Washington Medical Malpractice Laws

Not all medical malpractice claims in Washington result in compensation. The state’s Office of the Insurance Commissioner’s five-year data from 2017 to 2021 showed that of the 3,507 claims received, only 1,617 resulted in payouts from insurance companies, and only 102 resulted in payouts from lawsuits. The majority of the lawsuits (39.3%) were filed in Kings County. 

The same data set shows that claimants who proceeded with filing lawsuits received higher compensation. Those who settled their claims with the insurance company received $493,786 in compensation on average per paid claim. Meanwhile, on average, those who filed lawsuits and either won or settled their cases received $1.3 million per settlement. Claimants that won jury verdicts received even higher amounts, at $2.2 million on average per lawsuit. 

It is notable that medical malpractice claims in Washington with the highest compensation payouts involved pediatrics, with $2.5 million per claim on average, followed by gynecology and obstetrics. 

One of the biggest medical malpractice payouts in Washington was for a birth defect case in King County with a $50 million jury verdict. Aware of a genetic defect in their family history, a couple sought testing for such defects in their unborn child. The medical center and the independent testing laboratory did not follow proper procedures, resulting in an incorrect diagnosis that the baby did not have the defect. This prevented the parents from making informed decisions about the pregnancy. 

If you have suffered an injury or the loss of a loved one under a medical professional’s care, you may have grounds for a medical malpractice claim. This article contains information on what qualifies as medical malpractice, who you can sue, and the legal concepts you need to know before filing a malpractice lawsuit.

What Qualifies as Medical Malpractice in Washington?

Revised Code of Washington Section 48.140.010(9) defines medical malpractice as “actual or alleged negligent act, error, or omission in providing or failing to provide health care services.” Simply put, it is an action or inaction that does not align with the acceptable standard of care expected from healthcare providers.

Unlike some states like Florida, Washington does not differentiate between “medical malpractice” and “medical negligence.” For a medical malpractice claim to succeed, the plaintiff must prove four elements, which will be discussed further in this article. 

Some examples of common medical malpractice include the following:

• Leaving foreign objects in the body or performing unnecessary surgery.

• Providing incorrect anesthetic or dosage.

• Reading laboratory results incorrectly or failing to diagnose. 

• Administering improper medication affecting the unborn child or using forceps and vacuum extractors incorrectly or excessively.

• Failing to take timely action during a dangerous situation in the emergency room.

• Performing medical procedures without the patient’s informed consent.

If you think that your injury may have been the result of a healthcare professional’s negligence, it is recommended that you consult a Washington medical malpractice attorney right away. Time is of the essence since some evidence may be lost. 

Who Can You Sue for Medical Malpractice in Washington?

Medical malpractice can be claimed against healthcare providers licensed in the state and members of the healing arts. Washington law lists the professions below, although it is not an exhaustive list:

• Acupuncturists and Eastern medicine practitioners

• Physicians

• Osteopathic physicians

• Chiropractors

• Dentists

• Podiatrists/podiatric surgeons

• Nurses

• Psychologists

• Physician assistants

• Hospitals, nursing homes, or entities employing one or more healthcare professionals.

Vicarious Liability Claims

There are some cases where you can sue the hospital, medical facility, or healthcare provider’s employer for vicarious liability in relation to medical malpractice. For example, if an unvetted physician committed malpractice while employed in a hospital that failed to conduct proper background or disciplinary checks, the hospital may be liable for exposing its patients to an unqualified healthcare professional. 

In 2021, Washington State officials were ordered to pay $3.25 million to the estate of a Monroe Correctional Complex prisoner. The prison’s medical staff ignored signs of infection from the prisoner’s open wound and failed to provide proper medical care, resulting in the prisoner’s death. The state became liable for hiring the prison’s medical director, who did not have adequate qualifications for the job. 

This is rooted in the legal doctrine of respondeat superior, or “let the master answer.”  Other cases of vicarious liability include inadequate training of employees and failure to monitor an employee accused of malpractice.

No Sovereign Immunity in Washington

Fortunately for injury victims, Washington abolished its sovereign immunity, which used to prevent injury lawsuits against the state government. Under current state laws, individuals who suffered damages or losses due to negligence by the state or its employees can now sue the government and its local agencies for compensation.

Good Samaritan Law

Under the state’s Good Samaritan Law, you cannot sue individuals, including healthcare providers, who render assistance in an emergency if their actions result in damage. However, this law will not shield healthcare providers from being sued if they were providing the emergency service with the expectation of compensation or during regular employment. Even when providing emergency care outside of work hours, healthcare providers can still be held liable for malpractice if they act with gross negligence. 

Medical Malpractice Liability Insurance Requirements

Medical malpractice insurance is not legally required in Washington State. However, most hospitals and medical facilities require physicians to have medical malpractice insurance as part of their terms of employment. A standard policy usually provides coverage of $1 million per medical malpractice claim and a $3 million collective cap per year. 

Moreover, the actual amount of coverage required by the employer will be based on the healthcare provider’s specialty. A surgeon would need more coverage than a general practitioner since surgeries come with more risks.  

What Is the Statute of Limitations in Washington for Medical Malpractice Cases?

The statute of limitations is the amount of time you have to file a lawsuit. Revised Code of Washington Section 4.16.350(3) indicates two general statutes of limitations for medical malpractice lawsuits below. If you miss these deadlines, you will not be able to claim compensation for your injury. 

• Within three years of the date when the alleged medical malpractice occurred. 

• Within one year of discovering the injury or when the injury and its cause should have been reasonably discovered. This is for cases when the injury takes a long time to display symptoms. If the victim is a minor, the lawsuit must be filed within one year of the parent/guardian discovering the injury. 

Washington has a statute of repose of eight years from the time the alleged medical malpractice occurred. This is the maximum time you have to file a lawsuit. 

If the medical malpractice results in the passing of the patient, a wrongful death action must be filed within three years of the death.

Exemptions

A medical malpractice case may be exempted from the statute of limitations mentioned above if the patient was prevented from discovering the injury through intentional concealment or fraud. Cases of foreign objects left inside the body are also exempted from the general statute of limitations. The patient or their representative will have one year from the time the injury was discovered to file the lawsuit. 

Public Entity Defendants

If you are filing a medical malpractice lawsuit against the government or one of its agencies or employees, you must first serve the defendant with a notice of intent to sue. Only after 60 days of serving the notice can you file the lawsuit. This is important to note if the medical malpractice occurred in a public hospital.

What Do You Need to Prove in a Washington Medical Malpractice Case?

Revised Code of Washington Section 7.70.030 requires the plaintiff to establish at least one of the elements below to receive compensation in a medical malpractice case: 

• The plaintiff’s injury is a result of the healthcare provider’s failure to provide an acceptable standard of care.

• The healthcare provider guaranteed the patient that the injury would not happen.

• The plaintiff or their authorized representative did not consent to the procedure or treatment that resulted in the injury.

Before 2009, patients must provide a certificate of merit from a medical expert to show that they have probable cause to sue for medical malpractice before being allowed to file a lawsuit. This requirement has since been determined unconstitutional by the Washington Supreme Court since it blocks the residents’ right to access the courts. 

You can now file a lawsuit and gather evidence to prove the merits of your case during the discovery phase. This is where working with an experienced attorney and medical experts would work to your advantage.

Lack of Informed Consent

Medical malpractice on the grounds of lack of informed consent is more than a missing signature on paper or verbal confirmation of consent to a medical procedure. The plaintiff must prove the following elements:

• The healthcare provider’s failure to give the patient material or important information about the procedure.

• The patient gave consent to the procedure without being fully informed of the material or important information.

• The patient would not have given their consent if they knew of the undisclosed material or important information. 

• The procedure resulted in the patient’s injury.

Note that in emergencies when the patient cannot give informed consent and they have no authorized representative to give consent, it is implied that the patient grants their consent to the recommended medical procedure. 

Pre-trial Mediation

All Washington medical malpractice lawsuits are required to go through mediation before going to trial. If the involved parties agree to undergo arbitration instead or the judge rules that arbitration is more appropriate, this mediation requirement may be skipped. 

Offers of Payment, Expressions of Apology

According to Washington medical malpractice laws, statements of apology, gestures of sympathy, and offers of payment for expenses are not admissible as proof of the healthcare provider’s liability or admission of fault. This is particularly applicable if the statements or offers were expressed within 30 days of the medical negligence happening or within 30 days of discovering that the negligence happened.

How Much Can You Sue For Medical Malpractice in Washington?

You can sue for both economic and non-economic damages resulting from your medical malpractice injury. Washington does not place a cap on the amount of damages you can be awarded. 

Types of Damages

Economic damages are financial losses that can easily be evaluated by your medical malpractice attorney through receipts, bills, and calculations of future expenses. These may include current and future medical expenses, therapy and rehabilitation expenses, lost earnings due to an inability to work, and property damage, if any.

Meanwhile, non-economic damages are those with no monetary value but have a significant impact on your quality of life. A formula that considers your regular lifestyle and income is used to compute non-economic damages. Non-economic damages cover pain and suffering, disability, loss of enjoyment of life, disfigurement, and emotional distress.

In Washington, punitive damages are not allowed to be awarded in personal injury cases like medical malpractice, unlike in other states. Punitive or exemplary damages are meant to punish gross negligence on the defendant’s part and not to compensate the plaintiff. 

Negligence System

If the plaintiff is found to be partly at fault for their medical malpractice injury, the pure comparative negligence rule is applied to calculate the final compensation award. Under this rule, your compensation will be reduced in proportion to your percentage of fault.

For example, if you were 30% at fault for not informing your physician that you are a chronic smoker despite this information being important to properly diagnose your chest pains, your compensation of $500,000 would be reduced by 30% to $350,000 only. 

The “pure” part of Washington’s comparative negligence system means injured parties can still recover some compensation even if they were found to be 99% at fault. 

Methods of Obtaining Compensation

Washington medical malpractice lawsuits can be settled in and out of court. Parties opt for these methods to help reduce expenses and time spent on trial. These methods include: 

• Mediation - This involves an impartial third-party mediator facilitating a settlement between the claimant and respondent. Settlements are voluntarily agreed upon between the parties and should not be forced by the mediator. 

• Arbitration - Arbitration is like a trial where the arbitrator acts as a judge and makes a decision on the medical malpractice claim. In mediation, it is the claimant and respondent who make decisions. Similar to a trial, arbitration involves witness testimonies, presentation of evidence, and opening and closing arguments. Unlike court trials, arbitrations are conducted in a private location, and the records are kept confidential. 

If the parties do not come to a settlement after mediation or arbitration, the last method to obtain compensation is through a court trial. 

How Much Does It Cost to Pursue a Medical Malpractice Case in Washington?

Attorneys who work on medical malpractice cases in Washington generally offer their services on a contingency fee basis. This means they only get paid after successfully obtaining compensation for the client’s damages. 

In a contingency fee agreement, the attorney will take a percentage of the client’s compensation as their professional fee. Contingency fees vary and may range from 33% to 45% based on the complexity of the case. 

According to data collected by Washington’s Insurance Commissioner from 2017 to 2021, the average contingency fee in medical malpractice cases is 36.5%. Medical malpractice lawsuits are high stakes, with an average legal fee of $458,092 per settlement. Firms or attorneys that have a specialization in medical malpractice usually charge contingency fees of 40% and up. 

Depending on your arrangement, the attorney’s contingency fee may already include expenses for court filing, transcription, medical expert testimonies, medical records gathering, etc. Court filing fees can easily cost you between $100 and $500. Medical experts can charge between $350 and $500 hourly or $2,500 and $4,000 daily for court testimonies.

Legal Resources for Medical Malpractice Victims in  Washington

Below are resources that can assist medical malpractice victims and their families. These resources provide legal information as well as access to legal professionals who can advise or represent you should you decide to file a case. 

Washington Department of Health

You can file a complaint with the Washington Department of Health against a healthcare professional who has committed unprofessional conduct or a facility that is operating unlicensed. The Washington DOH can be reached at (360) 236-4700.

Rehabilitation Institute of Washington

Rehabilitation Institute of Washington offers a rehabilitation program for brain injury victims with neurocognitive impairment and post-acute traumatic brain injury. The program aims to improve the victim’s condition in order to transition back into the community or work. The institute can be reached at (206) 859-5030. 

Northwest Justice Project

NJP, a legal aid program funded by the public, has a network of lawyers and paralegals across the state who can assist and represent qualified individuals in civil cases. It maintains Washington Law Help, an online legal library with self-help materials. It also connects residents to local resources and attorneys who can provide free or low-cost legal assistance. If you are in King County, call the NJP hotline at 211. If outside King County, the hotline is 1-888-201-1014. 

King County Bar Association Pro Bono Services

The association’s Pro Bono Service Department offers legal assistance and referrals to eligible individuals in the county. The department is composed of volunteer attorneys, law students, and paralegals. You can get a free 30-minute consultation at one of the association’s Neighborhood Legal Clinics. To apply for assistance, you can submit an online application or call the NLC line at (206) 267-7070 and leave a voice message.