OLYMPIA, Wash. (Legal Newline) – The
Washington Supreme Court is allowing medical defendants sued over the amputation of a patient's leg to argue the patient bears some of the blame, too.
In David Dunnington and Janet Wilson v. Virgina Mason Medical Center; Unknown John Does and John Doe
Medical Clinics, Dunnington brought a medical malpractice lawsuit against the defendants, alleging that they failed to detect a melanoma
that if caught early enough could have been prevented, but instead
required that his leg be partially amputated.
The defendants countered with a request
for a summary dismissal arguing that because Dunnington refused an
initial follow-up appointment from his doctor, they had grounds for
affirmative defense of contributory negligence. The trial court struck the
initial request from the defendants and denied their request for
reconsideration, but on Feb. 2, the state Supreme Court overturned it.
In its analysis, the
Washington Supreme Court also rejected Dunnington's request for a "loss of
chance" jury instruction, deciding instead that a "but for" causation
standard is the correct legal guidance in the case.
In the court's analysis, the plaintiff's
argument that the
defendant's negligence increased the chances of his melanoma
spreading lacked merit. And going into further detail, the court
pointed out that it was the existing cancer that led to the
recurrence and spread and not the defendant's negligence.
The court continued saying that if it
agreed with the plaintiff, it could set a precedent establishing that
both medical negligence and the underlying medical condition were
responsible for an equal amount of harm. For a loss of chance
verdict, there has to be evidence that despite the negligence the
injury was still likely to occur.
According to the court, this means
that the plaintiff's argument does not fall under the precedent
established by Daugert v. Pappas.
On the third component of the case of
whether the plaintiff was guilty of contributory negligence, the court
cited Rosendahl v. Lesourd Methodist Church as establishing a
precedent that the “the inquiry is whether or not he exercised that
reasonable care for his own safety which a reasonable man would have
used under the existing facts and circumstances, and, if not, was his
conduct a legally contributing cause of his injury.”
To answer this question, the court
pointed to evidence in the case establishing that there is room for
dispute in the matter of the defendant's contributory negligence,
such as the fact that it is not clear if his decision to forgo a
follow-up appointment directly contributed to the worsening of his