A SURVEY OF WASHINGTON MEDICAL MALPRACTICE LAW

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1 A SURVEY OF WASHINGTON MEDICAL MALPRACTICE LAW Philip A. Talmadge* Ann Marie Neugebauer** TABLE OF CONTENTS I. Introduction II. Anatomy of the Professional Malpractice Action A. Relation of Malpractice to Tort Law B. The Elements of an Action for Malpractice Standard of Care a. Expert Testimony b. Geographic Frame of Reference c. Standard of Care for Specialists d. Different Therapeutic Schools Violation of the Standard of Care Proximate Cause Damages to the Plaintiff III. Res Ipsa Loquitur: Special Handling for the Egregious C ase IV. Etiology: Common Causes of Malpractice A. Misdiagnosis by a Practitioner B. Injection/Transfusions C. Drug/Chemical Problems D. X -R ays E. Premises and Faulty Equipment F. Surgery G. Objects Lost in the Body * B.A., (magna cum laude) 1973, Yale University; J.D., 1976 University of Washington. Shareholder, Karr, Tuttle & Campbell, Seattle, Washington; Washington State Senator for the 34th Legislative District of King County. ** Assistant Attorney General, State of Washington; B.A. 1982, Indiana University; J.D., 1986, University of Washington. The opinions expressed in this article are those of the authors and not necessarily of the Office of the Attorney General. This author wishes to thank the firm of Lee, Smart, Cook, Martin & Patterson, P.S., Inc., Seattle, Washington, for the use of its resources in the development of this article while she was associated there.

2 268 GONZAGA LAW REVIEW [Vol. 23:267 H. Administration of Anesthesia... I. A bandonm ent... V. Informed Consent: A Separate Species of Malpractice A ction s VI. Wrongful Birth/Wrongful Life VII. M iscellaneous Questions A. Good Samaritan Laws B. M alicious Prosecution C. Frivolous Action D. Damages and Costs E. Inter-Disciplinary Regulation F. Medical Disciplinary Board VIII. Defense to M alpractice A. Statutes of Limitations B. Tort Reform Efforts IX. Conclusion X. A ppendix I. INTRODUCTION In recent years, American states have continued to experience significant numbers of malpractice actions commenced against health care professionals and institutions. No segment of the health care profession has escaped the impact; liability insurance premiums for all health care practitioners, including physicians, dentists, and hospitals, have increased. Although there may be several solutions to the problem of rising numbers of malpractice suits, an important one is prevention. Health care practitioners and the attorneys who advise them should be familiar with malpractice law because a general understanding of the legal concepts will help the practitioner avoid malpractice situations.' General understanding has become increasingly difficult. The substantive law of malpractice has been undergoing a period of change as state legislatures have attempted to address the rise in the number of malpractice suits and courts have been faced with new issues posed by emerging technologies. This article summarizes the current substantive law of medical malpractice in the 1. See WASH. REV. CODE ; (1987). An excellent source on the prevention of malpractice, especially for the health care practitioner, is ROBERTSON, MEDICAL MALPRACTICE: A PREVENTATIVE APPROACH (1985).

3 1987/88] MEDICAL MALPRACTICE State of Washington. II. ANATOMY OF THE PROFESSIONAL MALPRACTICE ACTION A. Relation of Malpractice to Tort Law An action for professional malpractice is essentially an action for negligence on the part of the health care practitioner. As in other actions for negligence, the injured plaintiff bears the responsibility of proving the necessary elements of a negligence action. These elements are: the existence of a duty to the plaintiff, breach of the duty, proximate causation and damages. However, in response to the growing problem of malpractice lawsuits, some state legislatures, including the Washington Legislature, have narrowly defined the elements of malpractice. B. The Elements of an Action for Malpractice Prior to 1975, Washington case law set forth four elements of a malpractice action. In order to demonstrate a prima facie case, the plaintiff had to prove by competent evidence: (1) the standard of care and skill expected of the average practitioner in the class to which the practitioner belonged acting in the same or similar circumstances; (2) the practitioner failed to meet this standard of care; and (3) the violation of the standard of care was the proximate cause of harm; and (4) the plaintiff suffered damage by reason of the practitioner's failure to meet this standard of care. 2 The Washington Legislature codified these elements in 1975 when it enacted RCW : "In any civil action for damages based on professional negligence... the plaintiff, in order to prevail shall be required to prove by a preponderance of the evidence that the defendant or defendants failed to exercise that degree of skill, care, and learning possessed at that time by other persons in the same profession, and that as a proximate result of such failure the plaintiff suffered damages...,3 2. Hayes v. Hulswit, 73 Wash. 2d 796, 797, 979, 440 P.2d 849, 850 (1968). 3. WASH. REV. CODE (1987). See also Harbeson v. Parke-Davis, Inc., 98 Wash. 2d 460, 656 P.2d 483 (1983); Wood v. Gibbons, 38 Wash. App. 343, 685 P.2d 619 (1984).

4 GONZAGA LAW REVIEW [Vol. 23: The Standard of Care Traditionally, the standard of care applied in most negligence cases is that of the reasonably prudent person. Compliance with customary practice, although evidence of reasonable care, is not dispositive. 4 The standard of care was defined by customary professional practice. The standard is flexible and cannot be reduced to bright line rules. In contrast, the standard of care for the medical profession used to be the degree of care and skill expected of the average practitioner. 5 In the 1974 case of Helling v. Carey,' the Washington Supreme Court changed this rule and held that in spite of customary medical practice, the physician was required to conform to the standard of the reasonably prudent physician. Hence, the definition of the standard of care became the prerogative of the court and not that of the medical profession. In Helling, the physician failed to perform a glaucoma test on a 30 year-old patient. The court held that because the test was simple, harmless, inexpensive and involved no judgment factor, the reasonably prudent physician should have given the test regardless of customary practice. The failure to do so was negligence as a matter of law.' In 1975, the Washington Legislature passed legislation which further defined the standard of care in a medical malpractice case. The Legislature indicated in RCW (1) what must be proven by the plaintiff: The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at the time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances.' Although several commentators felt that the Legislature intended to abolish the rule established in Helling v. Carey, the Washington Supreme Court has since held otherwise. 9 The Wash- 4. Harris v. Groth, 99 Wash. 2d 438, 442, 663 P.2d 113, 115 (1983), citing Blood v. Allied Stores Corp., 62 Wash. 2d 187, 193, 381 P.2d 742, 744 (1963). 5. See, e.g., Hayes v. Hulswit, 73 Wash. 2d 796, 797, 440 P.2d 849, 850 (1968) Wash. 2d 514, 519 P.2d 981 n.8 (1974). 7. Id. 8. WASH. REV. CODE (1) (1987). 9. Gates v. Jensen, 92 Wash. 2d 246, 254, 595 P.2d 919, 924 (1979) (with respect to WASH. REV. CODE , which requires the exercise of the skill, care and learning pos-

5 1987/88] MEDICAL MALPRACTICE ington health care practitioner, then, is still held to the same degree of care, skill and learning as the reasonably prudent practitioner. Under this standard, however, a health care provider is not expected to be infallible. In the recent case of Watson v. Hockett, 10 the Washington Supreme Court held that it was proper under the right circumstances in a medical negligence case for the trial court to instruct the jury: (1) that a physician does not guarantee a good medical result; (2) that a poor medical result is not, in itself, evidence of wrongdoing; and (3) that a physician is not liable for errors of judgment if the physician exercises reasonable care and skill within the applicable standard of care. The court noted that it was particularly appropriate to give such an instruction where the jury heard evidence or argument from which it might improperly reach the conclusion that doctors guarantee good results or that negligence can be implied from a bad result." The standard of care is fluid and changes as jurisprudential theory and medical technology change. It is difficult to precisely define the standard beyond the confines of given situations and time frames. However, state health regulations do determine the standard of care in some circumstances. Violation of state regulations is strong evidence of violation of the standard of care. For sessed by others in the medical profession, rather than that practiced); Harris v. Groth, 99 Wash. 2d 438, 444, 663 P.2d 113, 116 (1983) (with respect to WASH. REV. CODE (1), which requires exercise of the skill, care, and learning expected of a reasonably prudent health care provider in his or her respective profession or class) Wash. 2d 158, 727 P.2d 669 (1986). 11. The Court stated: The "no guarantee," "bad result" and "error in judgment" instructions discussed above, to use the phraseology of Miller, "supplement" the standard of care; while they may clarify it, they do not change it. Thus, these instructions can only be given in connection with a proper standard of care instruction. The instructions approved in Miller were not mentioned in Harris and are unaffected by it. The purpose served by these instructions, used in the manner and form approved herein, is best described by using the words of one commentator who, in discussing similar supplemental or clarifying instructions, stated that these doctrines provide useful watchwords to remind judge and jury that medicine is an inexact science where the desired results cannot be guaranteed, and where professional judgment may reasonably differ as to what constitutes proper treatment. (Court's emphasis. Footnotes omitted.) 107 Wash. 2d at , 727 P.2d at See also Miller v. Kennedy, 91 Wash. 2d 155, 588 P.2d 734 (1978).

6 GONZAGA LAW REVIEW [Vol. 23:267 instance, one court found there was sufficient evidence for the jury to find the physician negligent where the physician failed to treat an infant's eyes with silver nitrate after birth, as required by the regulations. 12 a. Expert Testimony In ordinary practice, the testimony of a professional equal is required to establish the professional standard of care.' s Non-physicians may qualify as expert witnesses under certain circumstances." 4 It is customary practice for defendants in medical malpractice actions to move for summary judgment on the grounds that the plaintiff has not produced an expert witness to establish the standard of care, violation thereof and proximate cause. Plaintiffs have two options in opposing such motions. First, the plaintiff can demonstrate that the affidavit of an expert witness is not necessary to establish a genuine issue of material fact. Expert testimony is not necessary if the applicable standard of care and its violation is within the common knowledge of laymen." 5 The plaintiff may also dispense with expert testimony if the doctrine of res ipsa loquitur is applicable.'" Second, the plaintiff can argue for a continuance, based on CR 56(f), to gain more time to locate an expert witness and secure a controverting affidavit. 17 However, the plaintiff should not be able 12. Jordan v. Skinner, 187 Wash. 617, 60 P. 697 (1936). But see 1986 Wash. Laws ch See Noel v. King County, 48 Wash. App. 227, 738 P.2d 692 (1987); Harris v. Groth, 31 Wash. App. 876, 645 P.2d 1104 (1983), affd, 99 Wash. 2d 438, 663 P.2d 113 (1983); Swanson v. Brigham, 18 Wash. App. 647, 571 P.2d 217 (1977); Stone v. Sisters of Charity of the House of Providence, 2 Wash. App. 607, 469 P.2d 229 (1970); Shoberg v. Kelly, 1 Wash. App. 673, 463 P.2d 280 (1969); but see Schoening v. Grays Harbor Hospital, 40 Wash. App. 331, 698 P.2d 593 (1985). 14. Harris v. Groth, 99 Wash. 2d 438, 663 P.2d 113 (1983). 15. Id. 16. See infra II. However, it is questionable whether certain procedural effects of the doctrine are still applicable under WASH. REv. CODE CR 56(f) provides: Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to

7 1987/88] MEDICAL MALPRACTICE 273 to obtain a continuance simply upon asserting that an expert has not yet been located. Case law indicates that CR 56(f) provides a remedy only if the party knows of the existence of a material witness and shows good reason why the affidavit of a witness cannot be obtained in time for the summary judgment proceedings. 18 CR 11 also indicates that failure to locate an expert witness is not an acceptable ground upon which to ask for continuance. CR 11 suggests that a plaintiff must locate an expert witness before filing the medical malpractice lawsuit. Under the rule, an attorney must make a reasonable inquiry into the facts. 19 permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. 18. Cofer v. County of Pierce, 8 Wash. App. 258, 262, 505 P.2d 476 (1973). In Cofer, the plaintiff had an expert witness who was prepared to testify, and whose testimony would create a genuine issue of material fact. The witness was hospitalized when defendant brought the summary judgment motion and plaintiff could not obtain an affidavit. But see Brown v. Peoples Mortgage Co., 48 Wash. App. 554, 739 P.2d 1188 (1987); Lewis v. Bell, 45 Wash. App. 192, 724 P.2d 425 (1986) (Unexplained delay in taking key depositions precluded continuance under CR56[f]). 19. CR 11 provides: The signature of a party or an attorney constitutes a certificate by him that he has read the pleading, motion, or legal memorandum; that to the best of his knowledge, information, and belief, formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or a reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. This rule was amended effective September 1, 1985, to require reasonable inquiry regarding the validity of alleged facts. Washington's CR 11 is patterned after the Federal Rules of Civil Procedure and federal interpretation of Fed. R. Civ. P. 11 has persuasive authority in Washington. State v. Burton, 101 Wash. 2d 1, 676 P.2d 975 (1984). FRCP 11 requires a reasonable pre-filing inquiry into both the law and the facts to satisfy the requirements of certification. 3A L. ORLAND, WASH- INGTON PRACTICE 5141 (Supp. 1986); Advisory Committee Note, 97 F.R.D. 165, 198. Unlike the subjective good faith of an attorney, the reasonable inquiry requirement is an empirically verifiable fact or event, inasmuch as the court can examine the efforts undertaken by the attorney to investigate the claim prior to filing suit. Mohammed v. Union Carbide Corp., 606 F. Supp. 252, 261 (D. Mich. 1985) (focus of the court's inquiry should be on verifiable events). The reasonable inquiry standard at the very least requires some kind of investigative effort and affirmative conduct on the part of the attorney before filing the claim. Id. A factual investigation must be made prior to filing a pleading. Hale v. Harney, 736 F.2d 688, 692 (5th Cir. 1986). In interpreting Fed. R. Civ. P. 11, the federal courts take the position that the factual investigation must focus upon the party's ability to prove the specific elements of its case. For instance, when the plaintiff's attorney failed to spend money to obtain a market survey, where an element of the cause of action required a showing of substantial market share, the attorney violated Rule 11. Norton Tire Co., Inc. v. Tire Kingdom Company, Inc., 108 F.R.D.

8 GONZAGA LAW REVIEW [Vol. 23:267 In a medical malpractice case, the pre-filing inquiry entails the location of an expert whose testimony implicates the defendant physician, because medical expert testimony is necessary to establish the claim. Once a plaintiff has located an expert witness, the reasonable inquiry requirement of CR 11 is satisfied, and the plaintiff may file a complaint. When the defendant moves for summary judgment, the plaintiff can oppose the summary judgment motion by either filing an affidavit from the previously-acquired expert witness or by showing, under CR 56(f), good reasons for not being able to obtain an affidavit from the previously-acquired expert. b. Geographic Frame of Reference Under early American law, the practice standards for hospitals and professionals were those applied in locales such as towns, counties, or regions of a state. 2 0 The Washington Legislature eliminated the so-called "locality rule" to provide that the applicable territory for the standard of care is that of the entire State of Washington." 1 The effect of this change is that the rural practitioner will be held to have the same level of care, skill, and learning as that of the urban practitioner. In practice, however, the expert witness need not be from Washington in order to testify as to Washington's standard of care. Most expert witnesses will testify that Washington's standard does not differ from other states' standards, and their testimony concerning a "nation-wide" standard is admissible. 371, 373 (D. Fla. 1985). Failure to conduct an appraisal before filing an answer and counterclaim regarding fair market value constituted a violation of Rule 11. Olga's Kitchen of Hayward, Inc. v. Papo, 108 F.R.D. 695, 705 (D. Mich. 1985). Failure to obtain all of the plaintiff's medical records, and to carefully read those records which were obtained, before filing the complaint, was the basis for a Rule 11 violation in an action for damages from the use of tetracycline-based drugs. Albright v. Upjohn Co., 788 F.2d 1217, 1221 (6th Cir. 1986). On the other hand, plaintiff-employees, in an action against a pesticide plant for damages for injuries as a result of exposure to certain chemicals did not violate Rule 11 where the plaintiffs' attorney consulted with an expert, and received an oral opinion from a doctor who examined most of the claimants, prior to filing the action. Wagner v. Allied Chemical Corp., 623 F. Supp. 1407, 1411 (D. Md. 1985). 20. See Pederson v. Dumouchel, 72 Wash. 2d 73, 431 P.2d 973 (1967); Teig v. St. John's Hosp., 63 Wash. 2d 369, 387 P.2d 527 (1963). 21. WASH. REV. CODE (1) (1987); Adams v. Richland Clinic, Inc., P.S., 37 Wash. App. 650, 681 P.2d 1305 (1984) (State of Washington is appropriate territorial scope).

9 1987/88] MEDICAL MALPRACTICE c. Standard of Care for Specialists Whereas the ordinary practitioner holds himself or herself out as exercising the usual degree of skill and knowledge possessed by practitioners in the state, the specialist is held to a higher standard of care. The health care practitioner who holds himself or herself as having special knowledge or skill in the treatment of a particular organ, disease, or class of patients is bound to bring to the discharge of his services that degree of skill or learning ordinarily possessed by practitioners devoting special attention or studies to such organ, disease, or class of patients. For instance, an orthopedic surgeon is held to the standards of practice of a surgeon specializing in orthopedic surgery," a pediatrician to the standards of a physician who specializes in pediatrics, 2 and a specialist in obstetrics and gynecology to the standards of a physician specializing in those lines of practice. 2 " d. Different Therapeutic Schools Washington licenses various schools of therapy such as chiropractors, psychologists, osteopaths, naturopaths, etc., and imposes standards for the practice of health care for those schools. 25 The statutory formula for the standard of care for other therapeutic schools is the same as for the medical profession: the degree of care, skill and learning expected of a reasonably prudent health care provider at that time, in the profession or class to which the practitioner belongs, in the State of Washington, acting under the same or similar circumstances. 26 As in the case of specialists, where the practitioner utilizes the learning of a special school of health care, that practitioner is held to the degree of care, skill and learning of that school. The non-medical practitioner must meet the standards of his or her particular school in the same fashion as a medical doctor must meet the standards of the medical profession. This state holds the non-medical practitioner to the same standards of the 22. Meeks v. Marx, 15 Wash. App. 571, 550 P.2d 1158 (1976); See also Sears v. Lydon, 169 Wash. 92, 13 P.2d 475 (1932). 23. Attains v. Cline, 3 Wash. 2d 168, 100 P.2d 1 (1940). 24. Dinner v. Thorp, 54 Wash. 2d 90, 338 P.2d 137 (1959). 25. See WASH. REV. CODE Title WASH. REV. CODE (1) (1987).

10 GONZAGA LAW REVIEW [Vol. 23:267 medical profession when that practitioner presumes to act as a medical doctor. Where evidence does not demonstrate a difference between the standard of care for a therapeutic school and that of the medical profession, the member of the therapeutic school will be held to the same standards of a medical surgeon. 2 Members pf one school of medicine may testify against the practitioner of another if the methods of treatment of the two schools are or should be the same. 28 A limited practitioner must inform a patient when non-medical treatment becomes useless or harmful and medical treatment should be sought; 2 9 he or she must refer the patient to a practitioner capable of providing effective assistance. 8 0 The malpractice statutes dealing with the elements of an action for malpractice and the necessary burden of proof apply to health care practitioners generally, including nurses and practitioners in these various different therapeutic schools. 2. Violation of the Standard of Care A plaintiff must show by expert testimony that the standard of care was violated by the practitioner in order to present a prima facie case of malpractice. 31 Mere differences of professional opinion as to diagnosis or treatment, standing alone, do not prove negligence. 2 A bad result, without proof of violation of the standard, does not constitute negligence. 33 However, an "honest mistake" is no defense to the action for professional negligence; the sole deter- 27. Miller v. Peterson, 42 Wash. App. 822, 714 P.2d 695 (1986). 28. Id. 29. Mostrom v. Pettibon, 25 Wash. App. 158, 607 P.2d 864 (1980). 30. Kelly v. Carroll, 36 Wash. 2d 482, 219 P.2d 79 (1950); Carney v. Lydon, 36 Wash. 2d 878, 220 P.2d 894, 224 P.2d 634 (1950), cert. den., 340 U.S. 951 (1951). 31. Cochran v. Harrison Memorial Hosp., 42 Wash. 2d 264, 267, 254 P.2d 752, 755 (1953); see also Hurspool v. Ralston, 48 Wash. 2d 6, 290 P.2d 981 (1955). 32. Woods v. Pommerening, 44 Wash. 2d 867, 271 P.2d 705 (1954); Skodje v. Hardy, 47 Wash. 2d 557, 288 P.2d 471 (1955); Hayes v. Hulswit, 73 Wash. 2d 796, 440 P.2d 849 (1968); Adams v. Richland Clinic, Inc., P.S., 37 Wash. App. 650, 681 P.2d 1305 (1984). 33. Watson v. Hockett, 107 Wash. 2d 158,161, 727 P.2d 669 (1986); Miller v. Kennedy, 91 Wash. 2d 155, 588 P.2d 734 (1987); Teig v. St. John's Hosp., 63 Wash. 2d 369, 387 P.2d 527 (1963); Peddicord v. Lieser, 5 Wash. 2d 190,105 P.2d 5 (1940); Rundin v. Sells, 1 Wash. 2d 332, 95 P.2d 1023 (1939), cert. den., 310 U.S. 645 (1940); Brant v. Sweet, 167 Wash. 166, 8 P.2d 972 (1932); Hoffman v. Watkins, 78 Wash. 118, 138 P. 664 (1914); Meeks v. Marx, 15 Wash. App. 571, 550 P.2d 1158 (1976).

11 1987/88] MEDICAL MALPRACTICE minant of negligence is compliance with the standard of care. 34 An "unintentional" mistake is still actionable." A professional does not guarantee an outcome unless he specifically so contracts Proximate Cause To establish a prima facie case of professional malpractice, a plaintiff must show, by medical testimony, that the violation of a standard of care by the professional was the "proximate," i.e., legally sufficient, cause of injury or damage to the plaintiff. 3 7 The evidence will be deemed insufficient to support a verdict for the plaintiff where the medical testimony consists of an expert opinion that the injury "might have" or "possibly did" result from the hypothesized cause. 38 To be sufficient, the medical testimony must at least establish that the act complained of "probably" or "more likely than not" caused the injury." In addition, the medical testimony must exclude, as a probability, every hypothesis other than the one relied upon to establish the claim Damages to the Plaintiff As in other actions for negligence, a plaintiff who proves duty, breach and proximate cause to support the malpractice claim may receive compensatory damages. These are damages to restore the plaintiff to the condition enjoyed prior to the incident complained of in the lawsuit. Washington prohibits punitive damages in medical malpractice cases. 41 However, a plaintiff may recover punitive damages and reasonable attorneys' fees and costs insofar as Wash- 34. Watson v. Hockett, 107 Wash. 2d 158, 161, 727 P.2d 669 (1986). 35. Byerly v. Madsen, 41 Wash. App. 495, 704 P.2d 1236 (1985) rev. den. 104 Wash. 2d 1021 (1985) (Hospital failed to record EKG results on patient's chart before operation. The fact that all large hospitals, even if well run, make mistakes, is no defense). 36. Watson v. Hockett, 107 Wash. 2d 158, 161, 727 P.2d 669 (1986); Miller v. Kennedy, 11 Wash. App. 272, 522 P.2d 852 (1974); afj'd, 85 Wash. 2d 151, 530 P.2d 334 (1975), appeal after remand, 91 Wash. 2d 155, 588 P.2d 734 (1978). 37. Harris v. Groth, 99 Wash. 2d 438, 449, 633 P.2d 113 (1983); O'Donoghue v. Riggs, 73 Wash. 2d 814, 824, 440 P.2d 823 (1968). 38. O'Donoghue v. Riggs, 73 Wash. 2d 814, 824, 440 P.2d 823, 830 (1968). 39. Id. 40. Merriman v. Toothaker, 9 Wash. App. 810, 814, 515 P.2d 509, 512 (1973). 41. Helland v. Bridenstine, 55 Wash. 470, 478, 104 P. 626, 629 (1909); see also Kammerer v. Western Gear Corp., 96 Wash. 2d 416, 421, 635 P.2d 708, 711 (1981) (punitive damages cannot be recovered without statutory authorization); Barr v. Interbay Citizens Bank of Tampa, Fla., 96 Wash. 2d 692, 635 P.2d 827 opinion changed 649 P.2d 827 (1981) (same); Steele v. Johnson, 76 Wash. 2d 750, 458 P.2d 889 (1969) (same).

12 GONZAGA LAW REVIEW [Vol. 23:267 ington subjects a physician to the Consumer Protection Act, ch RCW.' 2 The Consumer Protection Act is applicable to the entrepreneurial aspects of medical services, which fall into the "trade or commerce" definition of the Act. 43 These aspects include how the prices of medical services are determined, how services are billed, and how debts are collected." A claim for lack of informed consent can be based on dishonest and unfair practices such as promotion of an operation or service to increase profits and volume of patients without adequate advice regarding risks and alternatives. 4 ' 5 The Consumer Protection Act does not apply to claims concerning the professional competence of the medical practitioner." In a medical malpractice action a plaintiff may recover general and special damages, which include past and future wage losses, medical expenses, past and future pain and suffering, disfigurement and, incapacity." legislation limits non-economic damages. 48 Furthermore, a negligent physician-defendant is liable for aggravation of injuries caused by the negligent act of a later treating physician.' 9 In Herskovits v. Group Health Cooperative of Puget Sound, 50 the Washington Supreme Court held that a plaintiff may recover a loss of a less than 50% chance of survival. However, to reach this result, the court had to depart from traditional causation princi- 42. See Quimby v. Fine, 45 Wash. App. 175, 724 P.2d 403 (1986), rev. den., 107 Wash. 2d 1032 (1987). 43. Short v. Demopolis, 103 Wash. 2d. 52, 691 P.2d 163 (1984), held that the Washington Consumer Protection Act applies to the entrepreneurial aspects of the practice of law. In Quimby, 45 Wash. App. 175, 724 P.2d 403, the court found no basis to distinguish legal practice from medical practice. 44. Short, 103 Wash. 2d at 61, 691 P.2d at Quimby, 45 Wash. App. at 181, 724 P.2d at Id. at 180, 724 P.2d at See, e.g., Gonzales v. Peterson, 57 Wash. 2d 676, 359 P.2d 307 (1961) (pain and suffering); Olson v. Weitz, 37 Wash. 2d 70, 221 P.2d 537 (1950) (future pain and suffering). See also 2 LOUISELL & WILLIAMS, MEDICAL MALPRACTICE, (1987); 61 Am. JuR. 2D Physicians, Surgeons, and Other Healers 368 (1981). The tort law for damages does not change when applied in malpractice actions. 2 Loui- SELL & WILLIAMS, MEDICAL MALPRACTICE, (1987) Wash. Laws ch Lindquist v. Dengel, 92 Wash. 2d 257, 262, 595 P.2d 934, (1979) Wash. 2d 609, 664 P.2d 474 (1983).

13 1987/88] MEDICAL MALPRACTICE ples, and its causation analysis has been severely criticized. 5 In Herskovits, the trial court rendered summary judgment in favor of the defendant hospital. The plaintiff did not produce expert testimony to establish that a delay in diagnosis of lung cancer "probably" or "more likely than not" caused Mr. Herskovits' death. Instead, the plaintiff had produced testimony that the chance of five year survival, at the time the tumor should have been diagnosed at a "stage I" level, was 39 percent, and the chance of survival when it was diagnosed at "stage II" was 25 percent. Mrs. Herskovits contended that the 14 percent loss of chance was recoverable. 2 Under traditional causation principles, the 14 percent loss of chance, from a less-than-even chance of survival, was not compensable. To demonstrate causation on a "more probable than not" basis, the plaintiff would have to demonstrate a greater than 50 percent change in chance of survival. Therefore, patients with a less than 50 percent chance of survival could not recover under traditional causation principles. A divided court allowed recovery for Mr. Herskovits' loss of chance. The lead opinion by Justice Dore allowed recovery by departing from traditional causation principles. Justice Dore concluded that the plaintiff's demonstration of increased risk of harm was sufficient to withstand a summary judgment motion. 3 In the plurality opinion, Justice Pearson reached the same result by adhering to traditional causation rules, but redefined the injury as the loss of chance rather than death. 4 Justice Pearson would allow loss of chance as recoverable under the wrongful death statute. 5 5 His approach, however, is seemingly inconsistent with Woodridge v. Woolett, 56 in which the Washington Supreme Court held that the value of a decedent's shortened life expectancy was not 51. See, e.g, Herskovits v. Group Health Cooperative of Puget Sound, 99 Wash. 2d 609, 664 P.2d 474 (1983), (Brachtenbach, Dolliver, JJ., dissenting); Note, Recovery for "Loss of Chance" in Wrongful Death Action-Herskovits v. Group Health, 99 Wash. 2d 609, 664 P.2d 474 (1983), 59 WASH. L. REV. 981 (1984). 52. Herskovits, 99 Wash. 2d at , 664 P.2d at Id., 99 Wash. 2d at , 664 P.2d at Id., 99 Wash. 2d at 634, 664 P.2d at Id., 99 Wash. 2d at , 664 P.2d at 487. The wrongful death statute is WASH. REV. CODE (1987) Wash. 2d 659, 638 P.2d 566 (1981).

14 280 GONZAGA LAW REVIEW [Vol. 23:267 recoverably under Washington's Survival statute. 57 III. RES IPSA LOQUITUR: SPECIAL HANDLING FOR THE EGREGIOUS CASE The Latin term res ipsa loquitur translates into "the matter speaks for itself." The doctrine only applies under the exceptional circumstances where a plaintiff can prove the following: (1) the defendant had exclusive control over the instrumentality producing the injury; (2) the plaintiff lacked control over the instrumentality and was unable to take action to avert the injury; and (3) the common experience of mankind or the testimony of expert witnesses indicates that such injuries would not have occurred in the absence of negligence. The following scenarios illustrate res ipsa loquitur circumstances: a patient contracted gonorrhea from the doctor's use of unsterilized instruments; 59 a physician left surgical instruments in the patient; 60 a doctor left a 12-inch spring in a patient's body; 6 a doctor improperly jointed broken bones so as to disfigure a patient's arm; 6 " a plaintiff emerging from abdominal surgery experienced a paralyzed arm; 3 a woman who had been in a body cast for 57. WASH. REV. CODE (1987). See Justice Dolliver's dissenting opinion in Herskovits for a discussion of this point. Herskovits, 99 Wash. 2d at , 664 P.2d at Miller v. Kennedy, 11 Wash. App. 272, 277, 522 P.2d 852, (1974), aff'd per curiam, 85 Wash. 2d 131, 530 P.2d 334 (1975). 59. See, e.g., Hellend v. Bridenstine, 55 Wash. 470, 104 P. 626 (1909). Although the court did not use the words res ipsa loquitur, the three requirements were present, and the court ruled that the circumstances created a reasonable inference of negligence. 55 Wash. at 476, 104 P. at 628. An inference of negligence is one of the procedural effects of res ipsa loquitur. See infra note 68. Olson v. Weitz recognized Hellend as a res ipsa loquitur case. 37 Wash. 2d 70, 72, 221 P.2d 537, 538 (1950). 60. See, e.g., Conrad v. Lakewood General Hosp., 67 Wash. 2d 934, 410 P.2d 785 (1966). The court does not use the words res ipsa loquitur though it stated that certain conduct constitutes negligence in and of itself. The court affirmed the trial court's decision to direct a verdict against the surgeon in charge of the operation. Indeed, finding the defendant negligent as a matter of law is one of the procedural effects of res ipsa loquitur. 61. See, e.g., Wharton v. Warner, 75 Wash. 470, 135 P.2 35 (1913). The court did not use the words res ipsa loquitur but the three requirements were present and the court ruled that the facts created the inference of negligence, which is one of the procedural effects of res ipsa loquitor. See infra note 68. Olson v. Weitz recognized Wharton v. Warner as a res ipsa case. 37 Wash. 2d 70, 72, 221 P.2d 537, 538 (1950). 62. Cornwell v. Sleicher, 119 Wash. 573, 205 P (1922). 63. Horner v. Northern Pacific Beneficial Association Hospitals, Inc., 62 Wash. 2d 351, 382 P.2d 518 (1963).

15 1987/88] MEDICAL MALPRACTICE spinal injury was burned on the small of the back;"' a patient under general anesthetic awoke a month after surgery with brain damage;" a patient placed under anesthetic by spinal injection for ulcer operation sustained extensive paralysis.1 6 Res ipsa loquitur can have a variety of procedural effects, depending on the circumstances."" One such effect is that where circumstantial evidence of negligence has been presented to the trial court, and the court is satisfied as a matter of law that the quantum of such evidence is sufficient, a jury may infer that negligence existed in a particular case without expert testimony. 8 Res ipsa loquitur also can shift the burden of producing evidence to the defendant, shift the burden of persuasion to the defendant or allow a court to find the defendant negligent as a matter of law. 9 Since the passage of ch RCW, the applicability of res ipsa loquitur to medical malpractice actions has been in question. Ch RCW applies to all malpractice actions arising after June 25, RCW and limit the theories under which a plaintiff may proceed against the health care provider and specifically delineate the necessary elements of proof which must 64. Leach v. Ellensburg Hosp. Ass'n, Inc., 65 Wash. 2d 925, 400 P.2d 611 (1965). 65. Pederson v. Dumouchel, 72 Wash. 2d 73, 431 P.2d 973 (1967). 66. Douglas v. Bussabarger, 73 Wash. 2d 476, 438 P.2d 829 (1968). In the following situations, there was not res ipsa loquitur and no malpractice in the absence of proof of negligent conduct of the physician: a doctor's surgical removal of growths on the plaintiff's vocal chords affected plaintiff's singing ability, Nelson v. Murphy, 42 Wash. 2d 737, 258 P.2d 472 (1953); the plaintiff lost eyesight in the right eye due to doctor's failure to operate, Hurspool v. Ralston, 84 Wash. 2d 6, 290 P.2d 981 (1955); an asphyxiation death of a teenager which occurred during treatment in a hospital for infectious mononucleosis, Swanson v. Brigham, 18 Wash. App. 647, 571 P.2d 217 (1977); the alleged improper positioning of a patient's arm in the course of surgery did not result in liability for an anesthesiologist, Dehaven v. Gant, 42 Wash. App. 666, 713 P.2d 150 (1986), rev. den., 105 Wash. 2d 1015 (1986). 67. Zukowsky v. Brown, 79 Wash. 2d 586, , 488 P.2d 269, (1979). These factors include the manner of the particular occurrence, the standard or degree of care defendant owes to plaintiff, the policy consideration based upon the relationship of the parties, relative access to explanatory information, or the like. 68. Washington has established the rule that expert medical testimony is necessary to establish the negligence of a physician unless the negligence is so apparent a layman would recognize it. See Harris v. Groth, 31 Wash. App. 876, 879, 645 P.2d 1104, 1107, aff'd 99 Wash. 2d 438, 663 P.2d 1132 (1982); Hurspool v. Ralston, 48 Wash. 2d 6, 290 P.2d 981 (1955); Derr v. Bonney, 38 Wash. 2d 678, 684, 231 P.2d 637, 640 (1951) (discussing Cornwell v. Sleicher, 119 Wash. 573, 205 P.2d 1059). This rule is an application of the doctrine of res ipsa loquitur. Olson v. Weitz, 37 Wash. 2d 70, 72, 221 P.2d 537, 538 (1950). 69. Zukowsky v. Brown, 79 Wash. 2d 586, , 488 P.2d 269, 278 (1984).

16 282 GONZAGA LAW REVIEW [Vol. 23:267 be established by the plaintiff. 0 RCW states that the plaintiff has the "burden of proving each fact essential to an award by a preponderance of the evidence." (emphasis added.) The statute also clearly excludes methods of recovery or methods of proof not set forth within it. This statutory burden of proof for a plaintiff precludes several of the possible procedural effects of the res ipsa loquitur doctrine. For instance, use of the doctrine to shift the burden of persuasion to the defendant is now prohibited. Accordingly, some defendants argue that res ipsa loquitur is now no longer applicable to medical malpractice cases in the State of Washington. However, nothing in the statutory language would prevent use of the doctrine as a matter of evidence to provide a permissive inference?' Permitting the jury to infer negligence is not tantamount to shifting any burden to the defendant.7 2 Hence, where the circumstances warranting application of the doctrine exist, the jury may, under ch RCW be permitted to infer a health care provider's negligence in the absence of medical testimony. IV. ETIOLOGY: COMMON CAUSES OF MALPRACTICE Given the legal principles discussed above, the practitioner and attorney can discern areas in which the risks of litigation are high. The examples included here are not intended to define the medical standard of care because the medical and legal formulations of the standard are continuously evolving and are incapable of being refined into specific rules. However, the examples do illustrate the use of the legal principles in malpractice cases. 70. WASH. REV. CODE (1987) limits actions against health care providers to the following theories: (1) Failure of the provider to follow the standard of care; (2) Breach of a promise that the injury suffered would not occur; and (3) Failure to obtain consent. WASH. REV. CODE sets forth the necessary elements of proof to establish a claim based upon failure to follow the standard of care. 71. Zukowsky, 79 Wash. 2d at , 488 P.2d at Id., citing PROSSER, TORTS, 40 at 232 (3d. ed. 1964).

17 1987/88] MEDICAL MALPRACTICE 283 A. Misdiagnosis by a Practitioner In order to prove a claim for malpractice in the making of a diagnosis, Washington law requires the plaintiff to show that: (1) the physician made an erroneous diagnosis; (2) the physician was negligent in making that diagnosis by reason of the lack of due diligence or care (a situation in which the physician made an erroneous diagnosis while following standard procedures in the profession or chose from among competing possible treatments would not constitute malpractice); and (3) the physician ordered an improper course of treatment (improper with respect to the actual malady) which was injurious to the patient. These specific requirements are simply a restatement of the above-discussed rules. Litigation involving erroneous diagnosis will be highly factresponsive; the plaintiff must clearly show that the physician failed to follow the usual medical procedure or exercise due diligence in making the diagnosis. The following cases illustrate Washington's application of this approach. One case in which the doctor was found liable for negligent misdiagnosis involved a patient injured on the job. The plaintiff's hip was obviously dislocated with a visible lump upon it, but the physician refused to examine the hip, instead concentrating on the plaintiff's broken leg. The court held the physician negligent for unskillful treatment for the dislocated hip. The physician had diagnosed a broken leg, but had failed to note the dislocated hip. 3 Hence, the physician had breached the standard of care. In a recent Washington Supreme Court case, the court found a physician negligent as a matter of law for failing to administer an EKG to a middle-aged male complaining of severe mid-chest pain upon presentation at the emergency room. The plaintiff subsequently died of a heart attack. The court stated that a physician may be negligent as a matter of law for failure to attempt to diagnose and treat a life-threatening disease. 74 This is another example of a court-imposed standard of care: regardless of customary practice, a physician must administer an EKG to a middle-aged patient complaining of severe chest pains upon emergency room 73. Richardson v. Carbon Hill Coal Co., 10 Wash. 648, 39 P. 95 (1895). 74. Keogan v. Holy Family Hosp., 95 Wash. 2d 306, 622 P.2d 1246 (1980) (per Horowitz, J., with two Justices concurring and five Justices concurring in part).

18 GONZAGA LAW REVIEW [Vol. 23:267 admission. In another case, the doctor was not liable when he failed to properly diagnose infantile paralysis. The doctor treated the symptoms as typhoid fever and the court found that a doctor of ordinary skill could have diagnosed the case as typhoid fever. Therefore, the physician adhered to the standard of care. The court also went on to say that because infantile paralysis was incurable, the failure to diagnose was not the proximate cause of the child's condition." Where the defendant physician diagnosed the plaintiff's pregnancy as cystic tumors and performed an operation for tumors, he did not necessarily commit malpractice because the jury could find that the misdiagnosis was not the result of negligence. 76 Had the original misdiagnosis been negligent, however, the unnecessary operation would probably have constituted an improper treatment which was injurious to the patient, establishing the damages element of a malpractice claim. In a case where a physician failed to diagnose and treat the presence of sulfur dioxide in the eye, the failure to diagnose would not afford a right of action unless the treatment which followed was improper. Because there was a difference in medical opinion as to the propriety of irrigating the eye with water for the presence of an unidentified chemical, the standard of care could not be established. Therefore, the court held that the physician's failure to irrigate did not constitute malpractice." A physician who diagnosed acute appendicitis, with the abscess behind, as bacteria colitis, did not commit malpractice because medical testimony failed to establish that the physician should have run further tests in making the diagnosis. Furthermore, neither the prescribed treatment for the bowel infection nor the 36-hour delay before the appendectomy contributed to the ruptured appendix; therefore, the proximate cause element could not be proved Brydges v. Cunningham, 69 Wash. 8, 124 P. 131 (1912). 76. Just v. Littlefield, 87 Wash. 299, 151 P. 780 (1915). 77. Peddicord v. Lieser, 5 Wash. 2d 190, 105 P.2d 5 (1940). 78. Skodje v. Hardy, 47 Wash. 2d 557, 288 P.2d 471 (1955).

19 1987/88] MEDICAL MALPRACTICE 285 Finally, in a case involving the diagnosis and treatment of the uterine problems (fibroid type of uterus and tight stenotic cervix) of a pregnant patient, the court found the physician was not negligent. Before attempting a hysterectomy, which medical testimony indicated was the proper treatment for a non-pregnant patient with the same problems, the physician employed a Gestest test and a lab test to determine whether the patient was pregnant. The lab test, in the endometrial biopsy, showed late secretory endometrium, which indicates non-pregnancy. After attempting the hysterectomy, the physician discovered the patient was indeed pregnant. In a suit for malpractice based on misdiagnosis and improper treatment, the jury found that the physician followed the recognized and accepted diagnostic and surgical procedures and the court upheld the verdict on appeal. 79 Therefore, no breach of the professional standard could be established. B. Injections/Transfusions Some of the common causes of malpractice suits with respect to injections are: infection as a result of unsterile equipment or improper cleansing of the skin; injection into part of the body which is inappropriate for injections or a particular drug; injections of an improper substance; and injections complicated by broken needles. 80 In one Washington case, a needle broke in the buttocks of a two-year-old child as a nurse administered an injection. The court recognized the issue of whether the nurse was negligent for failing to anticipate the sudden movement of the child and guard against it while administering the injection." 1 In Washington, transfusions are covered by statute. With respect to the contraction of hepatitis, malaria, and AIDS, practitioners who maintain proper records of donor suitability and identification, and who do. not pay donors for the blood, do not incur liability for the distribution, administration, or use of whole blood, plasma, blood products or blood derivatives for the purposes of injection or transfusion. Civil liability is present only in cases of will- 79. Hoglin v. Brown, 4 Wash. App. 366, 481 P.2d 458 (1971). 80. See 1 LOUISELL & WILLIAMS, MEDICAL MALPRACTICE, 4.04 (1987). 81. Barber v. Reinking, 68 Wash. 2d 139, 411 P.2d 861 (1966).

20 286 GONZAGA LAW REVIEW [Vol. 23:267 ful or negligent conduct. 82 The purpose of the statute is to protect the person who supplies or administers blood products from suits based on product liability and warranty theories under the Uniform Commercial Code. C. Drug/Chemical Problems The physician has a duty to consider a drug's potential dangers, and the susceptibilities of a patient, and then to make an informed decision as to the propriety of using the drug." 3 The problem areas in which medical malpractice suits tend to arise are hypersensitivity reaction, prescription error, incorrect drug choice, lack of informed consent, and accidental overdose." ' A physician has a duty to warn a patient of the dangerous side effects of a drug. Sufficient evidence supported a verdict for the plaintiff where the doctor failed to warn a patient, who was a bus driver, of the side effect of drowsiness. The patient fell asleep while driving a bus and caused injury to the plaintiff passenger. The physician was eventually held liable to the passenger. 85 In another case, the court found a pharmacist negligent, as a matter of law, for mistakenly dispensing the wrong drug. The plaintiff's physician had prescribed Atropine, which dilates the pupil, to treat the patient's iritis. The pharmacist provided the plaintiff with Isopto-Carpine, which constricts the pupils. The patient eventually developed acute glaucoma and lost part of her eyesight. 8 " A patient fell and broke her teeth following a penicillin injection. The defendant's expert witness testified that absent notice of fainting tendencies, the standard of care allowed the physician to discharge a patient after the injection. The court held that there 82. WASH. REV. CODE (1987). See Garvey v. St. Elizabeth Hosp., 103 Wash. 2d 756, 697 P.2d 248 (1985). Blood is not a product for purposes of Washington law on product liability, WASH. REV. CODE (3). See Reilly v. King County Central Blood Bank, Inc., 6 Wash. App. 172, 492 P.2d 246 (1971). 83. Dalke v. Upjohn Co., 555 F.2d 245 (9th Cir. 1977) (federal court interpreting Washington law). 84. See 1 LOUISELL & WILLIAMS, MEDICAL MALPRACTICE, 4.05 (1987). 85. Kaiser v. Suburban Transp. System, 65 Wash. 2d 461, 398 P.2d 14, opinion modified, 401 P.2d 350 (1965). 86. Harris v. Groth, 99 Wash. 2d 438, 663 P.2d 113 (1983).

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