Informed Consent

An informed consent claim focuses on a patient’s informational medical rights; the right to receive sufficient information from the treating health care provider regarding the medical condition in issue and treatments for the condition to enable the patient to make an informed decision regarding the risks and benefits of treatment alternatives—including no treatment.

Negligence Claims

RCW 7.70.040 sets out the standard of care for negligence claims as the failure “to exercise that degree of care, skill and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same circumstances…” Somewhat incongruously, RCW 4.24.290 also sets out a standard of care (of sorts) for claims based on negligence as “…the defendant or the defendants failed to exercise that degree of skill, care, and learning possessed at that time by other persons in the same profession, and that as a proximate result of such failure the plaintiff suffered damages…” WPI 105.01, the negligence instruction for a general health care provider, tracks RCW 7.70.040. RCW 4.24.290 specifically provides that the standard of care set out therein does not apply to a claim based on the failure to obtain the informed consent of a patient.

Constitutional Issues

In 2006 the legislature enacted RCW 4.16.190(2), which eliminated RCW 4.16.190’s tolling statute for minors’ medical malpractice claims. In Schroeder v. Weighall, 179 Wn.2d 566, 316 P.3d 482 (2014), the Court struck down the provision as being violative of our state constitution’s privileges and immunities clause.

Arbitration

In 2006 the legislature enacted Chapter 7.70A RCW, providing for voluntary arbitration of medical malpractice claims. All parties must agree to arbitrate. Discovery is limited, as is the number of expert witnesses. The arbitrator may not award damages, both general and special combined, exceeding one million dollars

In 1909, in the case of Helland v. Bridenstine, 55 Wash. 470 (1909), the Washington Supreme Court published its first opinion in a medical malpractice case. The trial had taken place in King County Superior Court and resulted in a verdict for the plaintiff, a woman who sued her physician for giving her a “loathsome disease” as a result of examining her with unsterilized instruments. The jury awarded the woman $4,000. The Supreme Court found the verdict excessive and gave the woman the choice of a remittitur to $2,000 or a new trial. Helland v. Bridenstine, 55 Wash. 470, 472, 477-478 (1909).

State and Municipal Tort Claim Service Requirements

In 2006, the legislature enacted RCW 7.70.100(1), which required a plaintiff in a medical malpractice case, prior to filing suit, to serve a notice of intent to sue on all defendants and to wait 90 days to file.

Tolling the Limitations Period

The statute of limitations is tolled during the continuous course of treatment for a particular condition. Caughell v. Group Health 124 Wn.2d 217, 229, 876 P.2d 898 (1994). Importantly, the Caughell Court held that the event that triggers the statute to run is the last negligent act committed by the defendant and not the last date of treatment. Under the continuous course of treatment rule, there exists a single claim for malpractice. Id., 225.  Therefore, a claim based upon the continuous course of treatment for a condition provides a single cause of action which encompasses the entire period of negligent treatment, if the claimant can establish the last act of negligence was within the three year period or one year discovery rule.

The Limitations Periods – (AKA Statutes of Limitations)

“The statute of limitations for medical malpractice claims consists of two limitations periods: a three-year period and a one-year discovery period.” Unruh v. Cacchiotti, 172 Wn.2d 98, 107, 257 P.3d 631 (2011). The limitation periods are set out in RCW 4.16.350.

Medical Malpractice – Cognizable Claims

Chapter 7.70 (Actions for Injuries Resulting from Health Care) does not define “health care” but the Supreme Court in Berger v. Sonneland, 144 Wn.2d 91, 109, 26 P.3d 257 (2001) and Beggs v. Department of Social and Health Services 171 Wn.2d 69, 78, 247 P.3d 421 (2011) implicitly adopted Division I of the Court of Appeals’ definition articulated in Estate of Sly v. Linville, 75 Wn. App. 431, 439, 878 P.2d 1241 (1994) as “the process in which [the physician] was utilizing the skills that he had been taught in examining, diagnosing, treating or caring for the plaintiff as his patient.” (Citing Tighe v. Ginsberg, 146 A.2d 268, 271, 540 N.Y.S.2d 99 (1989).) “This definition is consistent with the dictionary definition of ‘healthcare’ as [t]he prevention, treatment, management and the preservation of mental and physical well-being through the services offered by medical and allied health professionals.” Berger, supra, 109, citing, The American Heritage Dictionary 833 (3d ed. 1992).

Medical Malpractice – Cognizable Claims

Actions against healthcare providers (broadly defined in RCW 7.70.020) for injuries resulting from health care are governed by RCW Chapter 7.70 and RCW 4.24.290.

One would assume that for a statutory scheme that has been in effect for over forty years, the two most basic issues: (1) who can bring a claim under Chapter 7.70 and (2) what types of claims are actionable—would have been answered. For the most part that is true, but there are a few lingering uncertainties.

A Brief Introduction and History Regarding Medical Malpractice Lawsuits in Washington State.

In 1909, in the case of Helland v. Bridenstine, the Washington Supreme Court published its first opinion in a medical malpractice case. The trial had taken place in King County Superior Court and resulted in a verdict for the plaintiff, a woman who sued her physician for giving her a “loathsome disease” as a result of examining her with unsterilized instruments.

The Seattle Times reports that a Seattle, Washington police officer remains in critical condition, in Harborview Medical Center’s Intensive Care Unit, after being struck by a car while riding his motorcycle. While his injuries are considered serious, a police sergeant explained to the Seattle Times, that he is expected to recover from them. The accident took place in Seattle, when the driver of a Subaru Forester made a U-turn in front of the motorcycle, knocked the motorcycle over, and ran over the rider. According to the article, the police explained that the driver of the car remained calm, and used the radio on the officer’s motorcycle to alert the Seattle Police Department about the incident. Emergency response vehicles quickly arrived on the scene. There was no indication that the driver of the car was under the influence of drugs or alcohol at the time of the crash.

A new study out of Johns Hopkins finds that over 250,000 deaths annually are the result of medical errors.

Trauma to the brain affects 2.5 million people each year, yet the functions that are affected and the lifestyle changes may vary drastically.

Drunk drivers engage in reckless driving behavior, often resulting in horrendous car crashes which cause severe injuries such as traumatic brain injury.

Lawyers, like Major League Baseball players (and every homo sapiens who has ever walked the planet) make errors. Baseball errors are defined, expansively and in exquisite detail, in MLB Scoring Rule 10.12. The benchmark attorneys must meet to avoid being charged with an error is, oddly, much more amorphous, to wit: that of a reasonably prudent attorney in the same or similar circumstances.

It is inescapable. Lately there has been a lot of buzz about artificial intelligence (AI).