February 2, 2017 – BB&L wants to congratulate its attorneys Edward Bruya and Eric Byrd for their work on behalf of the Washington Defense Trial Lawyers (“WDTL”) to obtain a unanimous opinion from the Washington State Supreme Court in Dunnington v. Virginia Mason Med. Ctr., 91374-9, 2017 WL 449959 (Wash. Feb. 2, 2017).
The WDTL’s brief focused its analysis on defending Washington’s historical fidelity to the “but for” standard as the appropriate standard in medical negligence and loss of chance cases, and cautioned the Court against replacing it with the “substantial factor” standard. The application of the defense-adverse “substantial factor” standard would lower the bar to introduce speculative expert testimony, require a jury’s conjecture regarding proximate causation, and expose defendant medical care providers to a lower burden of proof. The WDTL briefing also referenced persuasive authority from Courts around the United States to encourage the Supreme Court to hold patients accountable for failing to abide by a health care provider’s instructions regarding follow-up care, and to allow such evidence as a basis for the affirmative defense of contributory negligence. Ultimately, the Supreme Court agreed with WDTL’s analysis, and held in favor of the defense to: (1) uphold the application of the “but-for” standard of causation to loss of chance claims, and (2) allow evidence of a patient’s failure to follow a provider’s instructions on follow-up care as proof of comparative fault. For more information about this decision, please see our client alert.