Washington Medical Malpractice Summary

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Statutes of Limitations

A medical malpractice action must be brought within three years of the act or omission alleged to have caused the injury or one year after the discovery of the alleged negligent act or omission, whichever period expires later. Wash. Rev. Code Ann. § 4.16.350 (West Supp. 1997). In no event may a medical malpractice action be brought later than eight years after the date of the alleged act or omission. Id. The limitations period is tolled upon proof of fraud, intentional concealment, or the presence of a foreign object in the claimant. Id.

The foregoing statute of limitations was amended in 1988 to provide that the knowledge of a custodial parent or guardian is imputed to persons under the age of eighteen so that claims of minors are treated the same as those of adults. Id. However, this legislation did not repeal the existing tolling statute, which provided that a claimant’s minority, mental incompetence, or imprisonment tolled the limitations period. Wash. Rev. Code Ann. § 4.16.190 (West Supp. 1997). The Washington Supreme Court has reconciled this apparent conflict over how to treat minors in a way that substantially neutralized the 1988 amendment. It held that the statute is tolled until the minor reaches age eighteen, at which time the knowledge of the parent or guardian is imputed to him. Gilbert v. Sacred Heart Medical Center, 127 Wash. 2d 370, 900 P.2d 552 (1995). A disability will not toll the limitations period unless it existed at the time the cause of action accrued. Wash. Rev. Code Ann. § 4.16.250 (West 1988).

An action for wrongful death must be brought within three years after the decedent’s death. Wash. Rev. Code Ann. § 4.16.080(2) (West 1988). This statute is applied in cases of medical malpractice resulting in death. Wills v. Kirkpatrick, 56 Wash. App. 757, 785 P.2d 834, cert. denied, 114 Wash.2d 1024, 792 P.2d 535 (1990); Bader v. State, 43 Wash. App. 223, 716 P.2d 925 (1986).

Contributory or Comparative Negligence

Washington has adopted pure doctrine of comparative negligence in tort cases, so that a claimant’s award is diminished in proportion to the claimant’s fault, but the claimant’s fault, no matter how great, will not act as a complete bar to recovery. Wash. Rev. Code Ann. § 4.22.005 (West 1988).

Joint and Several Liability

In cases where the claimant is partially at fault, each defendant is only liable for that proportion of the claimant’s total damages equal to his share of fault. Wash. Rev. Code Ann. § 4.22.070 (West Supp. 1997). However, joint tortfeasors are jointly and severally liable in cases where the claimant is not at fault to any degree, which is normal in medical malpractice cases, or where the defendants were acting in concert. Id.

Contribution

A right of contribution exists among two or more tortfeasors who are jointly and severally liable for the same injury or death. Wash. Rev. Code Ann. § 4.22.040 (West 1988). An action for contribution may be enforced in the original action or by a separate action. Id. A separate action for contribution must be brought within one year from the date the judgment became final or, if no judgment was entered, the date payment was made. Wash. Rev. Code Ann. § 4.22.050 (West 1988). A tortfeasor’s liability in contribution is determined by his relative degree of fault. Wash. Rev. Code Ann. § 4.22.040 (West 1988). These statutes taken together have been interpreted to mean that “one seeking contribution in the same action in which a claim is asserted against him must do so in a timely manner by pleading and proving his right to contribution before suffering a verdict to be entered against him on the principal claim.” Robinson v. McReynolds, 55 Wash. App. 635, 640-41, 762 P.2d 1166, 1170 (1988).

Vicarious Liability

Washington recognizes the doctrine of ostensible agency as regards claims against hospitals and independent physicians. If a hospital acts or fails to act in some way which leads the patient to reasonably believe the physician is a hospital employee, the physician is deemed an ostensible agent of the hospital. Adamski v. Tacoma General Hospital, 20 Wash. App. 98, 579 P.2d 970 (1978).

Expert Testimony

In order to prevail in a medical malpractice case, a claimant must prove that the health care provider deviated from the standard of care and that this caused his damages. Wash. Rev. Code Ann. §§ 4.24.290 (West Supp. 1997) and 7.70.40 (West 1992). Expert testimony is “often but not always required” to meet this standard. Van Hook v. Anderson, 64 Wash. App. 353, 360, 824 P.2d 509, 512 (1992). Exceptions include foreign object cases, id., and cases in which the practice of the defendant professional is such a gross deviation from ordinary care that a layman could easily recognize it. Breit v. St. Luke’s Memorial Hospital, 49 Wash. App. 461, 743 P.2d 1254 (1987).

Damage Caps

The Supreme Court of Washington has held that the statutory cap on non-economic damages established by Wash. Rev. Code Ann. § 4.56.250 (West 1988) is an unconstitutional infringement of the right to trial by jury. Sofie v. Fireboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989).

Statutory Cap on Attorneys’ Fees

While there is no defined cap for attorneys’ fees in Washington, either party charged with the payment of attorneys’ fees in a tort action may petition the court within 45 days of receipt of the final billing for a determination of the reasonableness of that party’s attorneys’ fees. Wash. Rev. Code Ann. § 4.24.005 (West 1988).

Periodic Payments

In personal injury actions in which the verdict or award of future economic damages is $100,000 or more, the court or arbitrator, at the request of either party, will provide for the periodic payment of future economic damages. Wash. Rev. Code Ann. § 4.56.260 (West 1988). Upon the death of the claimant, the court may modify the unpaid portion of the future damages judgment. Id. Money damages for future medical expenses may be modified or terminated upon the claimant’s death, but damages for lost future earnings may not be reduced or terminated. Id.

Collateral Source Rule

Washington has abrogated the common law collateral source rule by statute in medical malpractice cases. Wash. Rev. Code Ann. § 7.70.080 (West 1992). A defendant may present evidence to the trier of fact that the claimant has already been compensated for the alleged injury from any source, except the claimant’s personal assets, his representative’s or family’s assets, or insurance purchased with such assets. Id. If evidence of collateral source payments is admitted, the claimant may present evidence of an obligation to repay such compensation. Id. Insurance obtained through one’s employment is considered insurance purchased with the assets of the employee. Id.

Pre-Judgment Interest

Pre-judgment interest on liquidated damages may be awarded in negligence cases. Walla Walla County Fire Protection District No. 5 v. Washington Auto Carriage, Inc., 50 Wash. App. 355, 745 P.2d 1332 (1987). A claim is liquidated when the evidence furnishes data which, if believed, makes possible the exact computation of the amount without having to resort to opinion or discretion. Id. Pre-judgment interest accrues from the time of the loss. Id. Due to the uncertain nature of damages for personal injuries, pre-judgment interest is ordinarily not awarded in medical malpractice actions.

Patient Compensation Funds and Physician Insurance

Washington does not have a patient compensation fund, and it does not require its licensed physicians to carry liability insurance.

Immunities

The State of Washington is liable for damages arising out of its tortious conduct to the same extent as if it were a private person. Wash. Rev. Code Ann. § 4.92.090 (West 1988). Nonetheless, no action may be brought against the state for damages arising out of tortious conduct until a claim has first been filed with the state’s Risk Management Office. Wash. Rev. Code Ann. § 4.92.110 (West Supp. 1997). State officers and employees are entitled to a defense at the expense of the state when they are sued in connection with acts or omissions in the performance of their official duties. Wash. Rev. Code Ann. § 4.92.060 (West Supp. 1997).

Local government entities are liable for damages arising out of their tortious conduct or the tortious conduct of their employees to the same extent as if they were a private person or corporation. Wash. Rev. Code Ann. § 4.96.010 (West Supp. 1997). Claims against local government entities for damages arising out of tortious conduct must be filed with the governing body at least 60 days prior to filing a lawsuit. Wash. Rev. Code Ann. § 4.96.020 (West Supp. 1997).

The State of Washington and its political subdivisions are not subject to pre-judgment interest awards. Wash. Rev. Code Ann. § 4.56.115 (West 1988); Norris v. State, 46 Wash. App. 822, 733 P.2d 231 (1987).

Arbitration

In 1993, Washington adopted a system of mandatory mediation of health care claims under rules to be established by the Supreme Court. Wash. Rev. Code Ann. § 7.70.100 (West Supp. 1997). A mediation request tolls the statute of limitations for a year, but mediation does not abridge the right to trial by jury. Wash. Rev. Code Ann. § 7.70.120 (West Supp. 1997).

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Revision Date: February 6, 1998