Interpreting RCW 7.70.030 and an Overview of the Types of Medical Malpractice Cases in Washington
In Washington State, there is a special set of statutes (laws) that govern lawsuits involving injuries resulting from health care.[1]These are generally referred to as the medical malpractice or medical negligence statutes. In order to prove such a case, the burden rests upon the suing party to show one of the following:
(1) That injury resulted from the failure of a health care provider to follow the accepted standard of care;
(2) That a health care provider promised the patient or his or her representative that the injury suffered would not occur;
(3) That injury resulted from health care to which the patient or his or her representative did not consent.[2]
Each of the above propositions is a specific type of case based on Washington statutes and case law.
RCW 7.70.030(1) Standard of Care Medical Malpractice Lawsuit
The main type of medical malpractice case requires proving that a medical provider was negligent by failing to follow the accepted standard of care. The elements to be proven are located in RCW 7.70.040 and require the plaintiff to show:
(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;
(2) Such failure was a proximate cause of the injury complained of.[3]
The different terms and language of this statute has been discussed at length in various legal opinions.
First, the language “health care provider” is defined in RCW 7.70.020 and has come up in numerous cases.[4]The second part of the statute that the 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” has been the center issue in a large number of legal cases in Washington. Issues regarding what the same profession or class a medical provider is in, whether the plaintiff's expert needs to be a physician from Washington, and what the similar circumstances require are continually debated by lawyers throughout Washington. The last part of the statute requires the plaintiff to show that the injury occurred due to the negligence and not from something else. There may be issues about which health care providers can opine on causation[5]and what type of causation is required[6].
The standard medical negligence statute, RCW 7.70.040, is by one of the most important medical malpractice statutes in Washington State. It lays out the framework for how a standard negligence lawsuit against a health care provider must be proved. Each case has its own set of facts that often are debated amongst lawyers and ultimately lead to varying court decisions.
RCW 7.70.030(2) Health Care Provider Promise Lawsuit
The “promise” medical malpractice lawsuit is a rare type of medical malpractice case. Medical providers rarely promise a certain outcome from any medical situation because most of them understand that medicine has many variables that affect outcomes. Most of the time medical providers talk with the patients about the potential for risks or bad outcomes. Many of them also have patients sign consent forms which identify risks involved.
There are relatively few cases discussing a medical malpractice case centered around a medical provider's promise. One case is Hansen v. Virginia Mason Med. Ctr., which explained that there must be “an express undertaking or promise to obtain a specific result or cure through a procedure or a course of treatment.”[7] That case lays out the history of the promise lawsuit in medical malpractice and its origins in contract law. The court ultimately held that a statement relating to a potential outcome without undertaking a specific act could not constitute a promise. Without a clear statement by a medical provider about obtaining a specific result by undergoing a procedure or treatment, it can be very difficult to prove a promise medical malpractice lawsuit.
RCW 7.70.030(3) Informed Consent Medical Malpractice Lawsuit
A medical malpractice lawsuit based on informed consent requires proving that the health care provider breached the duty to secure informed consent of the patient or their representatives. The elements of proof are put forth in RCW 7.70.050 and require showing:
(a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment;
(b) That the patient consented to the treatment without being aware of or fully informed of such material fact or facts;
(c) That a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts;
(d) That the treatment in question proximately caused injury to the patient.[8]
All four of these elements must be shown in order to prove a case.
The first part, which requires a health care provider failing to inform the patient of a material fact. What constitutes a material fact is a legal issue that Washington courts have addressed incompletely.[9]Generally, a “material fact” in the informed consent statute is whether the medical risks were of a “material nature” which is a question that the jury must determine.[10]
The second part, that the patient consented without being aware or fully informed must be determined by the facts. If the patient did not consent at all, the legal issue may be one of battery. However, in informed consent, the issue turns on whether the patient was fully informed. In these cases, the patient still consents to the treatment but would not have if they were fully informed.
The third part requires an understanding of what the reasonably prudent patient would have done. One court described that in order to determine that, they must consider the situation of the particular plaintiff.[11]That means that the plaintiff's medical condition, age, risk factors, and treatment alternatives should be considered.[12]Therefore, the ultimate question for the jury is “what a reasonably prudent person in the plaintiff's situation would have done”.[13]
The fourth part is similar to the negligence causation standard. It requires a showing that based on a “reasonable degree of medical certainty” the injury was caused by the treatment in question.[14]Causation is an issue that is hotly contested in these cases and requires clear expert testimony to satisfy this element.
Conclusion
If you believe you have a case that falls into one of these types of categories, it is very important to contact a knowledgeable medical malpractice attorney. There are many factors to consider in deciding which type of case to file, the discovery involved, and the ways to challenge the defenses brought up. Contact Washington Personal Injury Law if you wish to discuss your case with an attorney.
[1] See RCW 7.70.010.
[2] RCW 7.70.030.
[3] RCW 7.70.040.
[4] See Reagan v. Newton, 436 Wn. App.2d 781, 436 P.3d 411 (Div. 2 2019) (analyzing the term health care provider as applied in the statute); See alsoSherman v. Kissinger, 146 Wn. App. 855, 195 P.3d 539 (Div. 1 2008) (holding that the medical malpractice statutes do not apply to veterinarians and veterinary clinics).
[5] See Frausto v. Yakima HMA, LLC, 188 Wn.2d 227, 393 P.3d 776 (2017) (holding an advanced registered nurse practitioner may be qualified to testify on the issue of causation if the testimony is sufficient under ER 702).
[6] See Mohr v. Grantham, 172 Wn.2d 844, 262 P.3d 490 (2011) (discussing causation requirements in loss of chance cases).
[7] 113 Wn. App. 199, 53 P.3d 60 (Div. 1 2002), review denied, 70 P.3d 964, 149 Wn.2d 1005 (2003).
[8] RCW 7.70.050.
[9] See Housel v. James, 172 P.3d 712, 141 Wn. App. 748 (Div. 3 2007) (finding that a physician's lack of experience is not categorically never a material fact, but in this case it was not material).
[10] Thomas v. Wilfac, Inc., 828 P.2d 597, 65 Wn.App. 255 (Div. 3 1992).
[11] Collins v. Juergens Chiropractic, PLLC, 467 P.3d 126, 13 Wash.App.2d 782, (Div. 2 2020) (discussing the reasonably prudent patient standard).
[12] Id.
[13] Id.
[14] See Driggs v. Howlett, 193 Wn. App. 875, 371 P.3d 61 (Div. 3 2016).
