Defense Wins! - Fall 2020
Tuesday, November 10, 2020
Section: Fall 2020

Defendant Allowed to Allocate Fault to Medical Provider for Subsequent Malpractice

Defense attorneys: Levi Bendele, Kelsey Shewbert and Robert Parker of Holt Woods & Scisciani LLP
County: Island

Defendant driver was in an automobile vs. pedestrian accident which resulted in Plaintiff fracturing her femur.  A few days later, after a successful surgery, Plaintiff’s femur was fractured in a new location by her treating providers at the hospital.  Plaintiff brought a lawsuit against Defendant driver and not the hospital, alleging that Defendant driver was liable for any subsequent medical negligence.  Defendant driver subsequently filed a third-party complaint against the hospital for contribution, indemnity and equitable subrogation.  The hospital prevailed on its motion to dismiss, arguing that joint and several liability is a pre-requisite to a contribution claim.  Because Plaintiff chose not to sue the hospital, the hospital was not a defendant in which joint and several liability would apply.  Given this ruling, Defendant driver filed a motion to amend her answer to include the hospital as an empty chair.  Plaintiff also filed a motion for summary judgment seeking a ruling that Defendant driver may not be allocated fault to the hospital pursuant to RCW § 4.22.070. 
In her motion, Plaintiff relied upon Lindquist v. Dengel, 92 Wn.2d 257 (1979) to support her argument that Defendant was automatically liable for the hospital’s subsequent medical malpractice.  Defendant argued that Lindquist was decided prior to Washington’s enactment of the Tort Reform Act and thus was not instructive.  Thirty-seven years later, in Sudre v. The Port of Seattle, No. C15-0928JLR, 2016 WL 7035062, at *15 (W.D. Wash. Dec. 2, 2016), the Western District of Washington was presented an issue of first impression of whether a defendant can allocate fault to a nonparty health care provider under RCW § 4.22.070.  Relying upon Idaho law, Judge Robart ruled that based upon the Idaho precedent and the unsettled nature of the application of Lindquist and comparative fault principles under Washington law, the defendant in Sudre was allowed to amend its complaint to add a nonparty health care provider as an empty chair pursuant to RCW § 4.22.070.  Based upon these arguments, Plaintiff’s motion for summary judgment was denied and Defendant was permitted to allocate fault to the hospital.  As a result Defendant driver’s successful motion to amend, Plaintiff amended her complaint to add the hospital as a defendant. 
Defense Verdict Based on Mathematical Impossibility
Dirk Holt of Holt Woods & Scisciani LLP recently obtained a complete defense verdict at arbitration in the defense of his corporate client who was involved in an automobile accident.  Plaintiff alleged that the defendant overtook his vehicle in an erratic manner, colliding with him as he changed lanes, and causing Plaintiff significant and ongoing personal injuries.  Dirk proved based upon the timing of the stoplights and positioning of the vehicles that it was mathematically impossible for the two vehicles to reach the alleged point of impact at the same time.