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The Law of Medical Malpractice in Wyoming:

A Survey of Basic Considerations

Medical Malpractice Lawyer in WyomingWyoming medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Wyoming are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Wyoming exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Wyoming by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Wyoming medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Wyoming. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through X examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Wyoming.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Wyoming?
-Required Elements of a Medical Malpractice Claim in Wyoming
-Introduction
-The Basic Elements
II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Wyoming
-The Discovery Rule
-Introduction
-The Discovery Rule in Wyoming
-Special Provisions
-Minors
-Incapacity
-Fraudulent Concealment and Foreign Objects
-Final Thoughts
III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in Wyoming
IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Wyoming
-Claims against the State
-Claims against Political Subdivisions
-Additional Immunities and Limitations on Liability
-Certificate of Merit
V. Required Elements of a Medical Malpractice Complaint
-Basic Elements
-Notice Pleading
VI. Expert Medical Witnesses
-Introduction
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Introduction
-Admissibility of Expert Testimony in Wyoming
VII. Comparative Negligence
-Modified Comparative Negligence with 51% Bar Rule
-Apportionment of Fault with Multiple Defendants
VIII. Limitation on Damages
IX. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Wyoming
X. Apologies and Gestures of Sympathy
XI. Website Disclaimer

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Wyoming?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Required Elements of a Medical Malpractice Claim in Wyoming

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Wyoming law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Wyoming medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Wyoming Supreme Court explained: “The mere fact of injury or the occurrence of a bad result, standing alone, is no proof of negligence in the ordinary malpractice action. The law does not require that for every injury there must be a recovery of damages, but only imposes liability for a breach of legal duty by a doctor proximately causing injury to the patient.”  Harris v. Grizzle, 625 P.2d 747, 749 (Wyo. 1981).

The Basic Elements

The basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff are as follows.

  1. Standard of care—applicable standard of care, recognized by the law, requiring the healthcare provider to conform to a particular standard of medical care or practice, e., duty;
  2. Breach—the healthcare provider’s conduct departed from the applicable standard of care, e., a breach; and
  3. Causation—the breach was the legal cause of the injury suffered. Metzger v. Kalke, 709 P.2d 414, 421 (Wyo. 1985).

The burden of proof in medical malpractice cases is set forth in WS § 1-12-601, which states:

In an action for injury alleging negligence by a health care provider the plaintiff shall have the burden of proving:

  1. If the defendant is certified by a national certificating board or association, that the defendant failed to act in accordance with the standard of care adhered to by that national board or association; or
  2. If the defendant is not so certified, that the defendant failed to act in accordance with the standard of care adhered to by health care providers in good standing performing similar health care services.

According to the Wyoming Supreme Court, the determination of the applicable standard of care in a medical malpractice case is a question of law for the judge to decide, not a question of fact for the jury.  Garnett v. Coyle, 33 P.3d 114, 122 (Wyo. 2001).  The Wyoming Supreme Court described the standard of care as follows:

[A] physician or surgeon must exercise the skill, diligence and knowledge, and must apply the means and methods, which would reasonable be exercised and applied under similar circumstances by members of his profession in good standing and in the same line of practice.

The skill, diligence, knowledge, means and methods are not those “ordinarily” or “generally” or “customarily” exercised or applied, but are those that are “reasonably” exercised or applied.  Negligence cannot be excused on the grounds that others practice the same kind of negligence.  Medicine is not an exact science and the proper practice cannot be gauged by a fixed rule.  Vassos v. Roussalis, 625 P.2d 768, 772 (Wyo. 1981).

The general rule is that the elements of a medical malpractice claim must all be established through expert witness testimony.  Oakden v. Roland, 988 P.2d 1057, 1059 (Wyo. 1999).  The Wyoming Supreme Court explained that when the issue to be determined is not within the common knowledge and experience of laypersons, “the jury must depend upon testimony of experts to explain the standard and thus prevent a conclusion based on conjecture and speculation.”  Vassos, 625 P.2d at 773.

However, when the issue under consideration is “within the common knowledge of the jury, the jury does not need assistance in comprehending the standard fixed by the court.”  Id. at 772.  Classic examples of situations that are considered within the common knowledge of lay jurors is when the wrong limb is amputated (left leg instead of right) and where a foreign object with no remaining therapeutic value is inadvertently left inside a patient following surgery.  In these types of scenarios, laypeople can draw upon their own common knowledge and experience to conclude that the defendant was negligent without the need for an expert to tell them so.

A medical malpractice plaintiff must “establish that an act or omission by a physician has breached a standard of care and that the breach was the cause, both in fact and proximately, of the damage suffered by the patient.”  Harris v. Grizzle, 625 P.2d 747, 753 (Wyo. 1981).

The Wyoming Supreme Court discussed proximate cause as follows: “The law of proximate cause in malpractice cases is clear.  Malpractice is a form of negligence.  Before a physician may be held liable for malpractice, it must be shown that he departed from recognized standards of medical practice.  In addition, that departure must be the proximate cause of the incident or occurrence which is the subject of the litigation.”  Harris v. Grizzle, 625 P.2d 747, 753 (Wyo. 1981).

The Supreme Court added that “[p]roximate cause means that the accident or injury must be the natural and probable consequence of the act of negligence.  The law does not charge a person with all the consequences of a wrongful act, but ignores remote causes and looks only to the proximate cause.”  Meyer v. Mulligan, 889 P.2d 509, 516 (Wyo. 1995).

Proximate cause is a question of fact to be decided by the trier of fact, unless there is only one conclusion that can be drawn from the evidence.  Ely v. Kirk, 707 P.2d 706, 711 (Wyo. 1985).  And the Wyoming Supreme Court requires expert opinion testimony to prove proximate cause in medical malpractice cases.  Keller v. Anderson, 554 P.2d 1253 (Wyo. 1976).

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Wyoming

The statute of limitations for medical malpractice claims is set forth in 2017 Wyoming Statutes (“WS”) § 1-3-107(a).  The standard rule is that medical malpractice claims must brought within two years of the date of the alleged act, error, or omission.  Id.  That is, the standard rule requires medical malpractice claims to be commenced within two years of the date of the alleged negligence.

Also, if “the alleged act, error or omission is discovered during the second year of the two (2) year period from the date of the act, error or omission, the period for commencing a lawsuit shall be extended by six (6) months.”  WS § 1-3-107(a)(iv).

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired.  Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery.  As such, it is critical to understand how time is computed under Wyoming law in calculating the exact date the applicable limitations period ends.  Rule 6 of the Wyoming Rules of Civil Procedure sets forth how time is calculated under Wyoming law.  It instructs:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statutes, the day of the act, event, or default from which the designated period of time begins to run shall not be included.  The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days.  As used in this rule, “legal holiday” includes any day officially recognized as a legal holiday in this state by designation of the legislature, appointment as a holiday by the governor or the chief justice of the Wyoming Supreme Court, or any day designated as such by local officials.

Once the date of accrual of a medical malpractice claim in known, the exact date the two-year limitations period ends can easily be calculated by applying the foregoing rules for the computation of time.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Wyoming

Wyoming recognizes the Discovery Rule in medical malpractice cases.  It is codified in WS § 1-3-107(a) as the second component of the standard statute of limitations.  The statute states that a cause of action must be commenced within either two years of the date of negligence or within two years “after the discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:

  1. Not reasonably discoverable within a two (2) year period; or
  2. The claimant failed to discover the alleged act, error or omission within the two (2) year period despite the exercise of due diligence.” WS § 1-3-107(a)

Under the statute, a plaintiff must commence an action for medical malpractice within whichever applicable limitations period that provides the greatest length of time.  That is, if the Discovery Rule applies to a plaintiff’s claim, then he or she is not required to commence an action within two years from the date the alleged negligence occurred; rather, under the Discovery Rule, the plaintiff must commence an action within two years after the discovery of the negligence.

The statute does not answer the question of what constitutes discovery of the negligence for purposes of triggering the running of the two-year limitations period.  There are two possibilities: (1) when the injury is discovered—injury only or (2) when the injury is discovered together with its cause—injury and medical cause.  The Wyoming Supreme Court held in favor of the latter possibility as the triggering event for the running of the two-year Discovery Rule limitations period.  Duke v. Housen, 589 P.2d 334, 340 (Wyo. 1979).  The Supreme Court explained:

In view of the specific language of § 1-3-107(a) and the rationale behind the discovery rule generally, we hold that a plaintiff discovers an “alleged act, error or omission” within the meaning of [the statute] when he learns that his harm resulted from the wrongful conduct of the defendants.  When such discovery occurs during the second year following the alleged wrongdoing, the limitation period for filing suit extends two and one-half years from the date of the alleged act.

In reaching this holding, we do not mean to imply that discovery of the alleged act under [the statute] necessarily includes discovery of the legal theories which support a claim.  We expressly rejected the notion in Olson v. A.H. Robins Company, Inc., supra, 696 P.2d at 1299, that a plaintiff does not discover her cause of action until she discovers her legal rights. [The statute] focuses on the facts which make up a cause of action rather than on the applicable legal theories. [emphasis in original] Metzger v. Kalke, 709 P.2d 414, 419-420 (Wyo. 1985).

The Supreme Court added:

Wyoming is a “discovery” state; therefore, the statute of limitations is triggered when the plaintiff knows or has reason to know the existence of the cause of action.  The party asserting a right to an exception to the limitations has the burden of proof.  Ordinarily a negligence act and the resulting injury occur simultaneously.  Occasionally the injury will not be sustained or is not know until a later date.  Olson v. A.H. Robins Company, Inc., 696 P.2d 1294, 1297 (Wyo. 1985).

Accordingly, the two-year limitations period under the Discovery Rule begins to run when the plaintiff discovers the injury and that its likely cause, i.e., medical negligence.  It is a question of fact for the jury to determine on what date that occurred.

Special Provisions

Minors

In general, minors are subject to a different limitations period than the standard period that normally applies to medical malpractice claims. WS § 1-3-107(a)(ii) governs medical malpractice claims by minors.  It provides that a medical malpractice claim by a minor must be commenced by his or her eighth birthday or within two years of the date of the occurrence of the alleged negligence, whichever period is greater.

The Discovery Rule also applies in the same manner as with plaintiffs who are not minors. WS § 1-3-107(a)(ii).  Also, as with the standard statute of limitations, if “the alleged act, error or omission is discovered during the second year of the two (2) year period from the date of the act, error or omission, the period for commencing a lawsuit shall be extended by six (6) months.” WS § 1-3-107(a)(iv).

Legal Disability

Individuals who are under a legal disability other than minority must commence a medical malpractice action within one year of the removal of the disability. WS § 1-3-107(a)(iii).

Final Thoughts

The application of Wyoming’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven.  The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Wyoming medical malpractice attorney.  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact a Wyoming attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Wyoming

Wyoming does not have a statute of repose applicable to medical malpractice claims.  Accordingly, in theory, there does not appear to be an outer limit on the time in which a person has to discover an injury and its likely cause under the Discovery Rule.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Wyoming

For purposes of the Wyoming Governmental Claims Act, the term ‘governmental entity’ means “the state, University of Wyoming or any local government.” WS § 1-39-103(a).  And the term ‘local government’ means:

cities and towns, counties, school districts, joint powers boards, airport boards, public corporations, community college districts, special districts and their governing bodies, all political subdivisions of the state, and their agencies, instrumentalities and institutions, and governmental entities of another state but only while physically present in the state of Wyoming and while in the course of operating a cooperative public transportation program as defined by W.S. 16-1-104(f).  Id.

In general, immunity is waived for medical malpractice claims against governmental entities and their employees.  WS §§ 1-39-109 and 1-39-110.  WS § 1-39-109 states: “A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any public hospital or in providing public outpatient health care.”

WS § 1-39-110(a) provides: “A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of health care providers who are employees of the governmental entity, including contract physicians, physician assistants, nurses, optometrists and dentists who are providing a service for state institutions or county jails, while acting within the scope of their duties.”

Medical malpractice claims against an employee of a governmental entity are subject to a $1,000,000 cap on damages set forth in WS § 1-39-110(b), which states: “the liability of a governmental entity shall not exceed the sum of one million dollars ($1,000,000.00) to any claimant for any number of claims arising out of a single transaction or occurrence nor exceed the sum of one million dollars ($1,000,000.00) for all claims of all claimants arising out of a single transaction or occurrence.”

In order to bring an action against a governmental entity under the Governmental Claims Act, the plaintiff must present the claim to the entity “as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission….” WS § 1-39-113(a).  The two-year period will not bar the claim if the plaintiff can prove that the alleged act, error or omission was:

  1. Not reasonably discoverable within a two-year period; or
  2. The plaintiff failed to discover the alleged act, error or omission with the two-year period despite the exercise of due diligence.

A claim against a governmental entity must state:

  1. The time, place and circumstances of the alleged loss or injury including the name of the public employee involved, if known;
  2. The name, address and residence of the claimant and his representative or attorney, if any; and
  3. The amount of compensation or other relief demanded. WS § 1-39-113(b)

The statute of limitations governing claims against governmental entities is contained in WS § 1-39-114.  It provides that an action subject to the Act must be commenced within one year after the date the claim is filed pursuant to WS § 1-39-113 (discussed above).

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Wyoming

Wyoming has enacted a general Good Samaritan law that is codified in WS § 1-1-12-(a).  The statute provides immunity from civil damages for individuals who voluntarily render emergency care at the scene of an accident.  It states:

Any person licensed as a physician and surgeon under the laws of the state of Wyoming, or any other person, who in good faith renders emergency care or assistance without compensation at the place of an emergency or accident, is not liable for any civil damages for acts or omissions in good faith.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the 2017 Wyoming Statutes.  Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title 1, Chapter 1—General Provisions as to Civil Actions.

V. Required Elements of a Medical Malpractice Complaint

Basic Elements

In Wyoming, there is only one recognized form of action, and it is known as a “civil action.”  Rule 2 of the Wyoming Rules of Civil Procedure.

According to Rule 3, a “civil action is commenced by filing a complaint with the court.”  Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief.  A complaint is one of the seven authorized types of pleadings provided for in Rule 7(a).

Rule 3.1(a) requires that every “complaint or other document initiating a civil action shall be accompanied by a completed civil cover sheet form available on the Wyoming Judicial Branch website or from the Clerk of Court.”  Rule 3.1(b), however, states that the cover sheet requirement “is solely for administrative purposes and has no legal effect in the action.”

The complaint must contain:

  1. a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
  2. a short and plain statement of the claim showing that the pleader is entitled to relief; and
  3. a demand for the relief sought, which may include relief in the alternative or different types of relief. Rule 8(a)

According to Rule 8(d), each “allegation must be simple, concise, and direct.  No technical form is required.”  Under the Rule, the plaintiff may set forth two or more statements of a claim alternatively or hypothetically, either in a single count or in separate ones, and if the plaintiff “makes alternative statements, the pleading is sufficient if any one of them is sufficient.”  Id.  Finally, the complaint “must be construed so as to do justice.”  Rule 8(e).

Rule 10(a) requires that the complaint “must have a caption with the court’s name, a title, a file number,” and a designation as a complaint.  “The title of the complaint must name all the parties….”  Id.  The plaintiff must state his or her claims “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”  Rule 10(b).

The complaint “must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, telephone number, and attorney number, if any.”  Rule 11(a).

Notice Pleading

Wyoming is a notice pleading state.  Jackson State Bank v. Homar, 837 P.2d 1081, 1085 (Wyo. 1992).  The Wyoming Supreme Court explained that the fundamental function of a pleading is to apprise the adverse party of the nature of the claim.  Id.   the Supreme Court further explained that the “specificity standard of the rule is satisfied where a complainant provide the opposing party fair notice of the claims against him.”  Id.  Finally, the Court instructed that “[t]echnical forms of pleading are not required under the rules, therefore, pleadings must be liberally construed to ensure substantial justice.”  Id.

Fact pleading is the other (less common) system of pleading.  For example, Oregon is a fact (or code) pleading state.  Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983).  According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood.  The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought.  This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A).  Id. at 1191-1192.  Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VI. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The starting point in determining whether a potential expert witness is qualified to provide opinion testimony in a medical malpractice case is Rule 702 of the Wyoming Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

According to the Wyoming Supreme Court, “it is recognized in this state that rulings as to whether a witness is qualified as an expert are discretionary with the trial court and will not be disturbed unless clearly prejudicially erroneous, and then only in extreme cases.”  Thomas v. Metz, 714 P2d 1205, 1208 (Wyo. 1986).  As such, trial courts have broad discretion in determining whether a prospective expert witness is qualified to provide opinion testimony.

The Wyoming Supreme Court explained that “to qualify as an expert, a witness must first establish his expertise by reference to ‘knowledge, skill, experience, training, or education.’  An expert witness should ‘be qualified as an expert with regard to each area in which he offers testimony.’” [internal citations omitted] Stallman v. Wyoming Workers’ Safety and Compensation Division, 297 P.3d 82, 94 (Wyo. 2013).

Accordingly, an expert witness is not required to hold the same title or degree as the defendant in order to be qualified to provide witness testimony against the defendant.  As long as the prospective expert witness can establish that he or she possesses expertise by knowledge, skill, experience, training, or education on the issue upon which he or she intends to offer opinion testimony, then the expert witness is qualified to provide expert testimony.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in Wyoming

The starting point in determining whether expert witness testimony in a medical malpractice case is admissible is Rule 702 of the Wyoming Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Wyoming uses the Daubert standard in determining the admissibility of expert witness testimony.  Bunting v. Jamieson, 984 P.2d 467, 471 (Wyo. 1999).  In Bunting, the Wyoming Supreme Court expressly adopted Daubert, announcing: “We now expressly adopt the analysis provided by Daubert and its progeny as guidance for the Wyoming courts’ determination whether to admit or exclude expert testimony.”  Id.

In Bunting, it was argued that a Daubert analysis “is not applicable to the opinions of a treating physician based on medical knowledge within the physician’s specific area of expertise.”  Id.  The Wyoming Supreme Court rejected that position, citing the following U.S. Supreme Court discussion on the issue in Kumho Tire Company, Ltd. v. Carmichael, 119 S.Ct. 1167, 1171 (1999):

We conclude that Daubert’s general holding—setting forth the trial judge’s general “gatekeeping” obligation—applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge.  See Fed. Rule Evid. 702.  We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability.  But, as the Court stated in Daubert, the test of reliability is “flexible,” and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.  Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.

The Wyoming Supreme Court explained: “The primary goal of Daubert’s gatekeeping requirement is to ensure the reliability and relevancy of expert testimony.  It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. [internal quotation marks omitted] Bunting, 984 P.2d at 471.

VII. Comparative Negligence

Modified Comparative Negligence with 51% Bar Rule

By statute, Wyoming uses modified comparative negligence with a 51% bar rule. WS § 1-1-109(b).  The statute provides that a plaintiff’s contributory negligence does not bar recovery, stating:

Contributory fault shall not bar a recovery in an action by any claimant or the claimant’s legal representative to recover damages for wrongful death or injury to person or property, if the contributory fault of the claimant is not more than fifty percent (50%) of the total fault of all actors.  Any damages allowed shall be diminished in proportion to the amount of fault attributed to the claimant.

Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not greater than the defendant or defendants being sued by the plaintiff—the 51% bar rule.  If the plaintiff’s percentage share of determined fault is greater than the total of the defendant or defendants, then the plaintiff is not entitled to any recovery.

Under contributory negligence (the doctrine that Wyoming followed prior to implementing the current doctrine of modified comparative negligence.  Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834, 836 (Wyo. 1991)), a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury.  Contributory negligence is extremely unforgiven.  If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages.  It is for this reason that nearly every state has abandoned it.  Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence.

To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million.  Under comparative negligence, the plaintiff will still recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault).  That is the result for under Wyoming’s current doctrine of modified comparative negligence.  In contrast, under contributory negligence, the plaintiff recovers nothing.  The plaintiff’s 10% allocation of fault serves as a complete bar to recovery.  That is the stark difference between the two doctrines.

Comparative negligence is a fault and damages allocation system.  Under Wyoming’s version, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury. WS § 1-1-109(b).  Fault is determined and apportioned among the plaintiff and all defendants, and the amount of damages the plaintiff can recover is limited by his or her relative share of fault.  Id.  The statute provides: “Any damages allowed shall be diminished in proportion to the amount of fault attributed to the claimant.”  Id. WS § 1-1-109(d) further provides that the court must reduce the damages in proportion to the percentage of fault attributed to the claimant and enter judgment against each defendant in the amount of fault attributed to each of them individually.

For example, assume a plaintiff is determined to be 25% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $75,000 because the plaintiff’s allocated percentage share of fault, i.e., 25% or $25,000, is deducted from the damage award.  If the plaintiff were determined to be 51% or more at fault, he or she would not be entitled to any recovery because Wyoming imposes the 51% bar rule.

The statute requires that the court advise the jury “to determine the total amount of damages sustained by the claimant without regard to the percentage of fault attributed to the claimant, and the percentage of fault attributable to each actor….” WS § 1-1-109(c).  In addition, the court must “Inform the jury of the consequences of its determination of the percentage of fault.”  Id.  Thus, in contrast to the rule in some states, Wyoming law requires courts to fully inform the jury on how its version of comparative negligence with the 51% bar rule works.

The question of whether the plaintiff in a case was contributorily negligent is one of fact, and thus it is for the jury to decide.  Board of County Commissioners v. Ridenour, 623 P.2d 1174, 1179 (Wyo. 1981).  The defendant has the burden of proof in establishing that the plaintiff’s conduct constituted contributory negligence.  Id.

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied.  Each approach can lead to vastly different results.  The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s.  For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery.  Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought.  In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants.  Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

It appears that Wyoming currently utilizes the combined comparison approach.  In 1981, the Wyoming Supreme Court first addressed this question in Ridenour.  At the time of the decision, the comparative negligence statute read: “Contributory negligence shall not bar a recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if the contributory negligence was not as great as the negligence of the person against whom recovery is sought.” [emphasis supplied] Ridenour, 623 P.2d at 1180.  Because the statute used only the singular of the term ‘person,’ the Court announced:

We conclude that the legislature in enacting the Comparative Negligence Act adopted the “Wisconsin Rule.” [individual comparison] We have reached this conclusion for several reasons.  First, the simple language of the statute is that the percentage of the plaintiff’s negligence will be compared to the percentage of negligence attributed to “the person against whom recovery is sought.”

However, the Legislature subsequently amended WS § 1-1-109(b) to read, which is the current form of the statute: “Contributory fault shall not bar a recovery in an action by any claimant or the claimant’s legal representative to recover damages for wrongful death or injury to person or property, if the contributory fault of the claimant is not more than fifty percent (50%) of the total fault of all actors.” [emphasis supplied]

By amending the statute to read “of all actors,” it appears that the Legislature expressed its intent that the combined comparison approach is the law in Wyoming since it directly addressed the rationale upon which the Supreme Court ruled in favor of the individual comparison approach in Ridenour.  Accordingly, it would appear very likely that the combined comparison approach is the current law in the state.

VIII. Limitation on Damages

Wyoming does not impose a cap on economic or noneconomic damages in medical malpractice cases.  In fact, Article 10, Section 4(a) of the Wyoming Constitution prohibits any such limitation on damages.  It reads: “No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.”

IX. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Wyoming

Wyoming law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases.  However, there is an important limitation on contingency fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware.

In general, contingent fees in medical malpractice cases are subject to the detailed rules governing all contingent fee arrangements in Wyoming under the Rules Governing Contingent Fees for Members of the Wyoming State Bar. Rule 5(a) states “that a common contingent fee in casualty and wrongful death cases is thirty-three and one-third (331 ⁄3) percent of amounts recovered prior to appeal and forty-five – fifty (45 – 50) percent of amounts recovered on appeal.”

In general, under Rule 5(a), contingent fees that do not exceed the following schedule are presumed to be reasonable and not excessive where the total recovery does not exceed $1,000,000:

  1. 331/3% of the recovery if the claim is settled prior to or within 60 days after suit is filed;
  2. 40% of the recovery if the claim is settle more than 60 days after filing suit or if a judgment is entered upon a verdict.

Rule 5(b) provides: “For those amounts of a recovery in excess of one million dollars ($1,000,000) a contingent fee of thirty (30) percent of such excess sum over one million dollars ($1,000,000) shall be presumed reasonable and not excessive.”

The parties are free to contract for different contingent fee arrangements. Rule 5(c).  A party to a contingent fee arrangement may submit a written application to have a review of the reasonableness of the fee conducted by the Committee on Resolution of Fee Disputes of the Wyoming State Bar. Rule 5(f).  The application for review must be filed with the Committee within 60 days of the final distribution of the money proceeds.  Id.  In determining the reasonableness of the fee, the Committee may consider, as applicable, the following factors:

  • the amount of costs incurred or advanced by the attorney in representing the client;
  • the time and labor required;
  • the novelty and difficulty of the questions involved;
  • the skill requisite to perform the legal service properly;
  • the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney;
  • the fee customarily charged in the locality for similar legal services;
  • the amount involved in the controversy and the benefits resulting to the client;
  • the time limitations imposed by the client or by the circumstances;
  • the nature and length of the professional relationship with the client;
  • the experience, reputation, and ability of the attorney or attorneys performing the services; and
  • the contingency or the certainty of the compensation.

The decision of the Committee is subject to court review. Rule 5(g).  Finally, Rule 6 provides model a fee agreement and associated forms that all contingent fee agreements in Wyoming must be modelled after.

X. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Wyoming is among the states that have enacted an “I’m Sorry” law.  It is contained in WS § 1-1-130(a) and is specific to healthcare providers.  The statute shields healthcare providers who communicate statements of apology or sympathy by providing that such expressions do not constitute a legal admission of liability and making them inadmissible in any civil action or arbitration against the healthcare provider.  The statute states:

In any civil action or arbitration brought by an alleged victim of an unanticipated outcome of medical care against a health care provider, any and all statements, affirmations, gestures or conduct expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, or to a relative or representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury or death of the alleged victim as the result of the unanticipated outcome of medical care, are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.  Id.

For purposes of the statute:

The term ‘health care provider’ means a person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care in the ordinary course of business or practice of a profession;

The term ‘relative’ means a spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half brother, half sister or parent of a spouse, and includes those relationships established by adoption;

The term ‘representative’ means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a medical power of attorney or any person recognized in law or custom as a patient’s agent; and

The term ‘unanticipated outcome’ means the result of a medical treatment or procedure that differs from an expected result. WS § 1-1-130(b).

Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Wyoming understand that they can still be useful to potential plaintiffs.  Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider.  While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

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[1] In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.