Medical
Malpractice Information and Recovery
Medical
Malpractice occurs when a physician fails to properly
treat a medical condition and the negligent act
or omission is the cause of a new or aggravated
injury to the patient. Obviously the physician cannot
be responsible for the original underlying medical
problem. The negligence in medical malpractice cases
can occur in a variety of situations including but
not limited to:
There may be “medical malpractice”
by a delay or failure in diagnosing a disease; a
surgical or anesthesia related mishap during an
operative procedure could constitute “medical
malpractice” or Malpractice may involve the
physician’s failure to gain the informed consent
of the patient for an operation or surgical procedure;
or a physician who has made the correct diagnosis,
may thereafter commit malpractice by failing to
properly treat the disease process.
Washington
has passed a new law that adds several hurdles to
bringing suit against negligent doctors and hospitals.
Attorneys must pay careful attention to all the
new requirements to avoid mistakes that could undermine
a claim.
Notice
required before filing suit
The
new law requires victims of medical malpractice
to notify potential defendants of their intent to
file suit at least 90 days before going to court.
This notice requirement reinforces the importance
of early consultation with an attorney and prompt
review of potential claims to avoid missing the
deadline for taking legal action.
Certificate
of Merit Required
The
law requires that lawsuits against negligent health
care providers be accompanied by a "certificate
of merit" signed by a qualified expert stating
that "there is a reasonable probability that
the defendant's conduct did not follow the accepted
standard of care" based on the information
known at the time of filing. The "reasonable
probability" threshold appears to be fairly
low, and the certificate does not require an explanation
of the expert's opinions. This provision forces
plaintiffs to find experts willing to testify before
filing suit and may make it more difficult to pursue
cases where errors are not evident from the medical
records but can be discovered only be deeper inquiry
into the events surrounding the injury.
Voluntary
Arbitration
Medical
malpractice cases brought in pasco, kennewick, richland
and west richland are encouraged to go to private
arbitration. Arbitration is intended to lead to
quicker and cheaper resolution of disputes by setting
firm timelines and limiting discovery. Cases submitted
to arbitration generally must be concluded within
nine months to a year. The arbitrator may award
no more than one million dollars in damages, and
the costs of arbitration are paid by the losing
party. Cases can be submitted to arbitration only
if both sides agree. A medical malpractice complaint
must include either an agreement to arbitrate or
a declaration from the plaintiff that she decided
against arbitration after reviewing the arbitration
provisions.
The Washington Legislature codified
requirements to bring a medical malpractice action
and the procedures to follow in RCW
7.70:
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
belongs, in the state of Washington, acting in the
same or similar circumstances;
(2) Such failure was a proximate cause of the injury
complained of. RCW
7.70.040
Mandatory
Mediation of Health Care Claims
(1) All causes of action,
whether based in tort, contract, or otherwise, for
damages arising from injury occurring as a result
of health care provided after July 1, 1993, shall
be subject to mandatory mediation prior to trial.
(2) The supreme court shall
by rule adopt procedures to implement mandatory
mediation of actions under this chapter. The rules
shall address, at a minimum:
(a) Procedures for the appointment of, and qualifications
of, mediators. A mediator shall have experience
or expertise related to actions arising from injury
occurring as a result of health care, and be a member
of the state bar association who has been admitted
to the bar for a minimum of five years or who is
a retired judge. The parties may stipulate to a
non lawyer mediator. The court may prescribe additional
qualifications of mediators;
(b) Appropriate limits on the amount or manner of
compensation of mediators;
(c) The number of days following the filing of a
claim under this chapter within which a mediator
must be selected;
(d) The method by which a mediator is selected.
The rule shall provide for designation of a mediator
by the superior court if the parties are unable
to agree upon a mediator;
(e) The number of days following the selection of
a mediator within which a mediation conference must
be held;
(f) A means by which mediation of an action under
this chapter may be waived by a mediator who has
determined that the claim is not appropriate for
mediation; and
(g) Any other matters deemed necessary by the court.
(3) Mediators shall not
impose discovery schedules upon the parties
Statutes
of Limitations
A medical malpractice
action must be brought within three years of the
act or omission alleged to have caused the injury
or one year after the discovery of the alleged negligent
act or omission, whichever period expires later.
Wash. Rev. Code Ann. § 4.16.350 (West Supp.
1997). In no event may a medical malpractice action
be brought later than eight years after the date
of the alleged act or omission. Id. The limitations
period is tolled upon proof of fraud, intentional
concealment, or the presence of a foreign object
in the claimant. Id.
Please
contact one of the attorneys for Reinig & Barber
to discuss your case. You can be confident that
you are selecting attorneys that will respond to
your concerns and maximize your settlement potential.
Disclaimer: The personal injury, medical malpractice,
dental negligence, birth injury, traumatic brain injury,
negligence, wrongful death, product liability, accident,
crop loss or other legal information presented at
this site should not be construed to be formal legal
advice, nor the formation of a lawyer or attorney-client
relationship. Any results set forth here were dependent
on the facts of that particular case and the results
will differ from case to case. Feel free to contact
a medical malpractice lawyer, personal injury attorney,
or agriculture law specialist at our office in Kennewick,
Washington. This web site is not intended to solicit
clients for matters outside of the State of Washington.
Reinig
& Barber
