A Washington plaintiff in a medical malpractice case doesn't need to jump through quite as many "hoops" these days, thanks to a 2009 court decision that struck down a somewhat burdensome procedural requirement for these kinds of lawsuits. But there is still plenty of complex ground to navigate. At the outset, it helps to understand the statutory requirements for proving medical malpractice in Washington—what you’ll need to establish in order to hold a health care provider liable for harm caused by sub-standard medical treatment. It's also important to get familiar with the role that an expert witness will likely play if you think you have a medical malpractice case in Washington. Read on for the details.

"Certificate of Merit" Ruled Unconstitutional in Washington

As part of tort reform efforts, in 2006 Washington passed a law requiring special procedural action by most injured patients who want to file a medical malpractice lawsuit against a health care provider in the state. Specifically, Revised Code of Washington section 7.70.150 said that the patient (or more accurately, his or her attorney) must file a sworn statement—called a "certificate of merit"—alongside the lawsuit. This statement must be written by a qualified medical expert, who declares under oath that he or she has reviewed the plaintiff's case and sees a "reasonable probability" that the defendant health care provider's conduct did not meet the "accepted standard of care" required under the circumstances—in other words, the expert is of the opinion that the lawsuit has "merit."

But in a 2009 decision (Putman v. Wenatchee Valley Medical Center, 216 P.3d 374 (Wash. 2009)), the Washington Supreme Court declared that the "certificate of merit" requirement is unconstitutional on two different grounds:

• it amounts to an undue burden on a medical malpractice plaintiff's right to conduct "discovery" in connection with his or her potential lawsuit, and
• it changes the procedure for filing pleadings in a lawsuit, and in that way jeopardizes the court's power to set court procedures.

So, Washington effectively has no "certificate of merit" requirement, although that could change depending on future action by the state's courts and lawmakers.

What a Medical Malpractice Plaintiff Must Prove in Washington

First, it’s important to note that not every unfavorable result or misstep in treatment will lead to a viable medical malpractice lawsuit—most won’t, in fact. (Learn more about the kinds of medical errors that often lead to a successful medical malpractice case.)

Washington lawmakers have passed a law that lays out what must be established in order to hold a health care provider liable for medical negligence. Revised Code of Washington section 7.70.040 says that, in order to prove that a patient's injury resulted from the "failure of the health care provider to follow the accepted standard of care," the plaintiff must show that:

• the health care provider failed to exercise the "degree of care, skill, and learning expected of a reasonably prudent health care provider" in the same profession in the state of Washington, under similar circumstances, and
• that failure was a legal cause of the patient's injury (the mistake resulted in "damages", in other words).

For medical malpractice lawsuits in Washington, as in every state, proving complex elements like the "standard of care" and deviation from that standard will almost always require the testimony of a qualified medical expert.

Expert Witnesses in Washington Medical Malpractice Cases

Perhaps the most relevant statute on expert witness testimony in an Washington medical malpractice lawsuit can be found at Washington Court Rule ER 702, which says that when scientific or other special knowledge will assist the trier of fact—i.e. the jury in a medical malpractice lawsuit, who is trying to determine whether a health care provider’s error amounted to negligence—a qualified expert witness may offer his or her opinion on key issues of liability and damages.

Most Washington medical malpractice lawsuits will involve the input and testimony of multiple medical experts -- retained by both the injured patient and the health care provider being sued. Because of this, a medical malpractice trial is offered referred to as a "battle of experts." But it's important to note that expert testimony might not be a requirement in Washington if the medical malpractice lawsuit hinges on "routine" treatment issues that are within the jury's common knowledge, or if the medical error was obvious (a surgical instrument was left inside the patient, for example).

The Washington Statute of Limitations for Medical Malpractice Lawsuits

If you're thinking about bringing a medical malpractice lawsuit to civil court in Washington, one of your first concerns is understanding and complying with the statute of limitations for these kinds of cases. This is a law that sets a strict time limit on an injured patient’s right to bring a legal action against a health care provider. Miss the filing deadline set by this law, and you've almost certainly lost your right to get compensation for your injuries and other losses. Get the details on the Washington medical malpractice statute of limitations.

Of course, if you have questions about filing a medical malpractice lawsuit in the state of Washington, an experienced attorney will have the answers. Learn how to choose the right medical malpractice lawyer for you and your case.