(Medical Malpractice – Part 3 in a Several Part Series)

(This is the third part in a multiple part series pertaining to Medical Malpractice Law in Washington State. To read part one click here. To read part two click here.)

Medical Malpractice – Cognizable Claims (Continued from post two.)

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).

 (This article was written by Mark Johnson and Michael Sprangers. Mark and Michael’s practice focuses on medical malpractice, legal malpractice, and serious personal injury lawsuits. Their law firm Johnson Flora Sprangers PLLC is located in the Belltown neighborhood of Seattle, Washington.)  

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