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The WSMA advocates for physicians' interests in the court system by initiating lawsuits and by filing “friend of the court,” or amicus curiae, briefs that argue a physician-centric perspective.

The drafting of such briefs is resource intensive, and the WSMA generally retains outside counsel who specialize in writing these briefs. Because of the cost, the WSMA must be selective in allocating its resources to amicus briefs. Funding for these services comes primarily from the WSMA, though the WSMA often partners with other organizations such as the Washington State Hospital Association, Physicians Insurance and/or the American Medical Association to share the expenditure of resources and increase the impact of the amicus arguments.

Learn more about submitting a request for assistance and our selection criteria below, as well as a look at recent cases involving the WSMA.

Submitting a request for legal assistance

All requests should be submitted to the WSMA’s director of legal affairs, Denny Maher, JD, MD, at State your request for specific action, a summary of the issues presented by the case, a timetable for the requested action and any other information necessary to evaluate the request.

WSMA's legal staff will then assess the case and consider not only the legal merits of the requesting party’s position, but also the extent to which the case aligns with WSMA mission and objectives, and the potential for broader impact on health care for all Washington physicians.

Staff will then make a recommendation to the WSMA Executive Committee on whether or not to commission or join in an amicus brief, and whether the WSMA should seek additional participation and/or support from other organizations. Decisions made by the committee related to amicus briefs are summarized in reports to the WSMA Board of Trustees and in updates to the WSMA business plan.

Amicus curiae case selection criteria

When determining whether or not to provide assistance to a particular litigant, we consider:

  • The parties directly involved and the merits of their claims.
  • Whether the legal issues extend or clarify the case law on a matter relevant to Washington physicians generally.
  • The precedential value of the case (i.e., level of court, jurisdiction, and nature of legal proceeding).
  • Whether the legal argument is likely to succeed.
  • The expense the WSMA would incur.
  • The probability that other organizations will partner with the WSMA to share the expense.
  • The extent of non-financial costs (e.g., whether litigation makes political and other options less feasible, how it will affect our relationship with important individuals and groups).
  • The membership status of the requesting individual.
  • Whether other, non-litigious options are available.

Recent Cases

A look at instances in 2017 when the WSMA filed an amicus brief in lawsuits with real potential impact on health care in Washington state.

State Supreme Court agrees with WSMA brief in tort case involving jurisdiction

The WSMA is pleased to report that the Washington Supreme Court recently dismissed a medical malpractice claim that, if it had succeeded, could have endangered the ability of patients in our border communities to access care.

The case, Swank v. Valley Christian School, required the court to consider whether personal jurisdiction, a legal term referring to a court’s authority to hear a case, could allow an Idahoan plaintiff to sue an Idahoan defendant using a Washington law in a Washington court, if the alleged medical negligence occurred in Idaho but the plaintiff injuries occurred in Washington.

The facts of this case, like many medical malpractice cases, were tragic. The plaintiff, Drew Swank, was a 17-year-old high-school football player who was temporarily removed from play after suffering a concussion during a game. Washington recently enacted the Lystedt Law, which seeks to protect youths from athletic injuries by requiring certain clearances before student athletes resume playing. Drew’s physician in Idaho evaluated Drew, clearing him to play one week later. In a subsequent game, Swank was hit and collapsed, and later died in the hospital. His family sued the physician, the football coach and the school for which Swank had played.

The WSMA, joined by the American Medical Association, the Oregon Medical Association, the Idaho Medical Association and the Idaho Academy of Family Physicians, submitted an amicus brief arguing that a physician should not be sued in a state with which he has no contact. The WSMA was concerned that many physicians in Idaho or Oregon who see Washington patients close to borders could be dragged into court proceedings in Washington, despite never having practiced there. This could lead to fear of treating cross-border patients who might then have a harder time finding physicians close to these state borders to provide care.

In a 9-0 decision, the court ruled in favor of the physician. In its opinion, the court implicitly agreed with the position taken in our brief, dismissing the case for lack of personal jurisdiction. The court explained that the Lystedt Law does allow individuals adversely affected by youth sports-related head injuries to sue coaches and others if they believe those in charge did not comply with the law; however, the court notably refused to expand personal jurisdiction, addressing the issue in a very straightforward discussion at the end of its opinion. We were especially pleased to see the court affirm one of our points in its opinion: that (legally) a medical tort occurs where the care is rendered, not where a patient happens to be when the injury manifests.

In our brief’s conclusion, we noted that the Swank family had suffered a terrible loss, but that the physicians we represent strive every day to help patients like Drew and their families. We argued that accepting the argument the Swanks made here would have hurt, not helped, the effort to promote effective medical care in our state and across the nation, and we are pleased to see the court dismiss the malpractice claim against the physician.

We would like to thank our fellow amici, the American Medical Association, the Oregon Medical Association, the Idaho Medical Association and the Idaho Academy of Family Physicians, for their support in this important legal effort.

State Supreme Court agrees with WSMA in decision addressing medical malpractice testimony

The WSMA is celebrating a significant decision by the Washington State Supreme Court in a case addressing who may testify about a physician's standard of care in a medical negligence lawsuit.

In Frausto v. Yakima HMA LLC (Yakima Regional), a pediatric advanced registered nurse practitioner was hired as an expert witness to testify on behalf of the plaintiff, a man with quadriplegia who developed pressure sores while in a hospital. The ARNP testified that the pressure sores were caused by the nursing care and the care of the plaintiff’s physician. The physician was not named as a defendant, just the hospital and its employed nurses.

With this case, the primary question before the court was whether an ARNP could testify as to causation in a medical negligence lawsuit, something that previously had been the purview of only physicians. Another important concern was if the court might even go so far as to allow ARNPs to testify in a medical negligence case involving physicians.

In an amicus brief submitted to the court, the WSMA argued that an ARNP should only be allowed to testify as to causation in the area in which she/he has received specialized training. In its decision, the court agreed, maintaining its position that only physicians may testify about a physician's standard of care. The court held that ARNPs may testify on questions of causation and standard of care in a medical negligence lawsuit against a nurse only if the court determines the ARNP is qualified to testify as an expert under the rules of evidence. This must be done on a case-by-case basis.

The WSMA would like to extend its thanks and appreciation to our partners in this amicus curiae brief, the Litigation Center of the American Medical Association, the Washington Academy of Family Physicians and the Washington Chapter of the American College of Emergency Physicians.

WSMA victory in state Supreme Court medical malpractice case considering burden of proof

In a case that could have had profound consequences for physicians and other health care providers, the Washington Supreme Court handed down a most welcome 9-0 decision in Dunnington v. VMMC, protecting the established burden of proof in medical malpractice cases rather than lowering that burden, as a victory for the plaintiffs would have done.

At issue in the case was a legal question concerning the burden of proof of causation in medical malpractice cases when a plaintiff alleges loss of chance of a better outcome. While the defendant in the case was a podiatrist, a decision against the defendant would likely have changed how causation is litigated against all health care providers—lowering the burden of proof for loss of a chance of a better outcome and resulting in even more defensive medicine.

The court also considered whether, if the defendant physician relies on a "contributory negligence" legal defense, a jury should be allowed to hear evidence related to a patient's failure to follow his or her physician’s instructions. Fortunately, the court also agreed with our position on this issue by determining that evidence related to how a patient complied with a physician’s instructions (or in this case, failed to comply) could be presented to the jury when relevant to the defendant’s contributory negligence defense.

The WSMA filed an amicus brief in this case, joined by the Washington State Hospital Association, the Washington State Radiological Society, the Washington Chapter of the American College of Emergency Physicians, and was supported by Physicians Insurance A Mutual Company.

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