An overview of Washington’s rules governing medical negligence claims, including the deadlines for filing a lawsuit and when those deadlines may be extended.
If you believe that you were harmed because of medical negligence, you might be thinking of suing the doctor or other health care provider who was responsible for your injury. While you'll almost certainly need to hire a medical malpractice attorney who will handle the details, a basic understanding of the process will help you avoid significant pitfalls—such as missing the deadline for filing a lawsuit. Compared to many other states, the medical malpractice laws in Washington state are relatively friendly to plaintiffs (the patients who sue medical providers). In this article, we'll give you an overview of the most important rules in Washington that could have an impact on how your case proceeds and how much your lawyer may charge. (You can find full text of the laws and rules discussed here at the Washington State Legislature's Laws and Agency Rules page.)
Washington's Statute of Limitations for Medical Malpractice Lawsuits
A statute of limitations is a law that sets a deadline for filing a lawsuit. If you miss the deadline and file too late, your case will almost certainly be thrown out of court.
Like most states, Washington has a statute of limitations specifically for medical malpractice cases. Generally, these lawsuits must be filed by one of two dates, whichever is later:
- three years after the alleged medical error that caused your injury, or
- one year after you discovered (or should reasonably have discovered) that the error caused your injury or medical condition.
If the injured patient was a minor (younger than 18), the discovery date will be when the minor's parent or guardian learned about the malpractice.
Washington also has an outside time limit (known as a "statute of repose") of eight years after the malpractice happened, regardless of when you discovered it or should have done so. However, this eight-year limitations period is "tolled" (legalese for paused) under certain circumstances—more on that below. (Wash. Rev. Code § 4.16.350 (2022).)
When the Medical Malpractice Statute of Limitations is Extended
Some circumstances will temporarily stop the running of the "clock" for purposes of Washington's statute of limitations in medical malpractice cases:
- The eight-year time period is tolled when a medical provider committed fraud or intentionally concealed the medical negligence, or when that negligence involved leaving a foreign object in your body. In these situations, you would have one year to file a lawsuit after discovering the fraud, concealment, or presence of the foreign object.
- The statute of limitations is also tolled while a plaintiff is so disabled that he or she can't understand the nature of the medical malpractice proceeding.
- A written, good-faith request for mediation of a dispute over potential medical malpractice will toll the statute of limitations for one year. (See below for the rules on mandatory mediation after a lawsuit is filed.)
(Wash. Rev. Code §§ 4.16.190, 4.16.350, 7.70.110 (2022).)
Mandatory Mediation for Medical Malpractice in Washington
Before you can go to trial in a medical malpractice lawsuit, Washington law requires that you and the defendant(s) (the healthcare provider(s) you are suing) go through a mediation process, unless:
- you already had an agreement with the medical provider to submit any malpractice claims to mandatory arbitration, or
- the judge or the mediator decides that mediation wouldn't be appropriate in your case.
Your lawyer will represent you at the mediation conference, but you will almost always have to attend as well. Anything said during mediation will be confidential. Unless you reach a settlement agreement (and sign it), nothing that happens during mediation will be legally binding on you or the defendant medical provider(s), and you will still have the right to go to trial. (Wash. Rev. Code §§ 7.70.100, 7.70.120; Wash. Superior Ct. Civil Rules, rule 53.4 (2022).)
Do You Need an Expert Witness in Washington Medical Malpractice Cases?
Many states try to prevent frivolous medical malpractice lawsuits by requiring plaintiffs to file, along with the initial complaint, an affidavit or certificate with a medical expert's opinion that the case has merit. Washington still has a law like this on the books, but the state's supreme court ruled in 2009 that the statute was unconstitutional, because it required plaintiffs to submit evidence before they could go through the "discovery" process, when both sides have the opportunity to obtain evidence from each other. By doing so, the law hindered plaintiffs' right of access to the courts. (Putman v. Wenatchee Valley Medical Center, P.S., 216 P.3d 374 (Wash. Sup. Ct. 2009).)
Just because you won't need to hire a medical expert before you can even file a medical malpractice suit in Washington, that doesn't necessarily mean you won't need one to win your case. In order to prove that the defendant committed medical malpractice, you must prove that the health care provider negligently failed to meet the proper medical standard of care, and that you were harmed as a result of that negligence.
Washington courts have found that expert testimony is usually necessary to prove negligence in medical malpractice cases, except in the relatively rare cases where a reasonable layperson could observe and describe the facts without medical training. An example of such an obvious malpractice case would be when a foreign object (like a scalpel blade) is left in a patient's body after surgery.
No Damage Caps in Washington Medical Malpractice Cases
Unlike many states, Washington has no limits on the amount of damages that plaintiffs can receive in medical malpractice cases, including noneconomic damages like pain and suffering. That means that if you win your case, you can collect whatever amount of money the jury awards you for your losses (unless the judge or a higher court reduces the award).
What Happens in Cases of Shared Fault for Medical Malpractice Injuries?
In medical malpractice cases where plaintiffs are partially to blame for their injuries, Washington state uses what's known as a "pure comparative negligence" rule to apportion liability for the damages. That means that even if you win your case, your award could be reduced in proportion to your share of the fault. For example, say that you suffered severe back problems because of an orthopedic surgeon's negligence during a botched surgery, but the jury found that you were 20% responsible for your injuries because you failed to follow the doctor's orders after the surgery and engaged in activities that made your condition worse. In that case, the surgeon would be liable for only 80% of your damages.
In Washington, there's no threshold of fault that would prevent you from collecting any damages from the defendant. So even if you were responsible for 99% of your injuries—with the defendant at fault for only the remaining 1%—you would still be technically entitled to collect 1% of the damages from the defendant.
When more than one defendant is responsible for your injuries (such as both a doctor and a hospital), Washington follows "joint and several" liability rules. That means that you could collect some or all of the verdict from any of the at-fault defendants, regardless of how much each is to blame. This could make things easier for you if one of the defendants is uninsured or underinsured. (Wash. Rev. Code §§ 4.22.005, 4.22.030, 4.22.070 (2022).)
Judicial Review of Attorneys' Fees in Medical Malpractice Cases
Washington, unlike some other states, doesn't set a limit on how much lawyers may charge for contingency fees in medical malpractice cases. However, Washington law requires judges to review the attorneys' fees in these cases in order to determine if they are reasonable, based on such criteria as the complexity of the case, the amount of work it required, typical fees in the same area, and the attorney's level of experience. (Wash. Rev. Code § 7.70.070 (2022).)
