Can we sue the physician for wrongful death? 20 Answers as of February 17, 2012

I'm sorry to hear your mother died. Whether the physician did anything wrong is a difficult question to answer and this is one you will need to have someone review. You need to schedule an appointment with an attorney who can then obtain the medical records, have them reviewed by a qualified physician and then decide if a standard of care was breached. Not so easy as you can see.

A wrongful death lawsuit claims that the victim was killed as a result of negligence (or other type of unjust action) on the part of the person or entity being sued, and that the victims survivors are entitled to monetary damages as a result of the improper conduct. This could be one claim made by an individual with standing to bring the lawsuit on behalf of injured parties. Another possibility would be a medical malpractice lawsuit. These are just a few issues you may have to consider concerning a medical malpractice action. A medical malpractice action must be brought within three years of the act or omission alleged to have caused the injury or one year after the discovery of the alleged negligent act or omission, whichever period expires later. Wash. Rev. Code Ann. 4.16.350. In no event may a medical malpractice action be brought later than eight years after the date of the alleged act or omission. Id. The limitations period is tolled upon proof of fraud, intentional concealment, or the presence of a foreign object in the claimant. The foregoing statute of limitations was amended in 1988 to provide that the knowledge of a custodial parent or guardian is imputed to persons under the age of eighteen so that claims of minors are treated the same as those of adults. Id. However, this legislation did not repeal the existing tolling statute, which provided that a claimant's minority, mental incompetence, or imprisonment tolled the limitations period. Wash. Rev. Code Ann. 4.16.190 (West Supp. 1997). The Washington Supreme Court has reconciled this apparent conflict over how to treat minors in a way that substantially neutralized the 1988 amendment. It held that the statute is tolled until the minor reaches age eighteen, at which time the knowledge of the parent or guardian is imputed to him. Gilbert v. Sacred Heart Medical Center, 127 Wash. 2d 370, 900 P.2d 552 (1995). A disability will not toll the limitations period unless it existed at the time the cause of action accrued. Wash. Rev. Code Ann. 4.16.250 (West 1988). An action for wrongful death must be brought within three years after the decedent's death. Wash. Rev. Code Ann. 4.16.080(2) (West 1988). If you have further questions, please feel free to contact me at 509.327.3456 or at wwwBodeyLaw.com. This statute is applied in cases of medical malpractice resulting in death. Wills v. Kirkpatrick, 56 Wash. App. 757, 785 P.2d 834, cert. denied, 114 Wash.2d 1024, 792 P.2d 535 (1990); Bader v. State, 43 Wash. App. 223, 716 P.2d 925 (1986). Contributory or Comparative Negligence Washington has adopted pure doctrine of comparative negligence in tort cases, so that a claimant's award is diminished in proportion to the claimant's fault, but the claimant's fault, no matter how great, will not act as a complete bar to recovery. Wash. Rev. Code Ann. 4.22.005 (West 1988). Joint and Several Liability In cases where the claimant is partially at fault, each defendant is only liable for that proportion of the claimant's total damages equal to his share of fault. Wash. Rev. Code Ann. 4.22.070 (West Supp. 1997). However, joint tortfeasors are jointly and severally liable in cases where the claimant is not at fault to any degree, which is normal in medical malpractice cases, or where the defendants were acting in concert. Id. Contribution A right of contribution exists among two or more tortfeasors who are jointly and severally liable for the same injury or death. Wash. Rev. Code Ann. 4.22.040 (West 1988). An action for contribution may be enforced in the original action or by a separate action. Id. A separate action for contribution must be brought within one year from the date the judgment became final or, if no judgment was entered, the date payment was made. Wash. Rev. Code Ann. 4.22.050 (West 1988). A tortfeasor's liability in contribution is determined by his relative degree of fault. Wash. Rev. Code Ann. 4.22.040 (West 1988). These statutes taken together have been interpreted to mean that "one seeking contribution in the same action in which a claim is asserted against him must do so in a timely manner by pleading and proving his right to contribution before suffering a verdict to be entered against him on the principal claim." Robinson v. McReynolds, 55 Wash. App. 635, 640-41, 762 P.2d 1166, 1170 (1988). Vicarious Liability Washington recognizes the doctrine of ostensible agency as regards claims against hospitals and independent physicians. If a hospital acts or fails to act in some way which leads the patient to reasonably believe the physician is a hospital employee, the physician is deemed an ostensible agent of the hospital. Adamski v. Tacoma General Hospital, 20 Wash. App. 98, 579 P.2d 970 (1978). Expert Testimony In order to prevail in a medical malpractice case, a claimant must prove that the health care provider deviated from the standard of care and that this caused his damages. Wash. Rev. Code Ann. 4.24.290 (West Supp. 1997) and 7.70.40 (West 1992). Expert testimony is "often but not always required" to meet this standard. Van Hook v. Anderson, 64 Wash. App. 353, 360, 824 P.2d 509, 512 (1992). Exceptions include foreign object cases, id., and cases in which the practice of the defendant professional is such a gross deviation from ordinary care that a layman could easily recognize it. Breit v. St. Luke's Memorial Hospital, 49 Wash. App. 461, 743 P.2d 1254 (1987). Damage Caps The Supreme Court of Washington has held that the statutory cap on non-economic damages established by Wash. Rev. Code Ann. 4.56.250 (West 1988) is an unconstitutional infringement of the right to trial by jury. Sofie v. Fireboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989). Statutory Cap on Attorneys' Fees While there is no defined cap for attorneys' fees in Washington, either party charged with the payment of attorneys' fees in a tort action may petition the court within 45 days of receipt of the final billing for a determination of the reasonableness of that party's attorneys' fees. Wash. Rev. Code Ann. 4.24.005 (West 1988). Periodic Payments In personal injury actions in which the verdict or award of future economic damages is $100,000 or more, the court or arbitrator, at the request of either party, will provide for the periodic payment of future economic damages. Wash. Rev. Code Ann. 4.56.260 (West 1988). Upon the death of the claimant, the court may modify the unpaid portion of the future damages judgment. Id. Money damages for future medical expenses may be modified or terminated upon the claimant's death, but damages for lost future earnings may not be reduced or terminated. Id. Collateral Source Rule Washington has abrogated the common law collateral source rule by statute in medical malpractice cases. Wash. Rev. Code Ann. 7.70.080 (West 1992). A defendant may present evidence to the trier of fact that the claimant has already been compensated for the alleged injury from any source, except the claimant's personal assets, his representative's or family's assets, or insurance purchased with such assets. Id. If evidence of collateral source payments is admitted, the claimant may present evidence of an obligation to repay such compensation. Id. Insurance obtained through one's employment is considered insurance purchased with the assets of the employee. Id. Pre-Judgment Interest Pre-judgment interest on liquidated damages may be awarded in negligence cases. Walla Walla County Fire Protection District No. 5 v. Washington Auto Carriage, Inc., 50 Wash. App. 355, 745 P.2d 1332 (1987).

I'm not sure that a PA can take biopsies. I know that I would look into it more if I were you.

The PA needs to be under the supervision of the physician. Doubtful that he or she can be out of the room. Whether the pneumothorax was caused by the PAs negligence is the next issue, and the last issue is whether the cause of death is a direct result from the pneumothorax. It is rare that a collapsed lung particularly in a hospital setting, will be a cause of death. You need to have the records reviewed by an expert to ascertain whether your moms health care fell below the applicable standard of care that lead to her death. Sorry for your loss.

You need to have the case evaluated by the best medical malpractice lawyer in your jurisdiction. That would entail a review of whatever medical records there are both from the doctor and the hospital where she got treatment after her lung collapsed. Also, if an autopsy was done he would need to see that as well.

Whether the P.A. is allowed to do a biopsy is better answered by a doctor rather than a lawyer. To successfully sue for malpractice, you need three things: 1. Evidence that the doctor/nurse deviated from acceptable standards of due care, either by act or omission. This is also referred to as negligence. A bad outcome, in of itself, is not evidence of negligence. You need a doctor to testify that the doctor/nurse was negligent. 2. Evidence that the negligence caused some harm. For example, if the P.A. is not allowed to perform biopsies, this would be negligence. However, if the biopsy was performed correctly, it caused no damages. 3. Significant damages. If the negligence caused minor damages, it would not be economically feasible to bring a ,malpractice case, because the cost in expert witness fees would exceed your damages. I know some malpractice attorneys who require at least $500,000 in medical bills or lost wages caused by the negligence before they will consider the case. In your case, if negligence caused death, the damages are significant enough for someone to bring the case.

Collect your mother's medical records from any medical place she was treated and the reason for the surgery and contact a medical malpractice attorney.

Depends on the cause of death, whether or not your mother has a living douse and or the age of her children. Speak to a lawyer.

Medical malpractice cases in the great State of Washington are governed by statutes. RCW 7.70. (http://apps.leg.wa.gov/RCW/default.aspx?cite=7.70). The main question is usually whether the health care provider failed to follow the accepted standard of care in the field. RCW 7.70.030. There can also be causes of action for health care providers making promises they didn't fulfil, or acting without the informed consent of the patient. These cases are extremely difficult and require the testimony of an expert witness.

Yes. An Estate must be established. An expert will need the review the circumstances surrounding your mothers' death to determine whether there was a violation of the standard of care which caused or contributed to her death. Once all of this occurs, an attorney will be able to appropriately advise you regarding the claim.