Legal Activities

The WSMA advocates for physicians' interests in the court system. The WSMA does this 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.

Process for requesting WSMA assistance

All requests for legal assistance need to be submitted to the WSMA’s director of legal affairs, Denny Maher, JD, MD (denny@wsma.org). The inquiring individual(s) should state a 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.

The Legal Resource Center 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.

The Legal Resource Center 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 curiae 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

Keck v. Collins: Requirements for specificity in expert witness affadavits related to motion for summary judgment

On Dec. 30, 2014, the WSMA, with support from Physicians Insurance, submitted an amicus curiae brief in the case Keck v. Collins. This case involves a medical malpractice lawsuit against two oral surgeons. The primary issue of concern is that the state Supreme Court has chosen to answer whether an expert's affidavit that is submitted in a medical malpractice case to oppose a defendant's summary judgment motion must contain specific factual references, or if mere conclusions or speculation that the defendant's care is negligent would be sufficient. In other words, defendants in medical malpractice cases frequently will move for summary judgment in an effort to resolve a case quickly in their favor.

Current law (case law) holds that such an affidavit opposing a summary judgment motion must include specific facts and reasoning to support opposition to summary judgment; unfounded conclusions and speculation are not permitted. In this case, the Court of Appeals chose not to overturn existing precedent (that require specificity). However, the Supreme Court has decided it wants to answer that question itself. There is also a lesser issue of concern related to when a court can accept late filing of such affidavits.

Because the court made a conscious decision to address the issue of specificity in expert affidavits, the WSMA is concerned that the court may overturn the requirement for specificity.

Oral arguments will be heard in early 2015. Contact Denny Maher, JD, MD, at denny@wsma.org or Tierney Edwards, JD, at tee@wsma.org for more information.

WSMA submits amicus brief in case examining Washington's medical negligence statutes

The WSMA and the Washington State Hospital Association jointly filed an amicus brief in Grove v. PeaceHealth St. Joseph Hospital, a case looking at proving medical negligence in “team based” approaches to patient care. The WSMA urged the court to uphold the Court of Appeals decision which interpreted Washington law as requiring plaintiffs initiating a malpractice suit to prove that an individual physician acted negligently, even when the plaintiff received treatment from a group of doctors working as a team.

In this case, the plaintiff developed a lower extremity compartment syndrome, and subsequent disability, following aortic valve and root replacement. The defendant hospital used a “team” approach to patient care. Members of the team were employed by the hospital. The attending surgeon left town a few days after the surgery. Two associates provided care during the time at which the compartment syndrome was identified and treated, with resulting disability.

Though a Superior Court jury found for the plaintiff, and awarded $583,000 in damages, the judge overturned the jury verdict because the plaintiff hadn’t proved an individual physician had acted negligently, as required by Washington’s medical malpractice statute. The Court of Appeals upheld that decision.

Despite a well argued brief, on December 11, 2014, the Supreme Court unanimously ruled to reinstate the original jury verdict in favor of the plaintiff. The written opinion supports the interpretation of state law that puts responsibility of care outcomes solely on the attending physician, as the “Captain of the Ship,” even when a team of doctors all worked together on the patient’s treatment. Notably, in overturning the appellate court’s decision, the Supreme Court’s analysis in this particular case turned on a finding that trial evidence had established that “the surgeons in charge of the patient’s postoperative recovery failed to meet their standard of care, which required appropriately monitoring the patient for compartment syndrome… and also failed to direct members of the hospital’s care team.” Thus, the law still requires a plaintiff to establish a “link of a specific breach of the standard of care to an individual provider,” somewhat allaying WSMA concerns that the Court’s decision could open entire practices to claims lacking such a link.

Supreme Court agrees with WSMA's position and rules psychiatric boarding illegal

In a unanimous opinion delivered on Aug. 7, 2014, the Washington Supreme Court declared the practice of psychiatric boarding illegal. The WSMA, along with seven other organizations representing health care professionals, co-signed an amicus brief in the case and we are pleased to see the court agree with our position.

This case arose out of the practice of “psychiatric boarding,” which occurs when a mental health patient is detained in a hospital emergency room until space in an appropriate treatment facility opens up. Because the state has drastically reduced funding for mental health services over the last decade,  appropriate treatment facilities do not have room to accept new patients. Instead, hospital emergency rooms, which are not properly trained or equipped to provide mental health services, have found themselves forced to keep mental health patients for extended periods of time.

Although the court's new ruling invalidates the practice of psychiatric boarding, it isn't clear what alternatives are immediately available to hospitals and providers. Though court initially granted a 120-day stay in order to give the state time to prepare; the mandate went into effect on December 26, 2014. The WSMA and other health care organizations are in close communication with state agencies. We will keep you updated as the issue develops.

Fergen v. Sestero: Washington state Supreme Court agrees with WSMA in case regarding jury instructions on the exercise of medical judgment

On March 12, 2015, the Washington Supreme Court decided Fergen v. Sestero, an important case in which the WSMA had filed an amicus brief arguing for physicians' ability to exercise medical judgment. The WSMA was pleased to see the Court agree with our position in the case, going so far as to rely on the language in our amicus brief when delivering its opinion.

This case, consolidated with Appukuttan v. Overlake, addressed the “exercise of judgment” jury instruction in medical malpractice cases. In this particular jury instruction, the judge tells the jury that a physician is not liable for selecting one of two (or more) alternative diagnoses or treatments if, in arriving at that decision, the physician exercised reasonable care and skill within the standard of care. Both cases were decided in favor of the defendants at Superior Court. The WSMA, with the Washington State Hospital Association and support from Physician’s Insurance, submitted a brief explaining why a physician who has made a reasonable decision within the standard of care should not be found at fault, even if that reasonable decision ultimately turns out to be incorrect. An incorrect choice of diagnosis or treatment is not necessarily a result of negligence. The law should appreciate that medicine is an art, not a science, and failing to recognize this would be harmful for physicians.

This victory is another example of how the WSMA is working to advocate for you in the court system.

Anaya Gomez v. Sauerwein: Supreme Court sides with the WSMA in informed consent case

In October 2013, the WSMA and the Washington State Hospital Association filed a compelling amicus curiae brief in the case Anaya v. Sauerwein. The Washington State Court of Appeals had previously held that when a physician allegedly misdiagnoses a patient's condition, the patient is only permitted to bring an action for medical negligence, not for failure to obtain informed consent. The WSMA’s amicus brief argued against allowing a separate cause of action (claim) based on lack of informed consent in a medical negligence action.

The Supreme Court agreed with our position in determining that under state law, when a health care provider rules out a particular diagnosis based on tests, medical history, and other relevant information, the provider is not liable for informed consent claims, even if the provider’s diagnosis turns out to be incorrect. The court’s opinion relied in part on arguments raised in the WSMA’s amicus brief.

The case had the potential to affect the manner in which medical malpractice claims are brought against physicians, other healthcare providers, hospitals, and other healthcare facilities. Had the court ruled the other way, physicians could have been required to discuss every abnormal laboratory test or result with every patient, and fully discuss the pros and cons of all relevant treatment options related to those abnormalities or risk a claim for failure to provide informed consent. This outcome would have been time consuming, resource intensive, confusing for patients, costly, and would’ve failed to improve patient care. The WSMA is pleased to see the court decided against this, relying in part on the persuasive arguments in our amicus brief.

Neighborcare v. Teeter: Amicus curiae brief regarding access to federal courts in legal challenges to the state Medicaid program

This case challenged a ruling that Washington’s Medicaid Core Provider Agreement limits venue to state court in Thurston County, thus prohibiting the Federally Qualified Health Centers from challenging the CPA in federal court. Put more simply, all challenges to the Medicaid CPA can only be brought in state court—not federal court—and this case sought to change that. The case settled out of court, before the court could hear arguments and render its decision, so the law remains unchanged.

Physicians and hospitals have an interest in this case because the FQHC and all other providers sign the same CPA. The WSMA and other groups have brought a number of lawsuits against the State of Washington for violations of federal law in the past, and we will undoubtedly need to do so again in the future. Cases involving issues related to federal law are often best litigated in federal court, partly because federal courts are most experienced in interpreting federal law. As Medicaid becomes a greater share of providers’ revenue, the likelihood of litigation by physicians and hospitals against the state for violations of federal law will likely increase. Requiring all challenges to the CPA to be brought in state court not only places the cases in the hands of courts less experienced in dealing with interpretation of federal law, it also potentially creates a bias in favor of the state agency.

In April 2013, the WSHA submitted an amicus brief in association with WSMA legal staff in support of the plaintiff-appellants (the FQHC). This case is still before the Ninth Circuit. A date for oral arguments has not been set, and a decision is not expected for several months following that.

WSMA lawsuit seeking writ of mandamus to compel coverage by health plans for emergency medical services provided by non-participating physicians

In December 2010, the WSMA submitted a petition seeking a writ of mandamus to compel Insurance Commissioner Kreidler to require insurance plans to pay the billed charges for emergency medical services performed by non-participating providers. The WSMA believes the law requires this in order to protect patients from balance billing. The Supreme Court declined to hear the petition, but chose to transfer the case to Thurston County Superior Court. The court ruled against the WSMA on summary judgment. The WSMA then sought direct appeal of its petition for declaratory judgment and a writ of mandamus at the Supreme Court. Despite making compelling arguments for the Supreme Court to accept the case for direct review, on April 25, 2012 the court declined to take up the case at this time, and transferred it to Division II of the Court of Appeals.

We were disappointed that the Supreme Court declined to take the case. However, we believe that our legal arguments are sound. We hope to convince the court that the law does not allow the Insurance Commissioner to permit insurance companies to limit their payments for emergency services provided by non-participating physicians to their in-network rate.

Palomar Medical Center v. Sebelius

In this case, the Ninth Circuit Court of Appeals held that when a Medicare Recovery Audit Contractor makes a decision to reopen an old claim, the decision is final and unappealable, and thus, the issue of good cause for opening the old claim cannot be raised after the audit’s conclusion. The WSMA joined the American Medical Association (AMA) and the medical associations from all other states in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, and Oregon) in an amicus curiae brief in an unsuccessful effort in support of Palomar Medical Center.

Braswell v. Shoreline Fire Department

The WSMA joined the University of Washington, the City of Seattle, and the WSHA in an amicus curiae brief submitted in a case related to the rights associated with a paramedic certificate and the associated rights of the physician supervising the paramedic.

The case involved the question whether a paramedic certification was a property or liberty interest, and whether removal from a paramedic position tortuously interfered with the plaintiff’s employment relationship. The federal District Court ruled for the defendants.

The brief urged the Court of Appeals to affirm the lower court’s opinion, and argued that the public’s interest in a strong emergency medical services system would be undercut if a Medical Director is unable to make a determination regarding the qualifications, competence, and suitability of paramedics under his or her supervision.

The Court of Appeals upheld the District Court decision , but remanded the case back to District Court to determine if the plaintiff had suffered a deprivation of his liberty interest.

Unruh v. Cacchiotti

The WSMA filed an amicus brief in this case, in which considered Washington’s 2006 statute of limitations and statute of repose. The Washington Supreme Court, reversing the trial court’s decision, held that neither statute would bar claims similar to the plaintiff’s. The measures WSMA’s brief sought to protect remain intact, but there is some concern that the court may erode these measures if given the chance in a case that more directly challenges these measures.

Waples v. Yi

In a 6-3 decision released on July 1, 2010 in Waples v. Yi, the Washington State Supreme Court dealt yet another blow to medical malpractice tort reform by striking down the notice requirement of RCW 7.70.100(1). This requirement, which was included in the bipartisan medical malpractice reforms enacted in 2006, and which was strongly supported by the WSMA, required a plaintiff to provide at least ninety days’ notice of the intention to commence a medical malpractice suit. Read the amicus curiae brief in the Waples v. Yi case.

Columbia Physical Therapy, Inc. P.S. v. Benton Franklin Orthopedic Associates, P.L.L.C.

In a unanimous decision released on March 18, 2010, the Washington State Supreme Court ruled in favor of Benton Franklin Orthopedic Associates (BFOA) in the case challenging whether physical therapists could be employed by medical practices in Washington.

Ambach v. French

Washington Supreme Court Reverses Court of Appeals in Ambach v. French .

Putnam v. Wenatchee Valley Medical Center

Washington Supreme Court declares medical malpractice certificate of merit statute unconstitutional in Putnam v. Wenatchee Valley Medical Center [PDF]. Read the amicus curiae brief in the Putnam v. Wenatchee Valley Medical Center case.

WSMA v. Regence

A WSMA initiated lawsuit in response to a program implemented by Regence that scored physicians' performance based on quality and efficiency criteria. WSMA Regence Settlement cited in Robert Wood Johnson Foundation funded analysis of legal issues raised by health plan "High Performance" quality and efficiency rating programs.

Blue Cross Blue Shield Settlement

A national class action lawsuit in which the WSMA was a signatory that alleged Blue Cross Blue Shield plans (Regence and Premera) had defrauded physicians out of payment for services provided.

Wright v. Jeckle

This is a Washington State Supreme Court ruling that held physicians can make a profit on the sale of goods to patients. The WSMA filed an amicus brief in this case.

Tacoma Orthopedic v. Regence

A Washington State Supreme Court ruling the held health plan contracts must not require arbitration to the exclusion of judicial remedies. The WSMA filed an amicus brief in this case.

Gonzales v. Oregon

A United States Supreme Court ruling the upheld Oregon's physician assisted suicide law. The WSMA was a signatory to an amicus brief filed in this case.

Swedish v. Riccardo

This was a case over disclosure of confidential peer review information. The WSMA filed an amicus brief in this case.

Peacehealth v. Turner

Local hospital sues physician board member for breach of fiduciary duty when he decides to open a competing ASC. The WSMA provided financial support in this case.

WSMA lawsuit seeking writ of mandamus to compel coverage by health plans for emergency medical services provided by non-participating physicians

In December 2010, the WSMA submitted a petition seeking a writ of mandamus to compel Insurance Commissioner Kreidler to require insurance plans to pay the billed charges for emergency medical services performed by non-participating providers. The WSMA believes the law requires this in order to protect patients from balance billing. The Supreme Court declined to hear the petition, but chose to transfer the case to Thurston County Superior Court. The court ruled against the WSMA on summary judgment. The WSMA then sought direct appeal of its petition for declaratory judgment and a writ of mandamus at the Supreme Court. Despite making compelling arguments for the Supreme Court to accept the case for direct review, on April 25, 2012 the Supreme Court declined to take up the case at this time, and transferred it to Division II of the Court of Appeals.

We were disappointed that the Supreme Court declined to take the case. However, we believe that our legal arguments are sound. We hope to convince the court that the law does not allow the Insurance Commissioner to permit insurance companies to limit their payments for emergency services provided by non-participating physicians to their in-network rate.