Defendant Allowed to Allocate Fault to Medical Provider for Subsequent Malpractice

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We are a regional litigation defense firm with offices located in both Seattle, Washington and Portland, Oregon. We have spent the last 20+ years refining the art of litigation.

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November 3, 2020

Congratulations to Levi Bendele, Kelsey Shewbert and Robert Parker for successfully arguing that the jury should be allowed to allocate fault to a medical provider for subsequent malpractice of after treating the Plaintiff after a pedestrian vs. automobile collision.

Our client was the driver in the accident which resulted in Plaintiff fracturing her femur.  A few days later, after a successful surgery, Plaintiff’s femur was fractured in a new location by her treating providers at the hospital.  Plaintiff brought a lawsuit against Defendant driver and not the hospital, alleging that Defendant driver was liable for any subsequent medical negligence.  Defendant driver subsequently filed a third-party complaint against the hospital for contribution, indemnity and equitable subrogation.  The hospital prevailed on its motion to dismiss, arguing that joint and several liability was a pre-requisite to a contribution claim and that at this time in the case, there was no claim for indemnity or equitable subrogation.  Because Plaintiff chose not to sue the hospital, the hospital was not a defendant in which joint and several liability would apply.  Given this ruling, Defendant driver filed a motion to amend her answer to include the hospital as an empty chair.  Plaintiff also filed a motion for summary judgment seeking a ruling that Defendant driver may not be allocated fault to the hospital pursuant to RCW § 4.22.070.

In her motion, Plaintiff relied upon Lindquist v. Dengel, 92 Wn.2d 257 (1979) to support her argument that Defendant was automatically liable for the hospital’s subsequent medical malpractice.  Defendant argued that Lindquist was decided prior to Washington’s enactment of the Tort Reform Act and thus was not instructive.  Thirty-seven years later, in Sudre v. The Port of Seattle, No. C15-0928JLR, 2016 WL 7035062, at *15 (W.D. Wash. Dec. 2, 2016), the Western District of Washington was presented an issue of first impression of whether a defendant can allocate fault to a nonparty health care provider under RCW § 4.22.070.  Relying upon Idaho law, Judge Robart ruled that based upon the Idaho precedent and the unsettled nature of the application of Lindquist and comparative fault principles under Washington law, the defendant in Sudre was allowed to amend its complaint to add a nonparty health care provider as an empty chair pursuant to RCW § 4.22.070.

Based upon our arguments, Plaintiff’s motion for summary judgment was denied and Defendant was permitted to amend her Answer and allocate fault to the hospital.

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