Washington Medical Malpractice Laws & Statutory Rules

An introduction to the laws and statutory rules governing medical negligence claims in Washington.

Medical malpractice law in Washington is an interesting mix of plaintiff-friendly rules peppered with a few laws that let health care providers mitigate any verdict entered against them. So, the playing field is relatively level. In this article, we'll present an overview of laws that could affect a  medical malpractice  claim in the state of Washington.

Statute of Limitations - Three Years

A statute of limitations sets a deadline for filing a lawsuit after some kind of harm has been suffered. The Washington medical malpractice statute of limitations is, at a basic level, three years from the act (or failure to act) that caused the injury.

If the injury is discovered outside the three-year statute of limitations, a claimant has one year from the discovery of the injury to bring suit.

Minors receive rather unique treatment under Washington law when it comes to medical malpractice. For years, there were conflicting laws on the books regarding when a minor’s custodial parent or guardian must bring suit for medical malpractice. In 1995, in the case of  Gilbert v. Sacred Heart Medical Center, the Washington Supreme Court resolved the conflict, definitively stating that the statute of limitations is tolled until a minor reaches the age of 18, at which point the minor is held to possess the same knowledge of the injuries as the parents or custodial guardian. This substantially altered a 1988 law that essentially made minors subject to the same statute of limitations as an adult. Effectively, parents or guardians can either file suit on their child’s behalf or the child can file suit within one year of their 18th birthday.

Wrongful death suits arising from medical malpractice  must be filed within three years of the decedent’s passing. This statute of limitations applies for all wrongful death cases in Washington, regardless of the cause.

Mandatory Mediation

Washington implemented a mandatory mediation program in 1993. Any claim involving health care must go through mediation as dictated by the rules of the Washington Supreme Court. Mediation tolls the statute of limitations for one year, but does not affect the right to a trial by jury.

Medical Expert Witness Requirements

Washington does not require expert testimony in all medical malpractice cases. As in other states, cases of obvious malpractice -- such as cases involving foreign objects left in the body -- are exempt from any expert requirements.

However, proving medical malpractice in Washington requires a claimant to prove that a health care provider deviated from the  medical standard of care, and that the deviation caused the claimant’s injuries. Unless the malpractice is an obvious and gross deviation from the standard of care -- meaning even a layman understands it was malpractice -- expert testimony is required.

No Damage Caps

Washington has no damage caps on medical malpractice cases. In fact, in 1989 the Washington Supreme Court held damage caps to be unconstitutional, eradicating a 1988 law imposing caps on non-economic damages. The lack of damage caps places Washington on the plaintiff-friendly end of the medical malpractice spectrum.

Liability Rules

Washington is a pure comparative negligence state. In any tort matter, including matters of medical malpractice, an award is reduced in direct proportion to the claimant’s own percentage of fault. However, a claimant’s own fault will never completely bar recovery. This means that if you are found to be 99% at-fault for your injuries, you are still technically entitled to collect 1% of any verdict from the defendant(s).

In medical malpractice cases it is uncommon for the claimant to bear any percentage of fault. Unlike a slip and fall or an auto accident, it is generally rather difficult for a claimant to be at fault for a health care provider’s mistakes.

Washington also follows "joint and several" liability rules. That means, as long as a claimant bears no percentage of fault in a medical malpractice case, he or she may collect some or all of any verdict from any at-fault party, regardless of that party’s actual percentage of fault. So, even if two doctors committed  medical negligence  and were each found to be 50% at fault for your injuries, you could attempt to collect 100% of the verdict from one or both of the doctors.

If the claimant bears any percentage of fault, doctors are responsible for their own percentage of fault only.

Statutory Caps on Attorneys’ Fees

In an interesting twist, Washington law allows  either party  charged with the payment of attorneys’ fees in a tort action to request a receipt of final billing and judicial determination of the reasonableness of fees. This is a unique law, because it could effectively limit the fees a successful plaintiff’s attorney can collect. Furthermore, it could also "short" a plaintiffs’ attorney if a losing defendant disputes the plaintiffs’ fees they are charge with paying as a result of losing the case. There is no question that this law is claimant and defendant friendly. It just isn't very lawyer-friendly.

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