Teamwork as Malpractice: Washington Supreme Court fixes the Appeal Court’s Error

Grove v. Peacehealth St. Joseph Hosp., — P.3d — (Wash. 2014)

In this important case, the Washington Supreme Court decided an appeal against the dismissal of an aggrieved patient’s suit by a court below, Grove v. Peace Health St. Joseph Hospital, — P.3d — (Wash.App.Div. 1 2013). I criticized that dismissal (in a JNOV decision) in the October issue of this Journal. See here.

To recall: A team of doctors employed by the same hospital failed to properly monitor a patient after his heart surgery in order to rule out a well-known neurological complication. The patient subsequently developed an irreversible neurological disorder, and a suit ensued. The patient’s expert identified the team’s omission as malpractice. However, he was unable to attribute the omission to any specific member of the doctors’ team. Under the common law doctrine of vicarious liability, because the omission could be attributed to the team as a whole, the patient could still win his suit against the hospital. This doctrine holds that a hospital employing a team of doctors assumes vicarious liability for the team’s malpractice even when there is no way to single out the defaulting team member.

Washington’s appellate court, however, decided that this doctrine was inapplicable because medical malpractice is a statutory, rather than common law, tort under Washington law. Washington’s statute defines medical malpractice as a physician’s failure “to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same or similar circumstances.” The appellate court held that this provision requires an aggrieved patient to produce expert testimony that identifies an individual physician’s malpractice as a cause of her injury. In the case at bar, the court ruled, the patient “did not present evidence that but for any one of those particular individuals’ failure to adhere to the standard of care, he would not have been injured.”

The Washington Supreme Court reversed this ruling. It decided – rightly, in my opinion, that “the Court of Appeals view that [the statute] ‘does not contemplate liability for groups of providers’ appears to be overly restrictive. The statutory definition of ‘health care provider’ is nonexclusive, extending to an entity employing one or more individual health care providers.” Based on this interpretation, it vacated the JNOV decision and reinstated the jury verdict in favor of the patient.

This is a very good decision, in my opinion.

Furthermore, I believe that under Washington law, a patient injured by his doctors’ teamwork will do well to explore two alternative ways of suing the hospital:

A. Corporate negligence. The hospital might be directly liable for failing to establish a protocol with an appropriate checklist for doctors’ post-surgical monitoring of patients.

B. Spoliation. The hospital might be accountable for missing and non-compiled records documenting the work done by each individual member of the doctors’ team. Absence of the required records is a reason for shifting the burden of proof to the hospital. The hospital would then have to prove that none of its doctors acted negligently toward the patient.