Medical Negligence by Paul Whelan

Real Justice for Real People

MEDICAL NEGLIGENCE

Volume 3 | Issue 1 1 March 2013

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ABOUT THE COVER ART “Ancestors-2007”: This artwork was selected because of its compelling image of a mother with her child along with ancestral figures in the background.

The care that a child receives from her doctor/nurse should always value the mother’s love.

ABOUT THE ARTIST Jose Ramirez is an artist, teacher and the father of three girls, Tonantzin, Luna, and Sol. He received a BFA (1990) and an MFA (1993) in art from UC Berkeley. In 2001, he received the Brody Award/Getty Visual Arts Fellowship.

Jose has illustrated seven children’s books, including Quinito’s Neighborhood, Frog and Friends Save Humanity, Zapata para los Niños, Papito Dios, and Quinito Day and Night.

Among his commissions, he has worked for several nonprofit organizations, hospitals, cities, film and television companies and cultural centers across the country. In addition, he has lectured and exhibited his work in museums, universities, galleries and cultural centers in New York, Washington DC, San Francisco, San Diego, Texas, Japan, and Mexico.

For more info please visit ramirezart.com. You may contact him at joseram@aol.com or 323.377.4967.

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“Although I met Paul almost 20 years ago and co-counseled at least a dozen cases with him, I still regard Paul as my mentor and a source of inspiration. I have seen him pull down the biggest adversaries. Paul is a brilliant advocate on behalf of his clients, as well as a wonderful teacher. Readers of Paul’s medical negligence booklet will learn from Paul, as I have over the years.”

— Lawrence Baron “In the complex, and often misunderstood, field of medical negligence litigation it is absolutely essential to learn from those skilled legal practitioners who have worked in the trenches, know the field and have a heart for the people whose lives, and families, have been torn apart by unnecessary and preventable medical neglect. Paul Whelan is an outstanding trial lawyer who fully understands the field and has represented numerous victims of preventable medical neglect.

This booklet is an excellent survey of this area of law with specific examples taken from the many difficult cases Whelan and his partners have successfully handled.

— Jack Connelly “Paul Whelan is a brilliant trial lawyer with a wealth of knowledge and experience, obtained in the trenches, which is surpassed by no one. This concise booklet touches upon and succinctly summarizes every aspect of screening, investigating, handling and winning these difficult, expensive and usually tragic cases. A ‘must read’ for any trial lawyer operating in the field of healthcare negligence.”

— Ron Perey 4

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ABOUT STRITMATTER KESSLER WHELAN COLUCCIO Stritmatter Kessler Whelan Coluccio (SKWC) is a premier Pacific Northwest law firm devoted to representing plaintiffs in personal injury and wrongful death claims. Experienced in trial, SKWC attorneys welcome tough, complex cases. Our verdicts and settlements include product liability, nursing home, government liability, medical negligence, highway design, premise and construction site, class action, vehicle crashworthiness, major vehicle collision, maritime and aircraft crash cases.

The attorneys at SKWC are committed to making a difference in the lives of our clients, in helping to ensure justice for the injured, and in contributing to the legal community through leadership and education.

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ABOUT PAUL W. WHELAN

Throughout a legal career that has spanned four decades, Paul Whelan has been known for three things. First is his deep compassion for his clients – he takes the wrongs they have suffered very personally. Second is his vast well of knowledge of engineering and medicine that rivals many experts in the field. Third is his ability to explain both the emotion and the complexities of a case in a plain manner that juries and judges can easily understand.

Few attorneys have tried as many product cases as Paul. In the seventies, Paul tried multiple asbestos cases at the same time, literally running from courtroom to courtroom. In the

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eighties, he represented several children who were victims of lead poisoning, settling over forty-two cases after the very same company that had its hands in the Watergate scandal was caught hiding secret documents proving liability.

The scientist who established causation, developed data that led to the first ambient air lead standard in the U.S. In the nineties, Paul took on auto manufacturers, helping to improve the safety of seats, doors, airbags, and other components we take for granted.

Paul is a frequent speaker to legal and medical groups on product liability, toxic torts, structured settlements, occupational and environmental disease, patient rights, and physician responsibilities.

Paul was named Trial Lawyer of the Year by the Washington Chapter of the American Board of Trial Advocates in 2004.

He is a member of the American Board of Trial Advocates, the Washington State Bar Association, the Washington State Association for Justice, the American Association for Justice, the Federal Bar Association and Trial Lawyers for Public Justice. He is listed in Best Lawyers in America.

When not helping his clients find justice, Paul can be found at his children’s many sporting events, on his boat, or up in the mountains.

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ACTIONS FOR INJURIES RESULTING FROM MEDICAL NEGLIGENCE Introduction

The practice of medicine is an honorable profession.

Doctors save lives. But that doesn’t mean they should be put on a pedestal. They should be subject to the law like everyone else.

For over forty years, it has been my privilege and honor to represent people who have had the wrong organ removed, body parts mutilated, and clear diagnoses missed. I take pride in helping to hold health care providers responsible when they fail to meet the profession’s standards of care and injure or kill their patients.

Washington is unique in that it is one of the few remaining states where both its Supreme Court1 and its voters have rejected caps on damages in medical malpractice cases.2 Washington is also one of the few states that does not allow punitive damages.

I had the honor of representing Mr. and Mrs. Sofie in their asbestos case in the lower court. The Washington State Supreme Court overturned the damages cap in Sophie v.

Fibreboard, 112 Wn.2d 636, 171 P. 2d 711, 780 P. 2d 260 (1989).

2 In 2005, Initiative 330 (I-330) attempted to cap damages for victims of medical negligence, which would force them to give up their constitutional right to a jury trial.

The insurance and medical industries spent almost $10 million to sway voters.

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Note: Grey indicates states adopting caps from 1991–2004; black indicates states with no caps in place; and white indicates states with caps existing before observation period.

Despite the fear mongering of insurance companies, no correlation exists between capping damages and the alleged health care funding crisis.3 Overview

Medical malpractice issues are mostly covered by statute, RCW 7.70 et seq, (WPI 105.01 et seq). This statute spells out the elements of proof including what testimony is required to establish liability. Most cases include failure to properly diagnose and/or failure to properly treat. RCW 7.72.020 defines a health care provider to be virtually any licensed person or entity providing healthcare and related services, from acupuncturists to paramedics to surgeons. Entities include hospitals, clinics, HMOs, nursing homes and their employees, officers and agents. RCW 7.70.020(3). If a health See, e.g. Donohue, John, “The Impact of Damage Caps on Malpractice Claims: Randomization Inference with Difference-in-Differences”(2007). Faculty Scholarship Series. Paper 54. http://digitalcommons.law.yale.edu/fss_papers/54.

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care provider dies, their estate can be held responsible. RCW 4.20.050.

Some actual cases illustrate both failure to diagnose and failure to treat cases.

A failure to diagnose case that SKWC handled recently involved a woman who had a growth on her tongue. Because her doctor had delayed a diagnosis, she was required to have her tongue removed.4 What the doctor should have done was to send the growth to the lab for an evaluation. In another failure to diagnose case, a surgeon removed what was thought to be a cyst on a woman’s buttocks. The specimen was never sent to the pathology department for analysis. As it turned out, the growth was actually Merkel cell carcinoma (MCC)—a very aggressive and deadly cancer. Because MCC was not timely diagnosed, it spread to the lymph nodes in her right groin. It was found a half year later and was treated with radiation and surgery. Now, she faces a severely diminished life expectancy.5 An example of a failure to treat case involved a 10-month old baby girl. Kevin Coluccio, and I represented the parents. The 10-month old was hospitalized several times over a period of approximately four months. A day before her death, small bowel contents were dumped into her abdomen through a perforation adjacent to a duplication cyst. The cause of death was peritonitis. Her providers failed to follow up on an earlier radiology report, which had identified the then Other details of the case are confidential due to a settlement agreement with the defendants.

See Section VII for a more detailed discussion on loss of a chance of a better outcome.

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potential problem. The radiologist recommended a follow up evaluation that never happened.

In 2008, Paul Stritmatter and I represented parents who lost a baby due to the doctor’s failure to recognize a dangerous cord presentation. The patient complained to her OB/GYN about leaking fluid. But her concerns were brushed off. At 38 weeks pregnant, she persisted with her complaints. The doctor finally conducted an exam that revealed unusually low levels of amniotic fluid. There was no additional follow up. When she experienced contractions, she went to the hospital, where a Doppler exam could not identify whether the heartbeat was the mother’s or the baby’s. It turned out that the mother was sitting on the umbilical cord, as it was wrapped around the baby’s neck.

I. Scope of the Problem

According to Dr. Sidney M. Wolfe, hospital errors result in approximately 100,000 preventable deaths a year6. A surgeon somehow operates on the wrong body part 40 times a week7. In January 2012, Medicare reported that in spite of mandatory reporting, 86% of medical negligence cases go unreported. The adverse events that are reported are tallied in the Washington State Department of Health “Adverse Events Report.” The most recent report (2006 to 2011) quantified various adverse events: “A July Effect in Fatal Medication Errors: A Possible Effect of New Medical Residents,” Journal of General Internal Medicine, May 29 (www.ncbi.nlm.nih.gov/ pubmed/20512532).

7 Makary, Marty. “How to Stop Hospitals from Killing Us.” www.wsj.com. N.p., 21 2012.

Web. 6

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• Wrong procedure, wrong site or wrong patient • Wrong medicine • Retained foreign object

120 24 166

The author once had a case involving a surgeon who removed the wrong kidney, leaving the cancerous kidney to kill the patient. At his deposition, the doctor could not explain how he made the mistake.

Kevin Coluccio and I represented a skilled carpenter who was admitted to a hospital for shoulder surgery. His anesthesia was mishandled. The surgeon wanted the patient seated in a “beach chair” position—which meant that the patient’s brain was much higher than if he was in a supine position. The standard of practice required a calculation of how much additional oxygen was needed to compensate for the elevated brain. As a result of the incorrect dosage of anesthesia, the patient suffered serious debilitating brain injury. He never returned to work, and his wife divorced him.

Medication errors in hospitals are epidemic. The nonprofit watchdog group Public Citizen reports that each year children under five years old are injured as the result of 23,158 therapeutic medication errors.8 A few decades ago, live cell pertussis vaccine somehow passed FDA testing. The FDA later concluded that the batch was a “hot lot” that should never have been distributed. A safer acellular vaccine was patented by another pharmaceutical firm. The defendant bought and retired that patent. This left only dangerous live See Public Citizen, Worst Pills, Best Pills News, Vol. 18 No. 2, Feb. 2012.

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cell vaccines for use in America, when pertussis vaccinations were universally required by schools as a condition for attendance. In 1987, a boy in Western Washington was vaccinated by one of the live cell “hot lot” vaccines. The boy experienced seizures. The local emergency room doctor did not know how to deal with his seizures. He opted to give him a Nembutal (pentobarbital) suppository instead of antiseizure medication that was available. The child eventually died.

II. Statute of Limitations A. In general

In Washington State, cases against “health care providers” must be commenced within three (3) years of the act or omission alleged to have caused the injury, or within one (1) year of the date the patient discovered or should have discovered the injury and its cause. RCW 4.36.350. In cases where there is a continuing course of treatment, the statute of limitations begins to run upon the patient’s last visit to the health care provider, Olson v.

Severling, 52 Wn. App. 221, 758 P. 2d 991 (1998), rev. den.

111 Wn. 2d 1033 (1989).

B. Death and survival claims

Cases involving wrongful death based upon medical malpractice are governed by the statutes relating to wrongful death and survival claims, RCW 4.20.010 and 4.20.020.

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C. Statutes of Repose

Disability of the plaintiff tolls the statute of limitations, except that no case may be filed after eight (8) years from the date of the act or omission, RCW 4.16.190. This eight year provision is constitutionally suspect. See Unruh v.

Cacciotti, 172 Wn. 2d 98, 103-115, 257 P. 3d 631.

My client, Ms. Unruh, began orthodontic treatment when she was nine years of age. The treatment was done improperly and resulted in root resorption. As a result, her permanent teeth feel out and she required implants.

Ten years later, she learned from a dentist that the resorption was caused be improper braces. Under the statute of repose, her claim was too late. We challenged the statutes, and in July 2011, the Washington State Supreme Court rendered its opinion in favor of our client. Unruh held that older claims can survive if the case was filed within three years of majority, which can be extended for another 12 months, if a request for mediation is made.9 Ray Kahler, Garth Jones and I made up the team that represented Ms. Unruh.

D. Request for mediation

A good faith request for mediation extends the statute of limitations for one (1) year, RCW 7.70.110; Unruh supra.

E. Public Hospitals – 60 Day Tort Claim Notice

Public Hospital Districts are governmental agencies (municipal corporations) that ordinarily require a 60 day RCW 7.70.110.

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Notice of Claim to be served on their appointed agents.

RCW 4.96.020. The applicable period of limitations is tolled until the 60 days has expired. In other words, if the statute of limitations is about to expire when the notice is sent, the tolling ends on the 60th day. Great care is required in counting the days. Both RCW 4.42.100 and RCW 4.96.020 specifically state injuries from healthcare are “…governed solely by the procedures set forth in chapter 7.70 of the Revised Code of Washington.”

Confusion among medical malpractice litigants arose from RCW 7.70.100 which imposed a 60 day Notice of Intent to Sue to be served on defendant health care providers. The Supreme Court struck down the 60 day notice requirement on equal protection grounds as to nongovernmental health care providers. Waples v. Yi, 169 Wn. 2d 152, 234 P.3d 187 (2010). The defense bar, however, claimed the 60 day notice was still required as to a public hospital because the State Constitution gives the legislature authority to decide how suits can be brought against government agencies. McDevitt v.

Harborview ruled six to three that the 60-day notice requirement was constitutionally valid. A scathing dissent by Justice Tom Chambers accused the majority of creating law that the legislature never intended. 291 P.3d 876, 2012 WL 670041 (2012).

III. Corporate Negligence of Hospitals

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certain circumstances where health care employees or agents are involved, see WPI 105.02.03. Corporate negligence of hospitals applies where independent contractors have negligently been granted staff privileges. The concept arises because hospitals and patients are in what the court says is a “special relationship”.

Hospitals owe an independent, non-delegable duty of care directly to the patient, regardless of the details of the doctor – hospital relationship. Thus, a hospital has a duty to carefully review and evaluate the competency of the staff physicians, review the patient’s treatment and facilitate appropriate consultations. Pedroza v. Bryant, 101 Wn. 2d 226, 677 P. 2d 166 (1984). See also Pederson v. Domouchel, 72 Wn. 2d 73, 431 P. 2d 973 (1967); Osbourn v. Public Hospital Dis. #1, 80 Wn. 2d 201, 205 P. 2d 1025 (1972); WPI 105.02.02.

Some of the factors that persuaded the Court to adopt corporate negligence include: 1) The hospital’s role as a multifaceted health care center thought to coordinate community health.

2) The hospital’s role evolved away from simply providing physical facilities and medical equipment.

3) Hospitals are in a superior position to evaluate and control physician performances.

Standards for granting staff privileges are decided by hospital governing board committees.10 Hospitals seek accreditation A hospital is required by law to adopt bylaws regarding its medical staff. RCW 70.41.010-030. WAC 248-18-030.

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in accordance with the Joint Commission on Accreditation of Hospitals (JCAH).

The first medical negligence case that this author tried was with Leonard Schroeter and Judy Massong in 1985 in Hollingsworth v. Enumclaw Community Hospital. We represented the family of a young boy. At a small community hospital, the physician used high forceps. He did not have privileges to use such surgical instruments. The nurse who handed the forceps to the physician was fully aware that he did not have privileges to use them. It is below the standard of care for a hospital to allow an unqualified physician to utilize equipment that he has no business using. The infant suffered a spinal cord injury. The doctor settled separately.

The Court held the hospital to be liable for the negligence of its nurse.

Two things to keep in mind: 1) a hospital’s corporate negligence does not extend to acts or omissions which occurred outside the hospital in a private office setting.

Pedroza at 235; 2) the standards of practice are not based upon local standards but are state wide standards. Pedroza at 234.

IV. Apparent Agency

A hospital may be vicariously liable for wrongful acts of an employee on the basis of the normal rules of agency.

See Restatement Agency 3d. (2006). A hospital may also be liable for the acts of a non-employee physician based upon “ostensible” or “apparent agency”. See Adamski v. Tacoma

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General Hospital, 20 Wn. App 98, 579 P. 2d 970 (1978). Here, the basis for liability is said to be “affirmation representation” or “holding out” causing the patient to rely upon the skill and care of the apparent agent. See Restatement 2d Agency § 267. Seven factors to consider regarding a hospital’s apparent agency are listed in WPI 105.02.03 as follows: In determining whether the relationship between the hospital, physician, and patient was such that the physician was the apparent agent of the hospital, you may consider, among others, the following factors: 1. Whether the patient sought treatment primarily from the hospital or from the physician; 2. Whether it was the hospital that designated the physician to perform the services in question; 3. Whether the type of care provided was an integral part of the hospital’s operation; 4. Whether the hospital handled the billing for the services of the physician; 5. Whether the hospital’s drugs and supplies were utilized by the physician; 6. The nature and duration of any hospital-physician agreements; and 7. Whether the hospital made any representations to the patient, verbally or in writing, regarding their relationship with the physician.

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The above factors, no one of which is controlling, should be considered by you with any other evidence bearing on the question.

This is an important concept because hospitals hire so called “hospitalists” who are salaried hospital employees.

V. Medical Negligence Proof

The law regarding proof of medical negligence is spelled out in RCW 7.70.030. The plaintiff must prove there was a violation of the accepted standard of care, that the patient was promised the injury would never occur or that the injury resulted from healthcare to which the patient did not consent. See WPI 105.06.

A. Standard of Care

Except where a foreign object is unintentionally left in a patient’s body, expert testimony is required to establish the applicable standard of care, causation and, in most cases, the extent of the harm. Young v. Key Pharmaceutical, 112 Wn. 2d 216, 770 P. 2d 182 (1989); RCW 7.70.040; WPI 105.03. The phrase standard “of care” has replaced standard of “practice.” Harris v. Groth, 99 Wn. 2d 438, 663 P. 2d 113 (1983).

A specialist is held to the standard of care of a specialist, a family practice doctor is held to the standard of care of a family practice doctor, and so on. See WPI 105.01; WPI 105.02. The standard is “reasonable prudence” not “average care.” Harris v. Groth, Id. at 451.

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Evidence Rules 701-705 apply to expert testimony in medical negligence cases. In the past decade, the specialty boards that certify a physician as “Board Certified” have developed evidence based practice guidelines that are often referred to by expert witnesses.

These practice guidelines are available by a specialty search on the internet.

B. Quality Assurance Peer Review Committee Findings

The findings of and testimony given before a duly constituted peer review Quality Assurance Committee are not subject to litigation discovery. See Coburn v. Seda, 101 Wn. 2d 270, 677 P.2d 173 (1984); RCW 4.24.240-260.

Of course, the problem for patients is that the hospital can ask everyone who knows about the negligent event to participate in a committee review in an attempt to thwart discovery of otherwise discoverable evidence.

In Coburn, supra at 277, the Court said a peer review committee may not be used as a shield to obstruct discovery of information generated outside of review committee meetings and does not grant immunity to information otherwise available from outside sources.

Hence, a report from a “regularly constituted committee” is not discoverable, but whether there was such a committee and where it met is discoverable. Coburn, supra at 278. The names of committee members are not discoverable. Coburn, supra at 279.

In one of Justice Chamber’s last opinions, the Court held that an internal review of quality assurance committee

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records was required to answer an interrogatory about other similar instances of the particular adverse outcome suffered by the plaintiff. Lowry v. PeaceHealth, 174 Wn.2d 769, 280 P.3d 1078 (2012). The Court stated, “By its plain language, RCW 70.41.200(3) protects only information ‘created specifically for, and collected and maintained by a quality improvement committee.’ Id. at 779. Hence, only externals reviews, not internal reviews, are protected. Id. VI. Earwigging

Earwigs supposedly got their name because they were said to burrow into people’s ears to eat their brains. The term “earwigging” is an apt description of the practice that defendants such as HMOs and insurers routinely follow. It means to annoy or attempt to influence by private talk.

These organizations have developed the insidious practice of requiring their insureds to notify them if they are subpoenaed for a deposition or are otherwise asked to talk to the plaintiff’s lawyers. This is an obvious attempt to suppress relevant evidence. In the recent case of Smith v. Orthopedics International Limited, 170 Wn. 2d 659, 244 P.3d 939 (2010) the Court said that contact with a treating doctor through so called “friendly counsel” violated physician patient confidentiality.

The seminal case is Louden v. Overlake Hospital, 101 Wn. 2d 675, 756 P.2d 138 (1998), which held that the defense may not engage in ex-parte contact with plaintiffs health care

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providers. Smith is simply an extension of that principal to the context of litigation formal discovery. Supra.

Institutional health care providers (HMOs) routinely advise their employees when they are sued. This has a chilling effect on non-speaking agent employees and often they refuse exparte contact with the victim’s attorneys. Ex-parte contact with regular non- speaking agent employees is simply not forbidden, Tegland, 14 Washington Practice, (2d ed) Sect.

13.3 @ 532, but getting them to talk is another matter.

Finally, when an employee of a health care provider is deposed, the defense lawyer will sometimes appear and claim that he or she is also a lawyer for the deponent. The practice is clearly an attempt to obstruct discovery of relevant evidence. In such a situation when the lawyer has not formally appeared in advance on behalf of the deponent in advance, a call to the trial judge would be appropriate.

VII. Loss of a Chance of a Better Outcome

Herskovits v. Group Health, 99 Wn. 2d 609, 664 P.2d 474 (1983) involved an allegation of delayed diagnosis of lung cancer.

Mr. Herskovits went to Group Health with complaints of chest pain and coughing. A chest x-ray revealed infiltrate in the left lung. Chest pain and coughing persisted and Group Health prescribed cough syrup. The next year, a second opinion was sought outside of the Group Health network that led to a diagnosis of cancer. Mr. Herskovits died two years later.

Group Health argued the plaintiff needed to prove on a more probable than not basis that plaintiff would have survivied

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had the defendant not been negligent, i.e. that there was at least a 51 percent chance of survival. A plurality of the Court held that a 14% reduction in the decedent’s chance of survival (from 39% to 25%) provided sufficient evidence of causation to consider that the delayed diagnosis was a proximate cause of death.

Mohr v. Grantham, 172 Wn. 2d 844, 262 P.3d 490 (2011), involved a trauma induced stroke. Mrs. Mohr suffered a hypoglycemic event that caused her to run her car into a utility pole. The treating doctors neglected to analyze her neurological condition, sent her home with pain relievers and her injuries. Mrs. Mohr was left permanently brain damaged with a up to one-third of her brain tissue destroyed.

Two of Mrs. Mohr’s sons were doctors. They along with two other doctors testified that the treaters fell far below the standard of care. Plaintiff alleged negligent treatment reduced her chance of a better outcome. In extending the ruling in Herskovits, the Court ruled that loss of a chance at a better outcome is a compensable injury, even if the patient survives. Id. at 857.

VIII. Medical Screening Tests

There are dozens of medical screening tests for infants, children and adults. Examples include mammograms, colorectal stool samples, colonoscopies, fasting glucose, and electrocardiograms. Medicare pays for virtually all screening, including prostate screening. The American Urological Society encourages prostrate screening for men over 50.

Other groups encourage a discussion about screening.

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Various tests are repeated at recommended intervals. If a test is not performed and the patient is struck by the disease, can the health care provider by liable? Since metastasizing prostate cancer is always fatal, the Herkovits case should provide a remedy when screening is not offered.

Obviously to a HMO and health insurance provider this is a big issue. In 1991, a local HMO sought to reduce PSA screening, claiming that they saved $56 million in so doing.

However, the risk to the HMO is that treating the disease costs more than providing the tests. The whole purpose of screening is based on the assumption that early detection leads to better outcomes for the patient.

In May 2012, the U.S. Preventative Medicine Task Force recommended against prostate cancer screening. There was not even one urologist on the panel. There were no urologists and no cancer experts on the “task force”. This recommendation was challenged by nine leading urologists and prostate cancer experts in a publication, “What the U.S. Preventive Services Task Force Missed in Its Prostate Cancer Screening Recommendation.”11 The authors noted significant methodological flaws and a serious misinterpretation of the data. The authors expressed concern that Medicare and insurance companies would adversely affect: …the health and lives of men at high risk for life threatening disease. [And]… eliminating reimbursement William J. Catalona, MD, Anthony V. D’Amico, MD, William F. Fitzgibbons, MD, Omosfolasade Kosoko-Lasaki, MD, Stephen W. Leslie, MD, Henry T. Lynch, MD, Judd W. Moul, MD, Marc S. Rendell, MD, and Patrick, C. Walsh , MD. What the U.S. Preventive Services Task Force Missed in Its Prostate Cancer Screening Recommendation, Annals of Internal Medicine, May 22, 2012, at 137-8.

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for PSA testing would take us back to an. era where prostate cancer was often discovered at advanced uncurable stages.

In the November 2012 issue of New England Journal of Medicine, co-author Dr. H. Gilbert Welch recommended against routine mammograms. However, Dr. Daniel Kopans, a senior breast imager at Massachusetts General Hospital in Boston explains, “This is simply malicious nonsense. It is time to stop blaming mammography screening for overdiagnosis and over-treatment in an effort to deny women access to screening.”12 This assault on potentially lifesaving screening is gaining momentum. As usual, it is all about the money.

IX. Collateral Source Rule

Medical negligence cases have been singled out for odd rules relating to settlements with former defendants. Rules about collateral source evidence about compensation from other sources have gone through several changes. At common law no party could introduce evidence of prior compensation.

Mazon v. Krafchick, 158 Wn.2d 440, 452, 144 P.3d 1168 (2006).

Starting in 1983 settling defendants and other plaintiffs petitioned the court for approval of pretrial settlements in what was called a “reasonableness hearing”. RCW 4.22.060(2).

See Detroit Free Press, “Routine mammograms find tumors that don’t need treatment, study says,” Monte Morin, Nov. 23, 2012.

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This procedure provided protection for settling defendants; and post-verdict the court could reduce the verdict by the amount it deemed reasonable. In 1986, the legislature passed the so called “allocation of fault” statute when it abolished “joint and several” liability. Under the system the jury assigned a percentage of fault as to every entity that caused the plaintiffs damages. See e.g., Washburn v. Beatt, 120 Wn.2d 246, 840 P.2d 860 (1992). Under this rule it did not matter what amount of pretrial settlements were actually paid. The jury’s allocation was the final say. Id. at 296.

In 2006, as a part of the so called tort reform compromise, brokered by then Washington State Governor Chris Gregoire, the legislature adopted RCW 7.70. 080, titled “Evidence of compensation from other source”: The first sentence reads, “…any party may present evidence…that the plaintiff has already been compensated for the injury complained of from any source…” Who knows how many judges have erroneously reduced an award after hearing collateral source evidence.

In late 2012, Justice Charles Wiggins finally noticed that the last sentence of the statute contained a proviso: “Notwithstanding this section, evidence of compensation by a defendant health care provider may be offered only by that provider.” (Emphasis added.) Diaz v. State, 175 Wn.2d 457, 285 P.3d 1873 (2012). The trial court ruled that evidence of a prior settlement by a codefendant was admissible.13 In anticipation of such evidence, the plaintiff told the jury Diaz v. State, University of Washington Medical Center, Neal D. Futran, DMD., et al.

175 Wn.2d 457, 285 P.3d 873 (2012).

13

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about the prior settlement in his opening statement.14 Diaz held that the “proviso” controlled, that the trial court’s ruling was wrong, and that only a settling defendant could offer such evidence.15 This case ends years of confusion which was created by conflicting statutes and rules of evidence.

X. Intake

Screening is one of the most difficult and time consuming aspects of handling a health care negligence case. There are several layers of screening involved. For roughly every 100 people who request our services, we agree to procure medical records for only about 25 clients. We review the records, review the medicine and proceed further in about 15 of those remaining cases or less. We only proceed if the case is viable and supported by an expert opinion. In the end approximately 15 percent survive expert review. Personally, I could not do this without the work of Cheryl Baldwin, my long time paralegal.

My partners generally know the initial criteria. The patient must have either died or been incurably harmed in a catastrophic way. This might seem callous. But there is a financial reality involved in handling medical negligence cases. We have had many cases where it has cost hundreds of thousands of dollars in out of pocket costs to try the case.

In general, doctors are reluctant to testify against other doctors. Fortunately, as some of the more terrible cases Id. Id. at 457.

14 15

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have come to light, there are those who hope to that their testimony can help raise the standards of the profession while helping those harmed. These medical expert witnesses are extremely expensive. Sometimes the defense will hire up to ten or more experts and we have no choice but to meet them expert for expert.

Here are some of the items that you should consider when performing an intake: • Procure all medical records including past records for other conditions • Review and analyze the records • Consult PDR for all medications • Perform medical research • Do not rely solely upon patient’s recollections • Analyze the records for any indication of alteration • Forward all records, films, studies to expert(s) • Perform search on MQAC re the provider • Perform other background search re the provider • Consult with expert after review is completed.

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CONCLUSION

The public has been bombarded about misinformation about medical negligence cases driving up the costs of health care and driving good doctors out of business. These cases are complex and expensive. They require tremendous resources because the medical insurers and hospitals use every available means to fight them.

It is sad that we cannot help everyone who has suffered because of the negligence of a health care professional. But we cannot afford to take small medical malpractice cases, because the economics do not make it possible.

My hope is that the government holds steady and does not take away patients’ Seventh Amendment right to jury trial in medical negligence cases. The health care profession saves lives and is to be highly admired. But that doesn’t mean that it should be held above the law.

***

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SAMPLE COMPLAINT *Please see www.Stritmatter.com under “Resources for Attorneys” for sample discovery documents.

SUPERIOR COURT OF WASHINGTON FOR KING COUNTY AD and DD, individually and the marital community composed thereof, Plaintiffs,

NO. 1-11-11111 SEA COMPLAINT FOR DAMAGES

v.

KK, M.D. and JANE DOE K, individually and the marital community composed thereof; THE BLANK XX CENTER, LLC, a Washington limited liability corporation; and BLANK INTERNAL MEDICINE ASSOCIATES, a for-profit Washington corporation, Defendants.

COMES NOW Plaintiffs, AD and DD, by and through their attorneys, Paul W. Whelan of Stritmatter Kessler Whelan Coluccio for a cause of action against the Defendants allege as follows: I. PARTIES 1.1 Plaintiffs AD and DD are wife and husband residing in Bellevue, King County, Washington.

1.2 Defendant KK, M.D. is a Board-certified Gastroenterologist and Internal Medicine Physician. At all times material, he was employed by or an agent of Defendant Blank Blank Medicine Associates [herein “BBXX”]. He is a health care provider licensed in the State of Washington and provided medical services at all times material to AD at Defendant The Blank XX Center, LLC [herein “XX Center”]. Jane Doe K is the wife of KK, M.D. The acts and omissions of KK, M.D. alleged herein were done for and on behalf of the marital community of KK, M.D. and Jane Doe K.

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1.3 Defendant XX Center is a Washington limited liability corporation, doing business in King County, Washington as a licensed medical provider in the State of Washington, holding themselves out as providers of medical services. Plaintiffs are informed and believe Defendant XX Center is operated by Defendant BBXX. At all times material, Defendant XX Center acted by and through its employees, servants and agents, including, but not limited to Defendant KK, M.D. 1.4 Defendant BBXX is a Washington for-profit corporation, doing business in King County, Washington as a licensed medical provider in the State of Washington, holding themselves out as providers of medical services. Plaintiffs are informed and believe Defendant BBXX operates Defendant XX Center. At all times material, Defendant BBXX acted by and through its employees, servants and agents, including but not limited to Defendant KK, M.D. 1.5 There was at all times material hereto a physician/patient relationship between AD and Defendants.

II. JURISDICTION AND VENUE 2.1 Jurisdiction and venue are proper as all acts and omissions occurred in King County, Washington.

III. COMPLIANCE WITH LAWS PECULIAR TO HEALTH CARE LAWSUITS 3.1 Attached as Exhibit A is plaintiffs’ election to decline voluntary arbitration which complies with Washington State law.

3.2 This action was commenced within the applicable statutes of limitation.

IV. FACTS FORMING THE BASIS FOR LIABILITY 4.1 Plaintiff AD was referred to Defendant XX Center for a routine screening colonoscopy by her primary care physician. The colonoscopy was scheduled for April 17, 2012 at 11:00 a.m. with Defendant KK, M. D. at Defendant XX Center. AD presented to the center with her husband at the time specified. She was

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taken back and DD left with instructions to return to the center following the colonoscopy at approximately 12:00 noon.

4.2 DD returned to the center as instructed and inquired about AD. He was told by a center nurse that Dr. KK was running an hour late and would not commence AD’s procedure until approximately 12:30 p.m. At approximately 1:40 p.m., DD was escorted to the recovery room by a center nurse. AD complained to the center nurse of abdominal pain radiating into her shoulders. Following a brief visit from Defendant Dr. K, AD was discharged home despite her complaints of pain to Dr. K. 4.3 Over the ensuing days, ADcontinued to experience chronic abdominal and acute left upper quadrant pain. She placed phone calls to advise Dr. KK, one of which was not returned. On April 23, 2012, nearly a week after the colonoscopy, AD again phoned Defendants concerning her chronic pain. An appointment was made for the following day.

4.4 At approximately 6:00 p.m. on April 23, 2012, AD became critically ill prompting a phone call to 911. She was transported to Blank Hospital Medical Center Emergency Department and admitted emergently. Following CT confirmation of a laceration of the posterior spleen resulting in massive intraabdominal hemorrhaging, she was taken to the operating room for evacuation of the blood and a splenectomy. Total estimated blood loss was 2,500 ml, 1,500 ml of which was old blood and blood clots. Following a complicated post-operative course, she was discharged approximately two weeks later on May 7, 2012.

V. LIABILITY 5.1 Defendant KK, M.D. had the duty to exercise the degree of skill, care and learning expected of a reasonably prudent Gastroenterologist in the State of Washington acting under the same or similar circumstances at the time in question.

5.2 Defendant Dr. KK failed to exercise that degree of skill, care and learning expected of a reasonable and prudent Gastroenterologist and therefore was negligent. Dr. KK treatment and care of AD fell below the standard of care for a Gastroenterologist.

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5.3 Defendant XX Center was independently negligent and negligent by and through the acts and/or omissions of Defendant Dr. KK in his capacity as employee, agent, principal, partner, shareholder, corporate officer, director and/or member of Defendant XX Center. Defendant XX Center is legally responsible for the acts and omissions of Defendant Dr. KK as described above.

5.4 Defendant BBXX operates Defendant XX Center. Defendant BBXX is legally responsible for the acts and omissions of the personnel contracted to work in Defendant XX Center. Dr. KK was an apparent employee, agent, principal, partner, shareholder, corporate officer, director and/or member of Defendant BBXX. Defendant BBXX is legally responsible for the acts and omissions of Dr. Kang as described above.

5.5 XX Center owes an independent duty of care to its patients, as set forth in Pedroza v. Bryant, 101 Wn.2d 226, 677 P.2d 166 (1984) and WPI 105.02.02. This includes the duty to exercise reasonable care to monitor and review the competency of all health care providers who practice medicine at XX Center and to exercise reasonable care to adopt and implement policies and procedures for health care provided to its patients. XX Center held out to the public as being competent the Gastroenterologists who practice in the XX Center. XX Center has a duty to monitor the competence of these physicians. XX Center had a duty to exercise reasonable care to ensure that the policies and procedures it adopted for health care provided to its patients were properly executed. Defendant XX Center failed to exercise reasonable care in monitoring and reviewing the competency of health care providers who practice medicine at XX Center.

5.6 BBXX owes an independent duty of care to its patients, as set forth in Pedroza v. Bryant, 101 Wn.2d 226, 677 P.2d 166 (1984) and WPI 105.02.02. This includes the duty to exercise reasonable care to monitor and review the competency of all health care providers who practice medicine at XX Center and to exercise reasonable care to adopt and implement policies and procedures for health care provided to its patients. BBXX held out to the public as being competent the Gastroenterologists who practice in the XX Center. BBXX has a duty to monitor the competence of these physicians. BBXX had a duty to exercise reasonable care to

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ensure that the policies and procedures it adopted for health care provided to its patients were properly executed. Defendant BBXX failed to exercise reasonable care in monitoring and reviewing the competency of health care providers who practice medicine at XX Center.

5.7 As a direct and proximate result of the negligence of Defendants, AD nearly lost her life. The failure to recognize the possibility of a post-colonoscopy splenic injury and delay in its diagnosis allowed excessive amounts of blood to pool in her abdomen compromising her organs, in particular her spleen. The damage to her spleen was so extensive that it could not be salvaged.

The loss of her spleen has compromised her immune system and puts her at greater risk during her lifetime for infections, cardiovascular disease, adhesions and poor tissue healing.

Further, the invasive surgery has scarred her abdomen.

VI. DAMAGES 6.1 As a proximate result of the negligence of Defendant KK, M.D. described above, AD has in the past and will in the future sustain general damages including pain and suffering, loss of enjoyment of life, disability (both physical and emotional), disfigurement and other general damages, all in an amount to be proved at the time of trial.

6.2 As a proximate result of the negligence of Defendants XX Center and BBXX and its employees, servants and agents described above, AD has in the past and will in the future sustain general damages including pain and suffering, loss of enjoyment of life, disability (both physical and emotional), disfigurement and other general damages, all in an amount to be proved at the time of trial.

6.3 DD has and will sustain consortium losses in an amount to be proved at the time of trial.

6.4 As a proximate result of the negligence of Defendant KK, M.D., Plaintiffs have and will sustain special damages including but not limited to future wage loss and past and future medical and related expenses all in an amount to be proved at the time of trial.

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6.5 As a proximate result of the negligence of Defendants XX Center, and its employees, servants and agents described above, Plaintiffs have and will sustain special damages including but not limited to future wage loss and past and future medical and related expenses all in an amount to be proved at the time of trial.

VII. NOTICE 7.1 Pursuant to RCW 5.60.060(4)(b), Plaintiff AD elects to waive the patient-physician privilege. This waiver is effective 89 days after the filing date of this lawsuit.

7.2 Plaintiff AD waives the patient-physician privilege only to the extent necessary to allow defendants to proceed with formal discovery pursuant to Washington Superior Court Civil Rules unchallenged by objections based upon patient-physician privilege.

7.3 The Defendants are not to contact any treating physician, past, present, or subsequent, including treating healthcare persons either directly or indirectly, without first notifying counsel for the Plaintiffs so that Plaintiffs’ counsel might bring the matter to the attention of the Court and seek appropriate relief, including imposing limitations and restrictions upon any desire or intent by the defendant to contact past or subsequent treating physicians ex parte, pursuant to the rule announced in Loudon v. Mhyre, 110 Wash.2d, 675. 756 P.2d 138 (1988) and reaffirmed in Smith v. Orthopedics International Limited, 170 Wn.2d 659, 244 P.3d 939 (2010).

VIII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment of liability in favor of the Plaintiffs and against the Defendants herein as follows: A.

For past and future special damages in an amount to be proven at trial,

B.

For past and future general damages in an amount to be proven at trial,

C.

For prejudgment interest on all special damages herein,

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D.

For taxable costs and disbursements, and

E.

For such other and further relief as this court deems just and equitable.

DATED this _____ day of ________________________, 2012.

STRITMATTER KESSLER WHELAN COLUCCIO

_______________________________ PLAINTIFFS COUNSEL, # Counsel for Plaintiffs

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STRITMATTER KESSLER WHELAN COLUCCIO www.stritmatter.com Hoquiam Office 413 8th Street Hoquiam, WA 98550 Tel: (800) 540-7364 Fax: (360) 532-8032 Seattle Office 200 Second Avenue West Seattle, WA 98119 Tel: (206) 448-1777 Fax: (206) 728-2131

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STRITMATTER KESSLER WHELAN COLUCCIO www.stritmatter.com Hoquiam Office 413 8th Street Hoquiam, WA 98550 Tel: (800) 540-7364 Fax: (360) 532-8032 Seattle Office 200 Second Avenue West Seattle, WA 98119 Tel: (206) 448-1777 Fax: (206) 728-2131 Copyright 2013, Stritmatter Kessler Whelan Coluccio. All Rights Reserved.

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