Washington State Supreme Court Hears Medical Malpractice Appeal

Darla suffered from sleep apnea.  She underwent surgery involving cutting bone on the upper and lower jaws to advance them, thereby opening airway space to improve her breathing.


After surgery Darla suffered pain and green pus exuded from one of her surgical wounds. She went for a follow-up. She continued to experience pain and swelling and developed an infection in her jawbone over several months.


Her doctors prescribed antibiotics. Later they removed loose plates and screws left in place from the surgery, cleaned out infected parts of the jawbone, and wired Darla’s jaw shut.  Darla went to the emergency room three days later experiencing facial swelling.


Her doctor performed another surgery to clean the infected jawbone and install “more stout hardware” because her jaw had not yet formed healthy bone. At another follow-up visit she had loose bone and hardware that moved with finger manipulation. Her doctor performed yet another surgery, grafting bone and installing new hardware. Still experiencing problems, Darla went to another oral surgeon, who surgically removed old hardware and installed new hardware.


Darla sued the surgeons for medical malpractice. Darla’s expert reviewed her medical records and noted that the “surgeons performed multiple operations without really addressing the problem of non-union and infection within the standard of care.” Her medical expert also observed that “the surgeons were sending Ms. Keck to a general dentist as opposed to an oral surgeon or even a plastic surgeon or an Ear, Nose and Throat doctor.”


Darla’s expert concluded that the surgeons breached the standard of care. The expert also stated that these violations proximately caused Darla’s injuries within a reasonable degree of medical certainty.


The trial court ruled that Darla’s expert did not connect his opinions to specific facts to support the contention that the surgeons’ treatment fell below the standard of care. The court granted summary judgment for the surgeons and dismissed Darla’s case. This result was reversed by the Court of Appeals. The case was later heard by the Washington Supreme Court.


Generally a personal making a medical malpractice claim needs testimony from a medical expert to establish two required elements—the standard of care and causation. The Court ruled that the medical expert’s opinions speak to the standard of care and the surgeons’ breach of that standard, and causation.[1]


Darla’s victory was long in the making, and does not end the matter. The original surgery was performed in 2007. The medical malpractice case was filed in 2010. The Washington Supreme Court issued its ruling in September of 2015. And that is not the end.


The reversal sends the case back to the trial court where—unless the parties can settle out of court—Darla will present her case to a jury.


Most cases settle before trial. Most cases that are filed in court are not appealed, and most appeals do not reach our state’s highest court.  Nevertheless, it is prudent to prepare as if the case will be fully litigated—which indeed fosters the likelihood of settlement. The first step to prepare is to contact an attorney, preferably early.


By attorney Travis Scott Eller

[1] Keck v. Collins, ____ Wn.2d ____ (No. 90357-3 September 15, 2015).

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