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Posts Tagged ‘professional negligence’

Court Rules Medical Malpractice Case

Our firm was NOT involved in this case.

This week the Court of Appeals announced its decision in a medical malpractice case.

The plaintiff alleged she was suffered a systematic allergic reaction from a stent inserted in her coronary artery.  She brought suit against the doctor who inserted the stent. Read the rest of this entry »

Woman Injured by Drunk Driver Must Seek Compensation from Her Original Attorney

The Washington Supreme Court recently ruled that in a case of attorney malpractice the prejudgment interest should have been calculated on the total amount of the settlement lost, not the amount the injured party would have recovered after paying an attorney fee.[1] Read the rest of this entry »

Washington Supreme Court Strikes Down Medical Malpractice Law

By personal injury lawyer Scott Eller

A 2006 law required persons in Washington alleging injury from medical malpractice to file with the complaint a certificate of merit signed by an expert.  In a decision announced a few months ago the Washington Supreme Court declared the law unconstitutional holding that the statute unduly burdens the right of access to courts and violates the separation of powers. [1]

The Court held that requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to courts because it is through the discovery process that plaintiffs uncover the evidence necessary to pursue their claims. Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed.”[2]

The Court also held that the statute requiring a certificate of merit was in conflict with court rules, and therefore violated the separation of powers.

The Court noted that the established rule is that “[i]f a statute appears to conflict with a court rule, this court will first attempt to harmonize them and give effect to both, but if they cannot be harmonized, the court rule will prevail in procedural matters and the statute will prevail in substantive matters.[3]

The medical malpractice defendant argued that a medical malpractice claim is a special proceeding and therefore exempt from court rules.  Therefore the court rules in question did not apply and there is no conflict.

The Court disagreed that a medical malpractice claim is a special proceeding.  The Court noted that although special proceedings have not be precisely defined under Washington law, an appropriate rule given case law precedent “would include only those proceedings created or completely transformed by the legislature. This would include actions unknown to common law…Medical malpractice claims are fundamentally negligence claims, rooted in the common law tradition.”[4]

The Court ruled that the certification requirement directly conflicts with CR 11, which states that attorneys do not have to verify pleadings in medical malpractice actions, as well as CR 8 which details the Washington system of notice pleading.  The Court also noted that several other state supreme courts have invalidated certificate and affidavit requirements for medical malpractice litigation, holding that they conflict with court rules regarding the procedures for filing lawsuits and therefore violate the separation of powers.


[1] Putnam v. Wenatchee Valley Med. Ctr., P.S., 166 Wn.2d 974, 216 P.3d 374 (2009)(declaring RCW 7.70.150 unconstitutional).

[2] Id. at 377.

[3] Id. citing Fircrest v. Jensen, 158 Wash.2d at 394, 143 P.3d 776(2006).

[4] Id. at 378.

Injury Claim Dismissed as Time Barred

In a recent decision the Washington Court of Appeals upheld dismissal of a personal injury claim as time barred.[1] The plaintiff’s attorney named and served Elizabeth Loeliger rather than Elisabeth Loeliger. Read the rest of this entry »

New Trial Granted to Medical Malpractice Plaintiff After Juror Racial Comments

After a defense verdict in a medical malpractice case the plaintiff was granted a new trial based on racially based juror comments directed at the plaintiff’s attorney.  The defendant doctor appealed the granting of the new trial.  In a published opinion the Court of Appeals upheld the granting of a new trial.[1]

The case is based on the plaintiff’s allegations that the doctor violated the standard of care by failing to take an appropriate history and by failing to conduct an appropriate physical so that further testing or diagnostics might be performed to reveal that she had pneumonia instead of terminal cancer.  The untreated pneumonia progressed to sepsis resulting in Ms. Turner’s hospitalization for approximately 45 days, during most of which time she was in a coma.  The sepsis also resulted in the amputation of the plaintiff’s left forefoot.  Read the rest of this entry »

Personal Injury and Medical Malpractice Claims not Subject to the Consumer Protection Act

In a recent decision the Washington Supreme Court held that the Consumer Protection Act does not apply to medical malpractice claims.  Ambach v. French et. al., No. 81107-5, September 24, 2009.  Read the rest of this entry »

Breach of Warranty

A health care provider may be liable for breach of warranty if promised the patient or his representative that the injury suffered would not occur.[1] Read the rest of this entry »

Standard of Care

In Washington by statute medical malpractice claims must be brought under one of three theories.

  1. Failure to follow the accepted standard of care
  2. Breach of warranty
  3. Failure to Provide informed consent[1]

The standard of care has two elements: Read the rest of this entry »

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  • Washington Courts Rule on Landlord Liability for Dog Bite Injury
     Our law firm was not involved in the personal injury lawsuit described in this article. A recent Washington Court of Appeals decision considered arguments for landlord liability for dog bite injury.  The plaintiff was injured in a common areas by a dog owned by another tenant. The plaintiff claimed that the dog had attacked other […]
  • Court Dismisses Case for Improper Service of Summons and Complaint
    Our law firm was not involved in the personal injury lawsuit described in this article. In a recent decision the Washington Court of Appeals considered an issue of service of a summons and complaint. [1] Proper service of the summons and complaint is a prerequisite to the court obtaining jurisdiction over a party, and a […]
  • Medical Malpractice Statute Notice Requirements Declared Unconstitutional
    Our law firm was not involved in the personal injury lawsuit described in this article. Washington medical malpractice statutes had required an injury claimant to both obtain a certificate of merit from an expert before filing suit and to give 90 days notice to a health care provider before filing suit. Last year the Washington […]
  • Landowner Duty to Police in Washington
    Our law firm was not involved in the personal injury lawsuit described in this article. In a recent premises liability case Division One of the Washington Court of Appeals considered what duty, if any, a landowner owes to a police officer.[1] On the night of December 20, 2005, a King County Sheriff’s Department Deputy entered […]
  • Woman Claiming Injury Unsuccessfully Argues Appeal Without an Attorney
    Our law firm was not involved in the personal injury lawsuit described in this article. A woman who fell and was in injured appealed the trial court results. She unsuccessfully argued her appeal without the assistance of an attorney. She injured her ankle when she slipped on a substance on the floor in a Safeway […]
  • Person Who Fell on Wet Floor Sign Wins Appeal
    Our law firm was not involved in the personal injury lawsuit described in this article. A customer slipped and fell on a fallen wet floor sign. The trial court dismissed the case on Petsmart’s motion for summary judgment. The Washington Court of Appeals reversed. The customer several minutes browsing the dog toy aisle. He caught […]
  • Auto Accident Injury Victim’s Default Judgment Set Aside
    Our law firm was not involved in the personal injury lawsuit described in this article. A woman injured in a motor vehicle accident served the Washington Secretary of State because she was unable to locate the other driver to effect personal service.  The trial court entered a default judgment.  The court awarded $12,000 in general […]
  • Oil Slick from Truck Allegedly Causes Accident
    Our law firm was not involved in the personal injury lawsuit described in this article. The Washington Court of Appeals ruled on a case in which it was alleged that an oil slick from a truck on the interstate highway caused a vehicle to loose control and leave the highway, rolling over several times.[1] A […]
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