury claim or vice versa. Medical malpractice claims in the state of Washington permits victims to file a claim within three years of the date in which the malpractice has been committed. [1] However, there are exceptions applied to this statute for those with valid justifications.

Some states, including Washington, have adopted a rule that allows claimants a period of discovery outside of the restrictions for filing a claim. This rule allows victims to argue that they did not and could not have reasonably discovered their injury from the malpractice within the time limit the statute of limitations provides. The discovery rule was initially implemented due to the fact that in certain instances, symptoms stemming from the injury inflicted may take some time to develop and emerge.

For example, let’s say a mother named Sue is due to have a baby this evening. Before delivering the baby, Sue’s obstetrician orders an ultrasound to check on the health of the expecting mother, and the baby. When the results of the x-ray returned, signs of the severe maternal infection rubella was presented. However, the obstetrician makes the call to go through with a normal delivery despite the harmful risks associated with Sue’s ailment. A C-section would have caused the risk of infection to plummet. Four years after what Sue and her husband thought was a successful delivery, they start to notice what appears to be mild symptoms of cerebral palsy. After doing some research, they realized their obstetrician is to blame for not treating rubella and following procedures when the practitioner had discovered the issue.

Since the symptoms were extremely mild and they had visited several doctors with no successful detection, Sue and her husband would have a case. As soon as they reasonably discovered their child’s injury, they decided to take legal action. The countdown began upon discovery.

However, there is another law called the statute of repose that claimants should be aware of. It states that a claim can not be filed more than eight years from the date on which the malpractice occurred. This means, even if a victim has not discovered their injuries in the period of eight years the state allots, their right to file a claim is lost, according to the statute of repose. [2]

Lastly, Washington grants the statute of limitations to be “tolled” or stopped, in special circumstances. These circumstances consist of: a foreign object was left in a victim, or the malpractice was concealed by fraud. A patient has one year from the date of the realization of their injury in these cases.

In Washington medical malpractice cases, who is responsible?

Identifying a defendant in a case is pivotal. Assigning a defendant who you are sure is liable for your injuries is half the battle. In some instances, determining who is liable in a case is simple. In other cases, it can be extremely difficult. There may be a number of people who have seen and worked with a victim in a medical facility, and assigning the blame may seem like an overwhelming task. However, with the help of a hired representative who deals with tasks frequently, narrowing down options that will further assure a victim receives compensation will become exponentially easier.

It’s important to note that the stereotypical perception of a medical malpractice case may not fit the circumstances of a case. Many people may have more defendants than they realize when they reference the definition of a potential defendant or a health care provider.

The statute provides that a health care provider is someone who is “regulated to practice health or health-related services or otherwise practicing health care services in this state consistent with the law.” [3] So, this consists of physicians, hospitals, dentists, pharmacists, registered nurses, licensed to practice registered nurses, nurse practitioner, optometrists, podiatrists, physician assistants, chiropractors, physical therapists, physical therapy assistants, clinical psychologists, clinical social workers, professional counselors, licensed marriage and family therapists, licensed dental hygienists, health maintenance organizations, or emergency medical care attendants or technicians who provide services on a fee basis in Washington.

It’s important to note that many of the occupations included in the “health care provider” definition are not all doctors in a hospital or doctor’s office. A potential defendant could be chosen from an array of fields of medicine to be held accountable for a victim’s injuries.

What if I am partially to blame? Can I still recover money for WA medical malpractice?

While the nature of medical malpractice claims is to put a plaintiff with an unwarranted injury against the defendant liable for their injuries, courts have found over time that clients may have a portion of responsibility for the harm they’ve experienced. In cases when fault can be shared, states have chosen several methods to award plaintiffs with an amount of compensation that is fair and realistic.

For example, let’s say you have been experiencing severe pain after an operation to remove gallstones from your gallbladder. The physician at the facility you underwent surgery at claims you are going to need a strong pill to combat the pain you’ll endure during recovery. However, you have already been taking pills for pain in your legs, when you had a surgery on them a few months before. You haven’t been honest about your previous addiction to drugs and know that more medication may trigger a dependence for those substances. You decide to accept the extra dose of pills for the overwhelming pain, even though your risk of addiction is high. If the physician took a look at your file, he would know your previous battle with drug use, but he gave you the benefit of the doubt and gave them to you without checking. A few weeks after succumbing to your addiction and excessively consuming the prescription medication, you overdose and end up in a coma for a few days. When you wake up, you realize that you have severe heart and lung damage. You will now be confined to a hospital bed for some time and undergo several medical procedures.

If you decided to pursue a claim for the harm you’ve experienced, there are three methods states have chosen to adopt when it comes to assigning fault in civil cases: pure comparative fault modified comparative fault and pure contributory negligence. Below is an overview of the three systems that could possibly be used in civil cases, which is useful if you’re a Washington citizen but have been hurt outside of the state perimeter.

Pure comparative fault

Washington is one of 12 states that chose to adopt the pure comparative fault doctrine. This means that plaintiffs are granted compensatory damages for their injuries despite the percentage of fault they’ve been assigned by a judge or jury. Deemed as a more lenient, and light-hearted approach to determining liability, legislation allows plaintiffs to recover damages even if 99% at fault for their injuries. In the scenario mentioned above, let’s say the court assigned you with 70% of the blame and the doctor for 30% of the blame for your injuries. Despite you being more accountable for your overdose, you will still recover damages, the assigned amount of 70% will just be deducted from the set amount you were originally supposed to be granted. Washington along with Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Rhode Island, and South Dakota apply this rule in civil cases. [4]

Although the damages will be drastically diminished, skeptics of the law claim that those who carry an excessive number of responsibility for their own injuries should not be awarded anything, and that the rule is contrary to the nature of the judicial system. These skeptics led to the adoption of the opposing method of fault states have chosen, pure contributory negligence.

Pure contributory negligence

The pure contributory negligence system prohibits plaintiffs from recovering damages if they have any responsibility at all for their injuries. So in the example above, if a judge or jury finds that you are 1% responsible for your overdose, that is considered a contribution to your injuries. Under this system, you will be denied of compensation, no exceptions. States abiding under this system are Alabama, Maryland, North Carolina and Virginia.

Modified comparative fault

This system of assigning fault falls between the two spectrums of systems previously mentioned. When applied, eligibility for compensation is capped off when a plaintiff is found liable for a portion of 50% or 51% of the injuries inflicted.

So, if the court assigns determines you are 49% or less liable for the damages that occurred as a result of your overdose, you will be able to recover compensation. If that liability is assigned at 50% or over, the opportunity for an award is void. States adhering to this rule are Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, Oklahoma, Tennessee, Utah and West Virginia.

If the court determines a plaintiff 50% or less liable for their overdose, mentioned in the scenario above, they will recover the damages deemed appropriate by the judge or jury. States that have adopted the 51% rule include Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, and Wyoming.

Are there medical malpractice recovery caps in Washington?

Each state has the option of either limiting, allowing or prohibiting the damages plaintiffs can recover in a medical malpractice civil case. Washington, along with some other states has established a “cap” and even a ban on certain types of compensation despite the losses endured as a result of an unwarranted injury. However, Washington has a few unique laws in comparison to other states as to what is allowed or permitted in a court of law. There are three types of damages: economic, non-economic and punitive.

Economic damages can be anything that indicates the quantity of damages experienced due to an injury. Often presented as tangible items like documents, receipts or any other information perceived valuable by an attorney in a case. Usually, proof of these damages can be simply calculated into a monetary value and will be a pivotal part in determining the amount of compensation a plaintiff is set to receive. A few examples of economic damages are diminished earning capacity, days missed from work, medical expenses, burial expenses, loss of employment, fees from medical procedures, property damage or loss of property, etc. The state of Washington allows for victims to recover economic damages without any limits or caps.

Non-economic damages, also known as non-pecuniary harms, are losses that are not directly linked to a victim’s financial consequences when receiving their injury. These damages, often challenged by a judge or jury state that the victim has been deeply psychologically or emotionally impacted by their current circumstances and condition. Since proof of these damages is intangible, the plaintiff will have to convince the jury through testimony that they deserve to recover damages of this nature. Some examples of non-economic damages are pain and suffering, loss of consortium, inconvenience, disfigurement, loss of companionship, emotional distress and the degradation of a victim’s quality of life. Washington utilizes a formula to calculate the minimum and maximum total one can receive in regard to non-pecuniary harms. The amount if determined by “multiplying 0.43 by the average annual wage and by the life expectancy tables adopted by the insurance commissioner. For purposes of determining the maximum amount allowable for non-economic damages, a claimant’s life expectancy shall not be less than fifteen years.” [5]

Punitive damages, also called exemplary damages, are awarded to deter similar potential defendants who may be engaging in the same behavior to stop while ahead. These damages send a message that the jury and judge hopes are loud and clear to those who are operating under the same negligence. When the court decides that a defendant or defendant committed negligent acts in a way that are malicious, reckless, or fraudulent, punitive damages are awarded. As of now, the state of Washington does not allow punitive damages to be awarded in civil cases. Instead, the state awards double damages, which doubles the amount of compensatory damages a plaintiff is set to receive. [6]

Expert witness reporting and testimony

In order for the outcome of a medical malpractice civil suit to be successful, a plaintiff, with the help of a skilled attorney, must have an expert witness in a trial. Washington requires that expert witnesses be individuals that are capable of establishing the “standard of care.” According to Washington law, a person labeled as an expert witness is there to “assist the trier of fact to understand the evidence or determine a fact an issue…” [7]

The expert witness’ testimony most clearly pinpoint that:

• There was a breach of the standard of care by the negligent act or omission that caused the plaintiff’s injury; and
• The deviation from the standard of care was the direct cause of the injury [8]

The standard of care is defined in Washington legislation. It emphasizes that this standard is breached when a health care provider in the same field of medicine with the appropriate degree and diligence and skill would not have committed a similar or the same mistake if they wound up in the same circumstances.

Washington law specifies that no more than two expert witnesses is able to provide, more than two expert witnesses at a trial. But there is no limit on the amount of health care providers used to argue a point in a trial.

Setting medical malpractice cases in WA

Settling a medical malpractice civil case is a fairly common occurrence. However, there have to be several guidelines met in order for the defense to initiate a settlement. Only when the establishment of a merited cases is presented in the period of discovery, is when a case can be settled. The process is started before trial, and permits every party, both the plaintiff and the defendant, along with their attorneys to clarify facts and negotiate. Each party has an objective in mind with their clients best interest when the possibility of a settlement is likely. The plaintiff’s aim is to reach a monetary amount that is parallel to the damages they’ve suffered from an unwarranted injury. The defense’s goal is to minimize the amount of money that will be offered to the plaintiff. Since the plaintiff has the ability to reject a statement if it is deemed unreasonable by them. They may think that taking their chances in court would be best. When the victim’s party begins to contemplate a trial, the defense may feel that they are forced into settling. This is due to fears that the judge will make them pay more than they’re willing to settle with.

Methods of payment

Immediately after a settlement has been reached by both parties, a monetary award is set to be received for all the damages deemed legitimate in the negotiation process. Several options for a plaintiff to collect their award are lump-sum payments and structured payments.

Structured settlement: Those who choose this method of payment are awarded periodically as arranged by the court. These types of settlements are used in situations when the plaintiff is a minor, or if the plaintiff is expecting long-term medical care for sustained injuries.

Lump-sum settlement: This type of payment arrangement generally is followed when the plaintiff requests to receive all of their settlement all at once. It is considered the least complex method and has grown popular amongst those who are given an option.

After a settlement and the way it will be awarded will be granted, a plaintiff’s attorney has the responsibility of depositing it into an escrow account. After legal expenses are withdrawn in a timely manner, the plaintiff will receive the compensation granted by the court. Since no medical malpractice cases are the same, whenever a settlement happens in one doesn’t mean it will happen in another. Settlements depend on the nature of the case, the attitudes of those involved and the facts presented.

Litigating medical negligence cases in Washington

Once a victim discovers that they have been injured as a result of malpractice, they will attempt to pursue a viable case and file a claim. Once filed (hopefully, within the statute of limitations in Washington), the option of settling may be introduced and occur. In cases when both parties cannot agree on a proper monetary amount for a settlement, the case will advance through the phases of litigation.

Initiating the case

Once a plaintiff is at this stage, it is assumed that the defendant did not offer a settlement.

In the state of Washington, a claim is only reviewed when it has been submitted to the proper court. There are two types of jurisdictions that handle specific types of cases. When first filing, the case will usually go to District Court, which handles general civil cases. However, if a case is appealed or if a victim is asking for an amount that exceeds $10,000, the case will move under the jurisdiction of the Washington Supreme Court.

Claimants are permitted to file an affidavit, alongside a claim, in order for their case to be reviewed. Not filing this document along with a personal account of actions will result in the dismissal of a victim’s civil suit.

Preparing for litigation

After the defendant has viewed and responded to the claim, both the sides of the plaintiff and the defendant will prepare for litigation. The discovery process usually occurs immediately after a case is authenticated. In this process, the plaintiff and the defendant provide information regarding the evidence and witnesses that may be presented and called in trial. It was created to alleviate the phenomenon of “trial by ambush,” which transpires when one party is oblivious to another party’s witnesses and evidence, resulting in them failing to garner answering evidence and testimonials.

A deposition also takes place. It includes a plethora of questions asked to the witnesses involved from opposing counsels. Attorneys are generally present to prepare their clients for rebuttals to these questions that could possibly throw them off. Other methods exemplified in the discovery process are

• A subpoena, or requiring the opposing counsel to produce records and documents for inspection by the judge
• Submitting a physical examination
• Requesting that document and facts of a case be examined by the other counsel to deter counsels from lying or fabricating information

Pretrial litigation

This phase of litigation involves a number of motions and conferences. In these conferences is a presentation of facts, introduction to witnesses, and the rescheduling of separate briefs and motions. In the pretrial litigation stage, the defense has a chance to settle a case.

Trial

When a settlement can not be reached, the trial phase will begin. The following events will transpire in this time:

• Opening statement from the legal representation of each party
• Testimonials and evidence called by the plaintiff’s party
• Testimonials and evidence called by the defense
• Closing statement from the legal representation of each party
• Jury deliberation
• Resolution and award

Medical malpractice cases are known for lasting twice as long as normal personal injury civil suits. This means more fees to pay, especially for the losing party.

Appeal

When the losing counsel disagrees with the decision made by a district court, they can appeal the case. However, an appeal is only possible if there is a legal error present throughout the case. An example of the type of errors that could occur in a trial are, but not limited to:

• Issues with discretion
• Jurisdiction issues
• Evidentiary rulings
• An unconstitutional ruling
• Errors in the application of the law

How to find the best Washington Medical Malpractice Lawyer for your case

If you or a loved one has been injured as a result of the negligence of a health care provider, you don’t have to be satisfied with your predicament. Coping with an injury that could have been prevented is difficult, and can make an individual feel an array of emotions, ranging from sadness to confusion and ultimately to anger. These feelings are justified, and it’s understandable why you may be too weary to deal with the numerous legal obligations and stipulations associated with a medical malpractice claim. That is all the more reason for you to hire a seasoned attorney that is well-versed in these types of cases that will take some of the pressure off of you during these tumultuous times.

After all, pursuing a case for the compensation you are entitled to is not supposed to be an obstacle, it should be an encouragement that you are one step closer to receiving what you deserve from a court of law, and holding those who hurt you accountable. It’s essential to choose a legal representative that acts for your best interest and puts your needs first. Asking the appropriate questions when consulting with a potential attorney could drastically influence the outcome of a case

It’s easy for a victim to forget the fact that an attorney is intended to advocate for and represent you. However, sometimes it may not seem this way, especially if he/she exemplifies that their best interest significantly outweighs your needs. Interviewing more than one firm until you find a lawyer that is genuine is very important in our pursuit of the attorney of firm best suited for you. Remembering that characteristics like empathy, efficiently communicating, and having an impressive win rate when representing clients are just some of the areas victims should explore when choosing an attorney.

Obviously, one of the components that keep people from hiring legal representation are the finances involved. Victims may have already had to pay a lot of expenses, and the budget may not call for you to hire an attorney. Don’t worry, there are two ways that medical malpractice cases are generally paid for: an hourly wage or a contingency fee.

Footnotes

[1] Wash. Rev. Code § 4.16.350(3)

[2] Wash. Rev. Code § 4.16.326

[3] Wash. Rev. Code § 4.70.127(23)(a)

[4] Wash. Rev. Code § 4.22.005

[5] Wash. Rev. Code § 4.56.250(2)

[6] Wash. Rev. Code § 49.52.070

[7] Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979)

[8] Wash. Rev. Code 7.70.040