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The Law of Medical Malpractice in Washington:

A Survey of Basic Considerations

Washington medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Washington are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Washington exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Washington by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Washington medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both non-lawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Washington. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through IX examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Washington.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Washington?
-Required Elements of a Medical Malpractice Claim in Washington
-Introduction
-The Four Basic Elements
-Standard of Care and Breach
-Causation

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Washington
-The Discovery Rule
-Introduction
-The Discovery Rule in Washington
-Tolling Provisions
-Fraud and Intentional Concealment
-Presence of Foreign Body
-Minors
-Incompetent or Disabled
-Final Thoughts

III. Statute of Repose
-Introduction
-Statute of Repose in Washington

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Washington
-State of Washington and Political Subdivisions
-Local Governmental Entities
-Good Samaritan Law
-Introduction
-Good Samaritan Law in Washington
-Additional Immunities and Limitations on Liability

V. Required Elements of a Medical Malpractice Complaint

VI. Expert Medical Witnesses
-Introduction
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Admissibility of Expert Testimony About Scientific Principles and Discoveries
-Introduction
-Admissibility of New Scientific Principles and Discoveries in Washington

VII. Comparative Negligence

VIII. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Washington

IX. Apologies and Gestures of Sympathy

X. Disclaimer

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Washington?

Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Medical malpractice actions are governed by Chapter 7.70 (Actions for Injuries Resulting from Health Care) of the Revised Code of Washington (“RCW”). In RCW §7.70.010, the Legislature declared its intent that all medical malpractice actions are governed by Chapter 7.70 as follows:

The state of Washington, exercising its police and sovereign power, hereby modifies as set forth in this chapter and in RCW 4.16.350, as now or hereafter amended, certain substantive and procedural aspects of all civil actions and causes of action, whether based on tort, contract, or otherwise, for damages for injury occurring as a result of health care which is provided after June 25, 1976.

The Washington Supreme Court acknowledged the exclusivity of Chapter 7.70 with respect to medical malpractice actions, stating “[w]hen injury results from health care, any legal action is governed by RCW chapter 7.70.” Berger v. Sonneland, 26 P.3d 257, 266 (Wash. 2001).

Medical malpractice actions against healthcare providers are limited to three categories by RCW §7.70.030 where:

  1. The injury resulted from the failure of a healthcare provider to follow the accepted standard of care;
  1. The healthcare provider promised the patient or his or her representative that the injury suffered would not occur;
  1. The injury resulted from healthcare to which the patient or his or her representative did not consent.

The statute requires the plaintiff bear “the burden of proving each fact essential to an award by a preponderance of the evidence.” RCW §7.70.030.

Required Elements of a Medical Malpractice Claim in Washington

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Washington law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim

Washington medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact as well as the proximate (legal) cause of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Four Basic Elements

Under Washington law, there are four basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff.

  1. Plaintiff must establish by competent evidence the standard and degree of care and skill expected of the average medical or dental practitioner, in the class to which defendant belongs, acting in the same or similar circumstances;
  1. Plaintiff’s evidence must establish that defendant failed to meet this standard of care;
  1. Plaintiff’s evidence must establish that defendant’s alleged failure to meet the standard of care was a proximate cause of the alleged damage; and
  1. Plaintiff’s evidence must establish that he or she suffered damage by reason of defendant’s failure to meet this standard of care. Hayes v. Hulswit, 73 Wn.2d 796, 797 (1968).

The Washington Supreme Court noted that the medical malpractice “elements are merely particularized expressions of the four concepts fundamental to any negligence action: duty, breach, proximate cause, and damage or injury.”Habeson v. Parke-Davis, Inc., 98 Wn.2d 460, 468 (1983).

Standard of Care and Breach

Washington has codified the applicable standard of care required of healthcare providers in RCW §7.70.040. It states:
The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care:

  1. The health care provider failed 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 or similar circumstances;
  1. Such failure was a proximate cause of the injury complained of.

Expert medical witness testimony is generally required to establish the applicable standard of care. Harris v. Groth, 99 Wn.2d 438, 449 (1983). In Harris, the Washington Supreme Court instructed:

In general, expert testimony is required when an essential element in the case is best established by an opinion which is beyond the expertise of a layperson. Medical facts in particular must be proven by expert testimony unless they are observable by a layperson’s senses and describable without medical training. Thus, expert testimony will generally be necessary to establish standard of care, and most aspects of causation. [internal citations and quotation marks omitted] Id.

Although the Washington Supreme Court has never laid down a rule that non-physicians are per se disqualified from testifying as experts in medical malpractice actions, the Court “has never accepted … a rule that would allow a non-physician to testify as an expert regarding the proper standard of care for a physician….”Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 227 (1989). The Court observed that “we have found no cases in which a non-physician is found competent to testify on a physician’s technical medical standard of care in a medical malpractice case.” Id. at 228.

Expert testimony is not always required such as in cases where the claim is based on facts within the knowledge and experience of a layperson. The Washington Supreme Court stated:

Non-expert testimony is sometimes admissible for matters such as observations of health, disease, or injury. Where the determination of negligence does not require technical medical expertise, such as the negligence of amputating the wrong limb or poking a patient in the eye while stitching a wound on the face, the cases also do not require testimony by a physician. Id. at 228.

Causation

Washington has codified proximate cause as an element of a medical malpractice action in RCW §7.70.040. It states:

The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care:

  1. The health care provider failed 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 or similar circumstances;
  1. Such failure was a proximate cause of the injury complained of.

The Washington Supreme Court defined proximate cause1 as follows:

The doctrine of proximate cause in Washington entails the two elements of cause in fact and legal causation. Cause in fact refers to the “but for” consequences of an act; it is the physical connection between an act and an injury. Cause in fact is generally a question for the jury, but it may become a question of law for the court when the facts are undisputed and the inferences therefrom are plain and incapable of reasonable doubt or difference of opinion.

The legal causation prong of proximate cause involves policy considerations of how far the consequences of a defendant’s acts should extend. It concerns whether liability should attach as a matter of law given the existence of cause in fact. [emphasis in original] Christen v. Lee, 113 Wn.2d 479, 507-508 (1989).

Legal cause focuses on “whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability.” Schooley v. Pinch’s Deli Market, Inc., 134 Wn.2d 468, 478-479 (1998). This analysis depends on “mixed considerations of logic, common sense, justice, policy, and precedent.” Hartley v. State, 103 Wn.2d 768, 779 (1985).

According to the Washington Supreme Court, “the general rule in Washington is that expert medical testimony on the issue of proximate cause is required in medical malpractice cases.” Reese v. Stroh, 128 Wn.2d 300, 308 (1995). The Court explained the rationale for requiring expert witness testimony on the issue of medical causation as follows:

The requirement of expert testimony to prove causation is a sound and logical rule…. [J]urors and courts generally do not possess sufficient knowledge and training to determine whether a physician’s or surgeon’s actions actually caused plaintiff’s injury. The medical field is foreign to common experience. The expert medical witness domesticates this field for the trier of fact, and counsel must be aware of this situation to best serve his client…. Id. (quoting Robert J. Rudock, Comment, Medical Malpractice—The Necessity of Expert Testimony and the Use of a General Physician as an Expert Witness in a Malpractice Action Against a Specialist, 10 Ohio N.U.L. Rev. 37, 47-48 (1983)).

1 A precise definition of proximate cause remains elusive, and there has been a great deal of confusion on the issue, even among the courts. A full examination of proximate cause is well beyond the scope of this article. For readers interested in learning more about proximate cause, begin by reading Schooley v. Pinch’s Deli Market, Inc., 134 Wn.2d 468 (1998); Harley v. State, 103 Wn.2d 768 (1985); Lewis v. Scott, 54 Wn.2d 851 (1959); and their progeny.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Washington

The standard statute of limitations governing medical malpractice claims is contained in RCW §4.16.350(3). It requires a medical malpractice claim to be “commenced within three years of the act or omission alleged to have caused the injury or condition….” Accordingly, under the standard medical malpractice statute of limitations, plaintiffs must commence an action within three years of the date on which the alleged negligence occurred.

The Washington Supreme Court made it clear that all claims based on medical malpractice are subject exclusively to the medical malpractice statute of limitations, noting “whenever an injury occurs as a result of health care, the action for damages for that injury is governed exclusively by RCW 7.70 [the medical malpractice Chapter].” Fast v. Kennecwick Public Hospital District, 384 P.3d 232, 236 (Wash. 2016) (quoting Branom v. State, 94 Wash.App. 964, 969 (1999)). Wrongful death claims based on medical malpractice are also governed by the medical malpractice statute of limitations as opposed to the general statute of limitations for all tort actions in RCW §4.16.080(2). In Fast, the Supreme Court ruled “we hold that in cases of wrongful death resulting from negligent health care, the medical negligence statute of limitations … applies.” Id. at 239.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Washington

Washington’s Discovery Rule is contained in RCW §4.16.350(3) and operates in tandem with the standard statute of limitations. It states that a medical malpractice action must be commenced within “one year of the time the patient or his or her representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later….” Id. That is, a plaintiff must commence an action either within three years of the date of the negligence or one year from the discovery that the injury was caused by a healthcare provider’s negligence, whichever limitations period expires later. The Washington Supreme Court described RCW §4.16.350(3) as providing “two alternative limitations periods. Actions must be commenced either within a standard 3-year limitation period or under an alternative 1-year discovery rule.” Adcox v. Children’s Orthopedic Hospital and Medical Center, 123 Wn.2d 15, 34 (1993).

According to the Washington Supreme Court, the “correct formulation of the discovery rule poses a question of law, but the application of the rule presents a question of fact.” Ohler v. Tacoma General Hospital, 92 Wn.2d 507, 510 (1979). In Ohler, the Supreme Court held that the one-year limitations period under the Discovery Rule begins to run when the injured party “discovered or reasonably should have discovered all of the essential elements of her possible cause of action, i.e., duty, breach, causation, damages.” Id. at 511. The Ohler Court concluded that the trial court erred as a matter of law when it ruled that the plaintiff’s cause of action accrued, and thus the limitations period commenced, when she discovered that her blindness was the result of too much oxygen administered by the hospital, but the fault of the hospital in administering the oxygen was not apparent at that time to the plaintiff. Id. at 510.

The Supreme Court noted that an essential element of a negligence cause of action was missing, i.e., defendant’s breach of duty, and without the presence of all four of the elements of a negligence cause of action, the one-year limitations period does not commence. Id. Furthermore, the question of when a plaintiff discovered or should have discovered his or her injury was the result of the defendant’s negligence is a question of fact for the trier of fact to answer. Id. at 511-512.

For purposes of the discovery of a defendant’s breach in determining when the one-year limitations period is triggered, “the plaintiff need not have known with certainty that the health care provider was negligent. Instead, the plaintiff need only have had, or should have had, information that the provider was possibly negligent.” Zaleck v. The Everett Clinic, 60 Wn.App. 107, 112 (1991). Once “the plaintiff has had ready access to information that a wrong has occurred[,]” he or she must exercise due diligence in discovering whether the defendant healthcare provider may have been negligent. Id. at 113-114.

According to the Washington Supreme Court, the “discovery rule does not require knowledge of the existence of a legal cause of action.” Reichelt v. Johns-Manville Corporation, 107 Wn.2d 761, 769 (1987). The Supreme Court instructed:

Mr. Reichelt would have us adopt a rule that would in effect toll the statute of limitations until a party walks into a lawyer’s office and is specifically advised that he or she has a legal cause of action; that is not the law. A party must exercise reasonable diligence in pursuing a legal claim. If such diligence is not exercised in a timely manner, the cause of action will be barred by the statute of limitations.

Tolling Provisions

The applicable statute of limitations may be tolled by specific statutory provisions. A plaintiff seeking to invoke a tolling provision to the statute of limitations bears the burden of proving that it applies. Cannavina v. Poston, 13 Wash.2d 182, 190-191 (1942).

Fraud and Intentional Concealment

RCW §4.16.350(3) itself provides that the statute of limitations is tolled upon proof of fraud or intentional concealment. In cases of proven fraud or intentional concealment, the statute of limitations is tolled “until the date the patient or the patient’s representative has actual knowledge of the act of fraud or concealment….” Id. In such cases, the patient or patient’s representative has one year from the date of the actual knowledge in which to commence a civil action for damages.” Id.

The Washington Supreme Court observed that RCW §4.16.350(3) contains two limitations periods, i.e., standard three-year and one-year discovery period, as well as an eight-year repose period. Duke v. Boyd, 942 P.2d 351, 353 (Wash. 1997). The Court added that all three time periods are interconnected and that all three are tolled if a plaintiff proves fraud or intentional concealment. Id.

Whether the defendant engaged in fraud or intentional concealment for purposes of the statute “is a question of fact for the trier of fact to resolve.” Duke v. Boyd, 942 P.2d 351, 352 (Wash. 1997). To establish fraud, it “must be proven by clear, cogent and convincing evidence[.]” Douglas Northwest, Inc. v. Bill O’Brien & Sons Construction, Inc., 64 Wash.App. 661, 678 (1992).

Presence of Foreign Body

Additionally, RCW §4.16.350(3) provides that the statute of limitations is tolled upon “the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect” left within the injured person’s body. According to the Washington Supreme Court, the “question of when a patient or representative reasonably should have discovered the injury was caused by medical negligence is normally an issue of fact.” Adcox v. Children’s Orthopedic Hospital and Medical Center, 123 Wn.2d 15, 34-35 (1993).

As is the case with fraud or intentional concealment, both limitations periods and the repose period are all tolled by the presence of a foreign body. Duke, 942 P.2d at 353. They are all tolled until the date “the patient or the patient’s representative has actual knowledge … of the presence of the foreign body….” RCW §4.16.350(3). Once the patient or patient’s representative has such actual knowledge, he or she has one year from that date to commence a medical malpractice action. Id.

Minors

RCW §4.16.190(2) eliminates the tolling of the statute of limitations for minors in the context of medical malpractice actions. However, it is important to note that the Washington Supreme Court held that RCW §4.16.190(2) “violates article I, section 12 of the Washington State Constitution….” Schroeder v. Weighall, 316 P.3d 482, 484 (Wash. 2014). That provision provides: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”

The Supreme Court ruled that there were no reasonable grounds for restricting the tolling provision for only medical malpractice claims brought by patients who were injured while they were minors. Schroeder, 316 P.3d at 487-488. As a result, minors may invoke the tolling provision of RCW §4.16.190(1), and presumably the applicable statute of limitations will begin to run once the injured minor turns 181.

Incompetent or Disabled

RCW §4.16.190(1) tolls the applicable statute of limitations if “at the time the cause of action accrued” the injured person is “incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings … the time of such disability shall not be a part of the time limited for the commencement of action.” The statute of limitations is tolled for as long as the injured person remains incompetent or disabled. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 224 (1989).

Final Thoughts

The application of Washington’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. This is especially true when the statute of repose is also implicated. The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Washington medical malpractice attorney. In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact a Washington attorney who specializes in medical malpractice law at the earliest possible opportunity.

1 As of the date of this article, it appears to be an open question whether the amended statute of repose in RCW §4.16.350(3) would bar a suit by a minor brought more than eight years after the date of the alleged negligence. The Washington Supreme Court held that the predecessor statute of repose was unconstitutional. See Section III of this article for discussion on statute of repose.

III. Statute of Repose

Introduction

Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Washington

Washington has an eight-year statute of repose that runs from the date of the occurrence of the act or omission that forms the basis of the medical malpractice claim. RCW §4.16.350(3). The statute reads, in pertinent part, as follows: “in no event shall an action be commenced more than eight years after” the date of the alleged negligence. Id.

However, it is important to note that the Washington Supreme Court ruled that the predecessor to the current statute of repose was unconstitutional. DeYoung v. Providence Medical Center, 960 P.2d 919, 926 (Wash. 1998). The Court held that the statute of repose “violates the privileges and immunities clause of the state constitution.” Id. In response to DeYoung, the Legislature amended the statute of repose in 2006 and, as discussed in the Notes to the statute, specifically attempted to address the constitutional deficiencies articulated by the Supreme Court in DeYoung. Accordingly, as of the date of this article, there is an eight-year statute of repose, but it is not necessarily settled law as to whether the amended statute passes constitutional muster.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Washington

State of Washington and Political Subdivisions

Washington abolished state sovereign immunity in 1961 and amended its waiver in 1963. McDevitt v. Harborview Medical Center, 316 P.3d 469, 472 (Wash. 2013). The current version of the statutory waiver is contained in RCW §4.92.090, which reads: “The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.”

In order to file suit against a government defendant under RCW §4.92.090, the plaintiff must comply with various procedural requirements. Chief among them is the presuit notice requirement in RCW §4.92.100. It requires all “claims against the state, or against the state’s officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct, must be presented to the office of risk management.” RCW §4.92.100(1). All claims for damages must be presented on the official Standard Tort Claim Form1 posted on the Office of Risk Management website. Id. Under the statute, the Standard Tort Claim Form must, at a minimum, require the following information:

  1. The claimant’s name, date of birth, and contact information;
  1. A description of the conduct and the circumstances that brought about the injury or damage;
  1. A description of the injury or damage;
  1. A statement of the time and place that the injury or damage occurred;
  1. A listing of the names of all persons involved and contact information, if known;
  1. A statement of the amount of damages claimed; and
  1. A statement of the actual residence of the claimant at the time of presenting the claim and at the time the claim arose.

Notably, with respect to the content of claims, the statute requires that it “must be liberally construed so that substantial compliance will be deemed satisfactory.” RCW §4.92.100(3).

The Standard Tort Claim Form must be filed at least 60 calendar days prior to the commencement of an action. RCW §4.92.110. It states: “No action subject to the claim filing requirements of RCW 4.92.100 shall be commenced against the state, or against any state officer, employee, or volunteer, acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim is presented….” Id. Medical malpractice actions brought against government defendants are subject to the normal statute of limitations provisions discussed in Section II of this article. However, the applicable limitations period is tolled during the 60-day notice period required by RCW §4.92.110.

Local Governmental Entities

Local government entities are subject to civil liability for their tortious conduct. RCW §4.96.010(1). The statute provides:

All local governmental entities, whether acting in a governmental or proprietary capacity, shall be liable for damages arising out of their tortious conduct, or the tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation.

All claims for damages against a local government entity must be presented on the official Standard Tort Claim Form2 posted on the Office of Risk Management website. RCW §4.96.020(3). Under the statute, the Standard Tort Claim Form must, at a minimum, require the following information:

  1. The claimant’s name, date of birth, and contact information;
  1. A description of the conduct and the circumstances that brought about the injury or damage;
  1. A description of the injury or damage;
  1. A statement of the time and place that the injury or damage occurred;
  1. A listing of the names of all persons involved and contact information, if known;
  1. A statement of the amount of damages claimed; and
  1. A statement of the actual residence of the claimant at the time of presenting the claim and at the time the claim arose.

As with claims against the state government, with respect to the content of claims, the statute requires that it “must be liberally construed so that substantial compliance will be deemed satisfactory.” RCW §4.96.020(5).

The Standard Tort Claim Form must be filed at least 60 calendar days prior to the commencement of an action. RCW §4.96.020(4). It states: “No action subject to the claim filing requirements of section shall be commenced against any local governmental entity, or against any local governmental entity’s officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim has first been presented….” Id. Medical malpractice actions brought against local government defendants are subject to the normal statute of limitations provisions discussed in Section II of this article. However, the applicable limitations period is tolled during the 60-day notice period required by RCW §4.96.020(4).

For purposes of the statute, the term ‘local governmental entity’ “means a county, city, town, special district, municipal corporation as defined in RCW 39.50.010, quasi-municipal corporation, any joint municipal utility services authority, any entity created by public agencies under RCW 39.34.030, or public hospital.” RCW §4.96.010(2).

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Washington

Washington has enacted a general Good Samaritan law that is codified in RCW §4.24.300(1). The statute provides immunity from civil damages for any Good Samaritan who renders emergency care at the scene of an emergency. Both medical professionals and non-medical professionals are covered by the statute. In order for immunity to apply, the following requirements must be satisfied:

  1. Emergency care is rendered at the scene of an emergency;
  1. Emergency care is rendered without compensation or the expectation of compensation; and
  1. Emergency care is rendered without acts or omissions constituting gross negligence or willful or wanton misconduct.

The statute excludes from its protection “[a]ny person rendering emergency care during the course of regular employment and receiving compensation or expecting to receive compensation for rendering such care….” RCW §4.24.300(1).

For purposes of the statute, the term ‘gross negligence’ “is negligence substantially and appreciably greater than ordinary negligence.” Youngblood v. Schireman, 53 Wn.App. 95, 109 (1988). In addition, the term ‘wanton misconduct’ has been described as follows:

Wanton misconduct is not negligence, since it involves intent rather than inadvertence, and is positive rather than negative. It is the intentional doing of an act, or intentional failure to do an act, in reckless disregard of the consequences, and under such surrounding circumstances and conditions that a reasonable man would know, or have reason to know, that such conduct would, in a high degree of probability, result in substantial harm to another. [emphasis in original] Johnson v. Schafer, 110 Wn.2d 546, 549 (1988).

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Revised Code of Washington. Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Chapter 4.24 of the RCW.

1 To access the official Standard Tort Claim Form Packet, click here.

2 To access the official Standard Tort Claim Form Packet, click here.

V. Required Elements of a Medical Malpractice Complaint

In Washington, there is only one recognized form of action, and it is known as a “civil action.” Rule 2 of the Superior Court Civil Rules. A civil action is commenced by filing a complaint. Rule 3. A complaint is one of the authorized pleadings in Washington state courts. Rule 7. Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief.

The complaint must contain a caption “setting forth the name of the court, the title of the action, the file number if known to the person signing it, and an identification” as a complaint. Rule 10(a). The title must contain the names of all the parties to the action. Rule 10(a)(1). All allegations in the claim must be made in numbered paragraphs, and the contents of each, as far as practicable, must be limited to a statement of a single set of circumstances. Rule 10(b). Rule 10(e) sets forth specific technical requirements to which the compliant must conform, such as formatting, headings, etc.

Each allegation must “be simple, concise, and direct. No technical forms of pleadings or motions are required.” Rule 8(e)(1). The plaintiff may set forth two or more statements of a claim alternatively or hypothetically, either in one count or in separate counts. Rule 8(e)(2). The plaintiff may also state as many separate claims as he or she has regardless of consistency. Id.

The complaint must set forth a claim for relief that contains (1) a short and plain statement of the claim showing that the plaintiff is entitled to relief and (2) a demand for judgment for the relief to which the plaintiff believes entitled. Rule 8(a). In any medical malpractice action for personal injury, “the complaint shall not contain a statement of the damages sought but shall contain a prayer for damages as shall be determined.” RCW §4.28.360. That is, the statute prohibits a specific amount of damages being sought from being included in a complaint for personal injuries. Target National Bank, v. Higgins,321 P.3d 1215, 1220 (Wash. Ct. App. 2014).

According to the Washington Supreme Court, “Washington is a notice pleading1 state and merely requires a simple, concise statement of the claim and the relief sought.” Pacific Northwest Shooting Park Association v. City of Sequim, 158 Wn.2d 342, 352 (2006) (citing Rule 8(a)). The Supreme Court instructed that “pleadings are to be liberally construed; their purpose is to facilitate a proper decision on the merits, not to erect formal and burdensome impediments to the litigation process.” State v. Adams, 107 Wn.2d 611, 620 (1987). However, complaints “that fail to give the opposing party fair notice of the claim asserted are insufficient.” Pacific, 158 Wn.2d at 352. The notice pleading system “contemplates that discovery will provide parties with the opportunity to learn more detailed information about the nature of a complaint.” Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 222 (1992).

1 The other less commonly utilized system of pleading is fact or code pleading. For example, Oregon is a fact pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VI. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for non-medical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Washington follows the general in that expert witness testimony is generally required in medical malpractice cases. Harris v. Groth, 99 Wn.2d 438, 449 (1983). In Harris, the Washington Supreme Court advised:

In general, expert testimony is required when an essential element in the case is best established by an opinion which is beyond the expertise of a layperson. Medical facts in particular must be proven by expert testimony unless they are observable by a layperson’s senses and describable without medical training. Thus, expert testimony will generally be necessary to establish the standard of care and most aspects of causation. [internal citations and quotation marks omitted] Id.

Who Qualifies as An Expert Medical Witness

The starting point in the determination of whether a prospective expert medical witness is qualified to provide testimony in a medical malpractice case is Rule 702 of the Washington Rules of Evidence. Rule 702 states that a witness may qualify “as an expert by knowledge, skill, experience, training, or education….” The Washington Supreme Court instructed that “a physician must demonstrate that he or she has sufficient expertise in the relevant specialty” such that the expert is familiar with the procedure or medical problem at issue. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 229 (1989).

Under the rules set forth by the Washington Supreme Court regarding who qualifies as an expert, standard of care “must be established by the testimony of experts who practice in the same field.” McKee v. American Home Products Corporation, 113 Wn.2d 701, 706 (1989). For example, the “duty of physicians must be set forth by a physician, the duty of structural engineers by a structural engineer….” Id. In McKee, the Court ruled that a physician was not qualified to serve as an expert witness regarding the standard of care for the defendant pharmacists. Id. at 707. The Court stated “only a pharmacist who knew the practice and standard of care in this state could establish the standard of care for the defendants [pharmacists].” Id.

However, the proposed expert need not practice in the exact same specialty or practice area as the person against whom testimony is being offered as long as the expert can demonstrate expertise with respect to the specific issue on which he or she is offering testimony. Reese v. Stroh, 128 Wn.2d 300, 308-309 (1995). In Reese, the expert witness was board-certified in internal and pulmonary medicine, and the defendant was board-certified in internal medicine and allergy and immunology. Nevertheless, the expert was deemed qualified to provide opinion testimony against the defendant after an examination of his knowledge about and experience with the specific issue upon which he was offering expert opinion testimony. Id. at 308.

Similarly, the Court of Appeals ruled that a plastic surgeon was qualified to testify as an expert medical witness against an orthopedic surgeon specializing in musculoskeletal oncology after the expert demonstrated his knowledge and experience with the specific issues in question. Seybold v. Neu, 19 P.3d 1068, 1076 (Wash. Ct. App. 2001). In discussing the issue of relevant specialty analysis articulated by the Washington Supreme Court in Young in the determination of whether a proposed expert is qualified to provide opinion testimony, the Court of Appeals made it clear that the relevant specialty concerns the specific issue in question, not the overall practice specialty of the expert and defendant. Id. at 1075.

In Seybold, the Court of Appeals focused on the relevant specialties of (1) removal of cutaneous malignancies located within the subcutaneous space and (2) bone grafting. Id. That is, the relevant specialty analysis was not focused on the practice specialties of plastic surgery and orthopedic surgery, but rather the particular issues in dispute. Upon examination of the proposed expert witness, the Court was satisfied that he was qualified as an expert on the two issues based upon his training and experience with both procedures. Id. at 1075-1076. The point is that courts make determinations about whether proposed experts are qualified to testify on specific issues, not about an entire practice area or profession.

It is the job of the trial court to determine whether a proposed expert witness is qualified to provide testimony about the particular issue for which the testimony is being offered. Nordstrom v. White Metal Rolling and Stamping Corporation, 75 Wn.2d 629, 642 (1969). In carrying out this duty, trial courts have very broad discretion in determining whether a proposed expert is qualified to provide expert witness testimony on the issue in question. Balmer v. Dilley, 81 Wn.2d 367, 372 (1972). The trial court’s determination whether a proposed expert is qualified will be reversed on appeal only for manifest abuse. Id. Accordingly, trial courts have wide latitude in determining who is qualified to serve as an expert medical witness.

Admissibility of Expert Testimony

The Washington Supreme Court instructed that the “admissibility of expert testimony in Washington is governed by ER 702 [Rule 702]….” Reese v. Stroh, 128 Wn.2d 300, 305 (1995). The full text of Rule 702 reads: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

The Supreme Court noted that under its case law the admissibility determination “involves a two-step inquiry—whether the witness qualifies as an expert and whether the expert testimony would be helpful to the trier of fact.” Id. at 306. “The admissibility of expert testimony … requires a case by case inquiry.” State v. Willis, 87 P.3d 1164, 1167 (Wash. 2004). Whether a proposed expert qualifies as an expert medical witness is discussed in the preceding Sub-Section of this article. With respect to the second prong of the admissibility test, the Supreme Court pointed out that Rule 702 “requires only that an expert discussing causation have scientific, technical, or other specialized knowledge.” Frausto v. Yakima HMA, LLC, No. 93312-0 (April 27, 2017). The Court added “expert testimony may be excluded when it clearly cannot help the trier of fact” concerning the issue in question. Id. Once the trial court has determined that a person is qualified to serve as an expert witness, the opposing party’s criticism of the witness’ credentials and opinion testimony itself goes to the weight the jury should afford the expert’s testimony, not its admissibility. Id.

The Supreme Court instructed that “medical expert testimony must be based upon a ‘reasonable degree of medical certainty.’” Reese, 128 Wn.2d at 309 (quoting McLaughlin v. Cooke, 112 Wn.2d 829, 836 (1989)). That is, expert medical witness testimony “in medical malpractice cases must rise above speculation, conjecture, or mere possibility.” Id.

According to the Supreme Court, it is the role of the trial court to serve as the gatekeeper in determining whether an “expert’s testimony will assist the trier of fact and excluding evidence that does not meet this standard.” Id. The admission or refusal of expert witness testimony lies within the sound discretion of the trial court. State v. Cauthron, 120 Wn.2d 879, 885 (1993). A trial court’s decision regarding the admissibility of expert witness testimony will only be reversed on appeal upon a finding that the court abused its discretion. Id. Accordingly, trial courts have wide latitude in determining whether expert testimony is admissible.

Admissibility of Expert Testimony About Scientific Principles and Discoveries

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states1 follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of New Scientific Principles and Discoveries in Washington

Washington utilizes the Frye standard. State v. Riker, 123 Wn.2d 351, 359 (1994). “When the admissibility of novel scientific evidence is at issue, Washington courts initially turn to the general acceptance test derived from Frye.” [emphasis in original] Reese, 128 Wn.2d at 306. The Washington Supreme Court added that “[o]nce novel scientific evidence has been deemed admissible under Frye, the trial court must analyze whether that testimony is proper expert testimony under ER 702.” Id.

The Washington Supreme Court explained the admissibility analysis as follows:

[t]he admission of scientific testimony involves two related inquiries, each governed by separate standards. First, has the scientific theory or principle from which the evidence is derived garnered general acceptance in the relevant scientific community under the standard of Frye…? Second, is the expert testimony properly admissible under ER 702?

In examining the Frye question, we look to see: (1) whether the underlying theory is generally accepted in the scientific community and (2) whether there are techniques, experiments, or studies utilizing that theory which are capable of producing reliable results and are generally accepted in the scientific community. Under the Frye standard, our task is not to determine if the scientific theory underlying the proposed testimony is correct; rather, we look to see whether it has achieved general acceptance in the appropriate scientific community. The core concern of Frye is only whether the evidence being offered is based on established scientific methodology. This involves both an accepted theory and a valid technique to implement that theory. [internal citations and quotation marks omitted] Riker, 123 Wn.2d at 359-360.

It is important to note that the Frye analysis is only applied when the admissibility of a new or novel scientific theory or methodology is at issue. Reese, 128 Wn.2d at 307. That is, expert opinion testimony “regarding the application of an accepted theory or methodology to a particular medical condition does not implicate Frye.” Id. Frye is inapplicable where the testimony in question is not based on novel scientific procedures but on practical experience and acquired knowledge. Id. In those cases that do not require a Frye analysis, admissibility “is weighed under the general reliability standards of ER 702 and ER 703.” Id. at 308.

1 In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard. For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

VII. Comparative Negligence

By statute, Washington follows the doctrine of pure comparative negligence. RCW §4.22.005. It states:

In an action based on fault seeking to recover damages for injury or death to person or harm to property, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery. This rule applies whether or not under prior law the claimant’s contributory fault constituted a defense or was disregarded under applicable legal doctrines, such as last clear chance.

The Washington Supreme Court explained that the statute “calls for the finder of fact to compare the respective fault of the claimant and defendant.” Christensen v. Royal School District No. 160, 124 P.3d 283, 285 (Wash. 2005). The defendant has the “burden of pleading and proving the affirmative defense” of contributory (or comparative) negligence. Godfrey v. State, 84 Wn.2d 959, 965 (1975). Whether the plaintiff was contributorily negligent is a question of fact for the trier of fact to answer. Young v. Caravan Corp., 99 Wn.2d 655, 663 (1983).

The Supreme Court added that “contributory ‘fault’ on the part of a claimant diminishes proportionally the amount of damages that the claimant can recover.” Christensen, 124 P.3d at 285. The Supreme Court further explained:

even when a plaintiff is partially at fault for his own injury, his culpability is not of the same nature as defendant’s. A plaintiff’s negligence relates to a failure to use due care for his own protection whereas a defendant’s negligence relates to a failure to use due care for the safety of others. While a plaintiff’s self-directed negligence may justify reducing his recovery in proportion to his degree of fault, the fact remains that such conduct, unlike that of a negligent defendant, is not tortious. [emphasis in original] Seattle-First National Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 238 (1978).

Under the doctrine of pure comparative negligence, fault is determined and apportioned among the plaintiff and defendants by the trier of fact, and how much compensation the plaintiff can recover is limited by his or her relative share of fault. According to the Washington Supreme Court, “[u]nder our statutory concept of ‘pure’ comparative negligence, recovery may range from the most minuscule amount to near total recovery.” Godfrey, 84 Wn.2d at 965. With pure comparative fault, the plaintiff can be 99% at fault and still be eligible to obtain a damage award. Accordingly, the plaintiff’s recovery is simply reduced by his or her assigned percentage of fault, but not barred.

For example, if the trier of fact determines that the plaintiff is 60% at fault in contributing to his or her injuries, the plaintiff’s total damage award will be reduced by 60%. As a result, the maximum amount the plaintiff can receive is 40% of the total monetary recovery. Thus, if the total monetary recovery is $100,000, the plaintiff is entitled to only 40% of that amount or $40,000. Notice that the plaintiff in this example is actually deemed to be at greater fault than the defendant. Nevertheless, in a pure comparative negligence system, that is not a bar to recovery.

VIII. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Washington

Washington law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases. However, there are two provisions governing fees of which plaintiffs with a medical malpractice claim should be aware.

First, RCW §7.70.070 governs attorney fees in medical malpractice actions. It requires the court in any medical malpractice action to “determine the reasonableness of each party’s attorneys fees.” Id. In doing so, the court is required to take the following factors into consideration:

  1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  1. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  1. The fee customarily charged in the locality for similar legal services;
  1. The amount involved and the results obtained;
  1. The time limitations imposed by the client or by the circumstances;
  1. The nature and length of the professional relationship with the client;
  1. The experience, reputation, and ability of the lawyer or lawyers performing the services; and
  1. Whether the fee is fixed or contingent. Id.

There is also a limitation on fees that is generally applicable to tort actions under RCW §4.24.005, which subjects such fees to a court determination of reasonableness. Medical malpractice claims are a type of tort action, so the statute, on its face, applies to them. Under the statute, a plaintiff has the right to petition the court “for a determination of the reasonableness of” the attorney fees charged. Id. The petition must be made with 45 days of receiving the final billing or accounting from the attorney. Id.

In making a determination on the reasonableness of the fees, the court is required to take into consideration the following factors, which are identical to the factors enumerated in RCW §7.70.070 but with the addition of factors 9 and 10:

  1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  1. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  1. The fee customarily charged in the locality for similar legal services;
  1. The amount involved and the results obtained;
  1. The time limitations imposed by the client or by the circumstances;
  1. The nature and length of the professional relationship with the client;
  1. The experience, reputation, and ability of the lawyer or lawyers performing the services;
  1. Whether the fee is fixed or contingent;
  1. Whether the fixed or contingent fee agreement was in writing and whether the client was aware of his or her right to petition the court under the statute; and
  1. The terms of the fee agreement. Id.

IX. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Washington is among the states that have enacted an “I’m Sorry” law. It is contained in RCW §5.66.010. In contrast to similar statutes in some other states, Washington’s is not specific to healthcare providers. Instead, RCW §5.66.010 applies more broadly to benevolent gestures in connections with accidents in general, not limited to medical procedures.

The statute shields expressions of sympathy from being admissible as evidence in a civil action. It states:

The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident, and made to that person or to the family of that person, shall be inadmissible as evidence in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be made inadmissible by this section.

Notice that statements admitting fault are not protected by the statute and are thus admissible as evidence in a civil action.

The term ‘accident’ is defined as “an occurrence resulting in injury or death to one or more persons that is not the result of willful action by a party.” RCW §5.66.010(2)(a). The term ‘benevolent gestures’ means “actions that convey a sense of compassion or commiseration emanating from humane impulses.” RCW §5.66.010(2)(b). Finally, the term ‘family’ means “the spouse or the domestic partner, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted child of a parent, or spouse’s or domestic partner’s parents of an injured party.” RCW §5.66.010(2)(c).

Although expressions of sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Washington understand that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of sympathy may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

X. Disclaimer

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