Medical Malpractice Law (Washington Health Care Provider Civil Liability Law)

Published in the King County Bar Association, Bar Bulletin Publication - September 2019

By Michael Sprangers and Mark Johnson

(First of Four Parts)

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 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, 104 P. 626 (1909).

In 1976, six plus decades after Helland, our state legislature codified Washington’s medical negligence law in RCW Chapter 7.70 and RCW 4.24.290CW 4.16.350, a statute of limitations applicable solely to medical negligence claims and first enacted in 1971, was also amended in 1976.

In addition, on several occasions since 1976, our legislature has enacted statutes applicable to tort law generally, which have impacted medical malpractice claims. Perhaps the most significant of those statutes is RCW 4.22.070 which, enacted in 1986, eliminated joint and several liability for tort damages in the absence of a “fault free” plaintiff, an agent/servant relationship, or defendants who were found to be acting in concert.

Finally, during several sessions in recent years, the legislature has enacted statutes applicable solely to medical malpractice claims that have included, inter alia:

• a special collateral source statute;

• a requirement that a statutory voluntary arbitration process be affirmatively accepted or declined at the time a case is filed;

• a mandatory mediation statute that incorporates a provision tolling the statute of limitations for one year;

• a requirement to submit a certificate of merit by an expert at the time of filing the case;

• a statute providing putative defendants with 90 days’ notice of the intent to sue; and

• statutes imposing an eight year period of repose and eliminating the tolling of minors’ claims.

As we will discuss, several of those statutes have failed to withstand constitutional scrutiny.

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.

RCW 7.70.030 states that “[n]o award shall be made” for “injury occurring as a result of health care” unless the plaintiff establishes one of three legal theories, by a preponderance of the evidence: (1) The failure of a health care provider to follow the accepted standard of care; (2) the injury resulted from health care to which the patient did not consent, or (3) the health care provider promised that the injury would not occur. The “promised it won’t happen” claim is the unicorn of medical malpractice law. They may exist but there have been, essentially, no credible sightings. See, Hansen v. Virginia Mason Med. Ctr., 113 Wn. App 199, 208-209, 53 P.3d 60 (2002), where the court held that “an enforceable promise under RCW 70.70.030(2) must relate to the provision of specific medical services and the practitioner must expressly undertake to commit to obtain certain results or cure through a procedure or course of treatment.” A diagnosis or prognosis “not related to a specific undertaking or a specific result or cure through a course of treatment or procedure” is insufficient to state a claim under the statutory subsection. Id., 207.

RCW 7.70.030(2) and (3), the breach of promise and informed consent subsections of the statute, both specify that it is the patient (or the patient’s representative) who has the standing to assert the claim.  The most commonly litigated of the three claims, the negligence claim, set out in RCW 7.70.030(1), does not incorporate the word patient, stating only: “That injury resulted from the failure of a health care provider to follow the accepted standard of care.”

Clearly, a health care provider-patient relationship gives rise to a duty of care. Paetsch v. Spokane Dermatology, 182 Wn.2d 842, 850, 348 P.3d 389 (2015). But some courts in Washington have found that a non-patient may bring a claim under RCW 7.70 in circumstances not classically considered to constitute providing health care.

In Daly v. United States, 946 F.2d 1467 (9th Cir. 1991) the court, applying the substantive law of Washington in a medical malpractice case brought pursuant to the Federal Tort Claims Act, found that a physician performing a pre-employment physical had a duty to inform the job applicant of abnormal test results. Id., 1471.

In Eelbode v. Chec Med. Ctrs., Inc., 97 Wn. App 462, 984 P.2d 436 (1999), Division II reversed the order of a trial court granting summary judgment in favor of the defendant medical clinic and held that a physical therapist conducting a pre-employment strength assessment owed the applicant a duty of care und RCW 7.70.030, noting, inter alia, that RCW 7.70.030(1) does not require a health care provider-patient relationship. Id., 467-470.

In a very recent (March 5, 2019) decision by Division II, the court held that a physician performing an independent medical exam on an injured worker at the request of the Department of Labor and Industries was subject to liability under Chapter 7.70, because he was providing health care and therefore owed a duty of care to the worker, irrespective of the lack of a traditional physician-patient relationship. Reagan v. Newton, 2019 Wash. App. LEXIS 485, 2019 WL 1033645. The court upheld the trial court’s dismissal of the claim because the plaintiff failed to present expert testimony that the examiner had violated the standard of care. Id. The court also held that Chapter 7.70 does not “supersede the common law cause of action for medical battery.” Id.

However, it is unclear whether our Supreme Court believes that a non-patient’s claim for injury by a health care provider may be brought under Chapter 7.70. In Paetsch, supra, the Court stated: “At common law, a plaintiff could not assert a cause of action for medical negligence absent a physician-patient relationship.” Id., 850. While acknowledging that other courts in the state had found a duty of care to non-patients under Chapter 7.70, the Paetsch Court declined to examine whether that was the rule in Washington. Id., 850 and footnote 6.

In Volk v. DeMeerleer 187 Wn.2d 241, 386 P.3d 254 (2016), the primary issue was whether a psychiatrist treating a mentally ill man on an outpatient basis owed a duty of care to unidentified but foreseeable third parties who were killed by the patient, thereby extending the Court’s holding in Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983), which held that pursuant to the Restatement (Second) of Torts, Section 315, a mental health professional treating an inpatient owes a duty of reasonable care to anyone foreseeably endangered by the patient and that such duty arises out of the special relationship between the professional and the patient.

The Volk Court affirmed the trial court’s dismissal of Volk’s Chapter 7.70 claim (reversing the court of Appeals) but found, as it had in Peterson v. State, infra, that there was a duty of care owed pursuant to the Restatement (Third), of Torts, Section 315. In so doing, the Court articulated a distinction between a claim for medical negligence and a claim for medical malpractice, stating:

“We begin by noting that Volk’s claim stemming from our Peterson decision is appropriately characterized as a medical negligence claim. As Volk has reiterated repeatedly, perhaps unartfully given the confusion surrounding the issue, the claim based on the Petersen duty is one of medical negligence, not medical malpractice. Though the difference may seem subtle, medical malpractice imposes a duty on the medical professional to act consistently with the standards of the medical profession, and the duty is owed to the medical professional’s patient. See Paetsch v. Spokane Dermatology Clinic, PS, 182 Wn.2d 842, 850, 348 P.3d 389 (2015). At common law, Washington does not recognize a cause of action for medical malpractice absent a physician/patient relationship. See Riste v. Gen. Elec. Co., 47 Wn.2d 680, 682, 289 P.2d 338 (1955). Pursuant to RCW 4.04.010, this common law approach is the law of Washington, and we have previously declined to adopt the view that medical malpractice suits are available to nonpatient third parties against physicians. See Paetsch, 182 Wn.2d at 850 n.6, 348 P.3d 389. Volk fails to address this common law requirement. We therefore affirm the trial court’s grant of summary judgment and reverse the Court of Appeals to the extent that it held that summary judgment was improper regarding the medical malpractice claims because neither Schiering nor her children were Ashby’s patients.

Restatement § 315 imposes an alternate duty to that imposed by medical malpractice. The § 315 duty, as articulated by this court in Petersen, is owed by the medical professional to a victim based on a special relationship between the mental health professional and the professional’s patient. See Petersen, 100 Wash.2d at 428, 671 P.2d 230. The foreseeability of the victim, as well as what actions are required to fulfill this duty, is informed by the standards of the mental health profession.”  

Id. 254-255.

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).

In Harbeson v. Parke Davis, Inc., 98 Wn.2d 460, 656 P.2d, 483 (1983), the Court held that a claim for wrongful birth on behalf of the parents of a child born with congenital anomalies and a claim for wrongful life on behalf of the child was cognizable under Chapter 7.70. In recognizing a child’s wrongful birth claim, the Court held that a duty of care arose prior to conception. “We now hold that a duty may extend to persons not yet conceived at the time of a negligent act or omission.” Id., 480.

(Our Supreme Court has chosen in two wrongful birth/life opinions to refer to a child born with congenital anomalies as “defective.” We decline to use that term other than where required in a direct quote from the Court.)

Wrongful birth/life causes of action may be brought as either an informed consent claim or a negligence claim. A wrongful birth/life informed consent claim is based on failure to provide material information necessary to make an informed decision on whether to prevent or terminate a pregnancy. Negligence claims are based on the failure to properly perform a sterilization procedure or an abortion. Wrongful birth and wrongful life claims do not apply to medical care provided after birth. See, Stewart-Graves v. Vaughan, 162 Wn.2d 115, 130-131, 133, 170 P.3d 1151 (2007).

The damages that the plaintiff-parents in a wrongful birth case may recover are:

“…pecuniary damages for extraordinary medical, educational, and similar expenses, attributable to the defective condition of the children. In other words, the parents should recover those expenses in excess of the cost of the birth and rearing of two normal children. In addition, the damages may compensate for mental anguish and emotional stress suffered by the parents during each child’s life as a proximate result of the physician’s negligence. Any emotional benefits to the parents resulting from the birth of the child should be considered in setting the damages.” Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 477 (1983).

The plaintiff-child in a wrongful life case may recover the extraordinary expenses attributable to the child’s physical and cognitive challenges (unless also awarded to the parents) but may not recover damages for physical and emotional pain and suffering and other “general” damages. Id., 479-482.

Parents of a healthy child born after a failed sterilization procedure may not recover the costs of raising the child but may recover the expense, pain and suffering, and loss of consortium associated with the failed procedure, the pregnancy, and childbirth. McKernan v. Aasheim, 102 Wn.2d, 411,421-422 687 P.2d (1984).

Washington also recognizes medical malpractice claims for the reduction of the chance of survival and the reduction of the chance of a better outcome. Mohr v. Grantham, 172 Wn.2d 844, 859, 262 P.3d 490 (2011). See also, Herskovits v. Group Health 99 Wn.2d 609, 664 P.2d 474 (1983).

Herskovits was a three vote plurality opinion, and in Mohr, the Court expressly adopted  that opinion. The compensable injury, a fact question for the jury, is the reduction of the chance of survival or of a better outcome, expressed as a percentage. Mohr, 172 Wn.2d, 858-859. The Herskovits plurality/Mohr Court adopted a “proportional damages approach.” The recoverable damages are calculated by determining the value of the plaintiff’s life, or the effects of the injury—had the patient survived or had the better outcome, and then awarding the percentage reduction found by the jury to have been proximately caused by the defendant’s negligence.

“[I]f the loss were a 40 percent chance of survival, the plaintiff could recover only 40 percent of what would be compensable under the ultimate harm of death or disability (i.e., 40 percent of traditional tort recovery), such as lost earnings.” Mohr v. Grantham, supra, 858-859, citing Herskovits v. Group Health 99 Wn. 2d, 635.

In a loss of a chance action, “traditional tort causation principles apply.” Therefore, plaintiff’s causation burden is the “but for” and not the “substantial factor” test. Dunnington v Virginia Mason Medical Center, 187 Wn.2d 629, 389 P.3d 498, 501 (2017).

Washington recognizes a common law cause of action for “medical battery” that falls outside of the scope of Chapter 7.70. Bundrick v. Stewart 128 Wn. App. 11, 114 P.3d 1204 (2005). The Bundrick Court, holding that medical battery claims were not extinguished by Chapter 7.70, distinguished between actions for the failure to obtain informed consent and battery—treatment to which the patient gave “no consent.” Id., 16-17.

RCW 26.44.030, Washington’s statute that requires certain professionals to report suspected child abuse, has been held to imply a civil remedy against physicians who fail to report suspected abuse. Beggs v. Dep’t of Soc. & Health Servs., 171 Wn.2d 69, 77-78, 247 P.3d 421 (2011). Beggs held expressly that such a claim is not precluded by Chapter 7.70, even though it is not “necessarily” health care. Id., 80.

A claim for wrongfully disclosing confidential patient information is actionable under both RCW 70.02, the Uniform Health Care Information Act, and Chapter 7.70. Berger v. Sonneland, 144 Wn.2d 91, 26 P.3d 257 (2001).

As discussed in Reagan v. Newton, infra, Chapter 7.70 does not supersede a common law claim for medical battery. Likewise, common law claims for intentional misrepresentation and the tort of outrage against health care providers are not governed by RCW 7.70. Young v. Savidge, 155 Wn. App. 806, 820-821, 230 P.3d 222 (2010); Doe v. Finch 133 Wn.2d 96,100-101, 942 P.2d 359 (1997).

Finally, Washington recognizes a Consumer Protection Act claim on behalf of a patient against a health care provider if the provider’s conduct relates to the entrepreneurial aspects of the practice of medicine, such as “billing and obtaining or retaining patients” but not “a doctor’s skills in examining, diagnosing, treating or caring for a patient.” Michael v. Mosquera-Lacy, 165 Wn.2d 595, 603, 200 P.3d 696 (2009).