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 condition. 

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