Washington Medical Malpractice 101: A Legal Expert Explains The Basics
UPDATED: January 6, 2020
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Medical malpractice in Washington State differs from that of other states. So, how is medical malpractice defined, how do you prove negligence, who pays for up front costs and how are med mal attorneys compensated? Our Washington legal expert explains the basics.
Washington Medical Malpractice Attorney Matt Menzer
Matt Menzer, a Washington medical malpractice lawyer who's been practicing law and representing plaintiffs for over 20 years in the areas of personal injury, medical malpractice, wrongful death and other areas, explained the basics of med mal in Washington State.
How is Washington medical malpractice defined?
In order to have a medical malpractice case in Washington State, according to Menzer, you have to be able to prove that the treatment - or lack of treatment - from the health care provider was below what;s referred to as the standard of care or the standard of practice. He explained:
What that translates to is whether the particular provider failed to act reasonably and with the same degree of skill, care and learning exercised by other members of that particular profession or specialty acting under similar circumstances. So, if you have a case against an orthopedic surgeon, the standard of care is the degree of skill, care and learning that other orthopedic surgeons reasonably exercise in the situation or under the circumstances at issue.
How do you prove your case?
Menzer says that in order to prove your case in Washington, except under certain limited circumstances where the type of negligence is obvious even to the lay person, you need expert testimony from physicians or sometimes nurses as to what the standard of care is in a particular case and whether or not that particular standard of care has been breached. He continued:
Generally speaking, you need experts from the same type of specialty or the same type of practice of the health care provider who committed the malpractice. There are some exceptions. You can have a certain type of doctor, such as an urologist or a vascular surgeon, who is performing a certain type of procedure that any surgeon with general training has performed and that general surgeon would be qualified to comment on the standard of care and whether or not there's been a breach by the urologist or vascular surgeon.
How are Washington med mal attorneys compensated?
Most attorneys are paid on a contingency fee basis in medical malpractice lawsuits. While Menzer says that a third (33%) is a customary percentage in an auto accident case or other simple types of personal injury cases, fees are going to range from 40, or maybe even as high as 45 percent in the medical malpractice field. He explained why:
The reason that the percentages increase is that these cases are very expensive, very time consuming and present a greater financial risk for lawyers. I think that the higher percentages reflect that increased risk. There's more on the line when you, as a lawyer, take on one of these cases in terms of having to dedicate your time and financial resources to the particular client.
Also in contrast to most auto accident cases or other type of simpler cases, medical malpractice cases very rarely settle before a lawsuit is filed. At least that's the case here in Washington. I think that insurance companies make it very difficult for an injured person to make any headway on resolving a malpractice case before a lawsuit is filed.
Who pays for up front costs?
More often than not, Menzer says that his firm will advance the cost of litigation. He told us that, "Sometimes I'll share the costs with a client who has the financial resources, but most of the people who come to me ask for assistance with those costs and I will advance them."
Medical malpractice lawyers understand what it takes to prove negligence on the part of doctors, dentists, nurses, pharmacists, chiropractors, EMTs, psychologists and many other medical professional and health care providers, including hospitals, HMOs, clinics and pharmacies. Most attorneys, as Menzer points out, work on a contingency fee basis, which means that there are no up front costs to clients.