Medical malpractice can be daunting to approach, especially without the legal background to assess the strength of your claim. Today’s blog discusses the basic elements of a medical malpractice claim that can better help you evaluate your case and what damages you might expect to receive in your situation.
Proving a Case of Medical Malpractice
To prove the occurrence of medical malpractice in Washington, the plaintiff must establish one or more of the following:
- the injury resulted from the failure of a health care provider to follow the accepted standard of care;
- a health care provider promised the patient or their representative that the injury suffered would not occur;
- the injury resulted from health care to which the patient or their representative did not consent.
Further, the necessary elements to prove that injury resulted from the failure of the health care provider to follow the accepted standard of care are:
- the health care provider failed to exercise the degree of care and skill expected of a reasonably prudent health care provider in the same or similar profession or class to which they belong;
- such failure was a proximate cause of the injury complained of.
Be aware that the plaintiff has the burden of proof to show each fact essential to an award for damages by a preponderance of the evidence.
Additionally, do note that under Washington law, a "health care provider" includes any of the following entities:
- a person licensed by the state to provide health care or related services including, but not limited to, an acupuncture and Eastern medicine practitioner, a physician, dentist, nurse, optometrist, surgeon, chiropractor, physical therapist, psychologist, pharmacist, midwife, physician's assistant, or physician's trained mobile intensive care paramedic;
- an employee or agent of a person described above; or
- an entity employing one or more persons described above, including, but not limited to, a hospital, clinic, nursing home, or director or agent of such organizations.
Filing a Lawsuit for Medical Malpractice
The statute of limitations for filing a case of medical malpractice in Washington is 3 years from the act that caused the injury. However, if the injury is discovered outside of the 3-year statute of limitations, a claimant has 1 year from the discovery of the injury to sue.
Note that in the case of wrongful death arising from medical malpractice, the statute of limitations for filing is within 3 years of the person’s passing. Read our blog on filing wrongful death lawsuits for more information.
Washington does not generally require expert testimony in all medical malpractice cases. For instance, obvious malpractice, such as cases involving foreign objects left in the body, are not required to call in expert testimony. However, recall that proving medical malpractice requires a claimant to prove that a health care provider deviated from the medical standard of care and that deviation caused the claimant’s injuries. As a result, unless the malpractice is an obvious and gross deviation from the standard of care such that a layman would understand it was malpractice, expert testimony is required.
Washington has no damage caps on medical malpractice cases, which cements it as a plaintiff-friendly state. The state operates under pure comparative negligence. In any tort matter, such as medical malpractice, the damages award is reduced in direct proportion to the claimant’s own percentage of fault. Note that a claimant’s own fault will never completely bar recovery. For example, even if you are found to be 99% at fault for your injuries, you are still technically entitled to collect 1% of any verdict. However, it is very uncommon in medical malpractice cases for the claimant to bear any percentage of fault, as it is unlikely for a claimant to be at fault for a health care provider’s mistakes.
Be aware that Washington also follows "joint and several" liability rules, which means that as long as a claimant bears no percentage of fault in a medical malpractice case, they may collect some or all of any verdict from any at-fault party, regardless of that party’s actual percentage of fault. In other words, if two doctors committed medical negligence and were each found to be 50% at fault, you could attempt to collect 100% of the verdict from one or both of the doctors.
Looking to Sue for Medical Malpractice?
If you feel you have been wrongfully treated by a health care provider, you have a right to take legal action in response to their negligent behavior. While Washington is a plaintiff-friendly state, it is advisable that you enlist help from an experienced attorney to take on your case. The attorneys at Hester Law Group can assess the circumstances of your injury and craft a strong claim for the damages that you deserve.
Contact Hester Law Group today to schedule your free consultation.