Wyoming Medical Malpractice Laws

Bringing a claim of medical malpractice forward is a brave move – either you or a loved has been injured by the negligence of a healthcare provider and you have chosen not to take that sitting down. A well-executed skillfully litigated medical malpractice suit will provide recompense for the hardships and pain you have felt while bringing justice to those who breached the trust you placed in them and negligently injured you. It is no small undertaking. Furthermore, the process can be intimidating, as you often must take on juggernaut hospitals and physicians who have ample monetary and legal resources. The legal process is labyrinthine at best – chocked with deadlines, confusing language, and lawyer jargon. This is the last thing most are ready to contend with when they are in robust health, let alone when they are recovering from a painful or even debilitating injury.

There is a finite amount of time to bring a claim forward, and if you fail to bring a claim forward in the allotted time frame it is extremely likely that your case will be dismissed. If you consider pursuing litigation for medical malpractice, timeliness is of the utmost importance. Your claim will be evaluated for merit by the court, who may also reduce or limit your entitlement to damages. It is crucial that you have superb legal representation at the helm of your case. This page is meant to provide an overview of the process associated with filing medical malpractice claims in Wyoming. However, you are strongly encouraged to speak with a licensed Wyoming medical malpractice attorney, who may guide you through this finessed process.

Suing For Medical Malpractice in Wyoming

Medical malpractice suits may be brought against a negligent healthcare provider for an “act, error or omission” that occurs during the course of treatment. Perhaps the most important aspect to remember is that claims may only be brought forth if they resulted from the provider’s proven negligence. Even flawlessly executed medical care may not lead to a good result for the patient. This would constitute the basis for a malpractice claim. In order to constitute a claim, a healthcare professional must deviate from the standard of care owed to the patient in order to constitute a malpractice claim. The law in Wyoming places a relatively stringent limit on the amount of time one has to file a claim against a provider. Although Wyoming imposes no limits on the damages a plaintiff may recover if they win their case, state law allows for damages to be reduced by the plaintiff’s share of fault in the injury, if any. It is fairly common for claims to settle outside of court, prior to advancing to the trial stage.

While some states have a vigorous pre-trial screening process to test the merit of claims, Wyoming does not. However, you will need to recruit expert witnesses to independently verify and possibility testify as to the validity of your claim.

How long do I have to file a medical malpractice case in Wyoming?

The first step in filing a medical malpractice claim in Wyoming is making sure it is still within your rights to do so. For a number of reasons, the state imposes a statute of limitations (time limits) regarding malpractice claims. An individual has 2 years from the date of the injury, or the discovery of it, to bring their claim forward. Minors must commence action by their 8th birthday or 2 years from the act, whichever is later. If you try to file your claim after the statute of limitations has expired, there is a very real chance that the court will throw out your case. This is but one of many deadlines associated with the process of litigating medical malpractice. Doing all that is asked of you in a timely manner is paramount. Your lawyer will be key in making certain that you are not missing deadlines.

The reason behind imposing this general two-year limit (which is shorter than a number of other states, who impose a three-year limit to bring a claim) is, in short, evidence. Evidence becomes less credible and less compelling with the passage of time. It is within your interest and the court’s to bring a claim forward as soon as is possible. It will be easier for you, your lawyer and expert witnesses to prove your case if your case is promptly brought forward.

It is important to note the implications of the ‘discovery rule,’ which can be enormously helpful to plaintiffs. If an injury is not immediately evident or if an act of malpractice has been concealed, the statute of limitations will not begin running until the injury is discovered. There have been many documented cases in which symptoms of an injury did not immediately manifest, the discovery rule is a benefit to such cases. If an injury or act of malpractice is discovered in the second year of the two-year statute, the time limit may be extended by six months. [1]

In Wyoming medical malpractice cases, who is responsible?

You may bring a malpractice lawsuit against a healthcare provider based on their errors, omission, misconduct and negligence. Wyoming law specifically defines health care providers as physicians, osteopaths and physician assistants licensed to practice, as well as all licensed nurses, pharmacists dentists, dental hygienists, and optometrists. [2] The individual or institution you seek to file suit against must fall under the state’s definition of ‘health care provider’ in order for the suit to proceed. Wyoming case law has established that hospitals may be held liable even for the actions of non-employed physicians, so long as the physician was rendering care in their facility.

What if I am partially to blame? Can I still recover money for WY medical malpractice?”

When assessing the injury at the root of a malpractice case, the court will attempt to determine who to allocate fault for the injury. This way, an individual who exacerbates, contributes to or causes their own injury will not be eligible to collect damages for their claim or will see those damages substantially reduced. Fault may lie with both parties in more subtle manners; Wyoming law seeks to fairly handle such situations with the doctrine of modified comparative fault. 22 other states follow the doctrine of modified comparative fault with the 51% bar rule. This allows plaintiffs to collect damages so long as they are no more than 50% responsible for their injury. A minority of states follow the doctrine of pure contributory negligence, which allows a plaintiff to collect damages even if they are as much as 99% at fault for their injuries. (In such an extreme circumstance, the costs of litigation would probably outweigh the damages a plaintiff would receive, assuming they reached the maximum capacity of legal fault.)

Let’s examine the ways in which fault may lay with both parties.

Imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor should never have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Wyoming law specifically states that the “plaintiff’s own negligence will never bar recovery completely, but may limit their recovery in proportion to their liability. [3]

Are there medical malpractice recovery caps in Wyoming?

A large number of states impose damage caps in medical malpractice claims. Damage caps limit the amount of money an injured claimant can recover as compensation for their injury and losses. This is meant to prevent absurdly high damage amounts in malpractice cases, which would have a negative consequence. Sky high damage payouts would drive up liability insurance premiums, and doctors would no doubt hand these expenses down to patients with increased health care costs.

The Wyoming State constitution prohibits state legislature to enact any laws which would limit the damages recoverable by an injured plaintiff, or those who may sue on their behalf.

In medical malpractice cases, Wyoming mandates that the damages awarded to a plaintiff be reduced by the amount of collateral sources that have already been paid to the patient. This means that a plaintiff cannot be reimbursed for medical expenses that were already covered by health insurance, other kinds of health-care covering insurances. That being said, there are different kinds of damages a claimant would be entitled to if they win their case. These are economic damages and non-economic damages. Punitive damages are a different type which must be paid by the defendant for the purpose of punishment, however, these are not to be paid to the plaintiff.

Economic damages can include:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages are not readily quantifiable, and can include:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

The state of Wyoming has established an insurance pool to cover damages in medical malpractice cases. The state will cover up to $1 million in damages per year for each participant. Physicians must carry insurance to cover the first $50,000 of a claim and also may pay into the pool. This is meant to keep insurance premiums for health care providers in check, in turn keeping health care costs lower for all.

Expert witness reporting and testimony

Many states require that a prospective plaintiff complete what is known as an affidavit of merit/certificate of merit. It is a formal document completed with the assist of an expert in the field relevant to your claim and is meant to verify the validity of your claim of malpractice. Wyoming requires all malpractice claims be submitted to an arbitration panel, where they will review the claim. The claimant must submit a statement, prepared and signed by an expert in the medical practice of issue, confirming the expert’s opinion that malpractice took place based on available evidence. This will be the claimant’s first use of an expert but not the last, as expert testimony will also be required at trial.

To determine that there was a breach of the standard of care, expert testimony is literally indispensable. The expert will define the standard of care which was owed to the patient, explicitly outline the way in which it was breached, and how that breach created the plaintiff’s injury. A 1983 court case in Wyoming determined that expert testimony is required in court unless the malpractice is so egregious that even a layperson could understand it. [4]

Are some parties immune from medical negligence cases?

States are generally shielded from liability and damages by something known as the doctrine of sovereign immunity. Sovereign immunity protects the state, any governmental entity and any government employee acting within the scope of their employment from suit. In other states, many have questioned the reach of sovereign immunity and made probes as to whether certain parties should be held liable despite government ties. Frequently, publicly funded University hospitals come into question – should they be liable for veritable malpractice, or does sovereign immunity protect them as a governmental entity? While legislatures and courts in other states have tenuously attempted to untangle this question, Wyoming has opted to out and out remove its right to sovereign immunity in many areas, citing benefit to its constituents. In the Wyoming Governmental Claims Act, it is written that the state “recognizes the inherently unfair and inequitable results which occur in the strict application of the doctrine of governmental immunity. While the act does not allow the government to be strictly liable under the law, it does “abolish all judicially created categories such as “governmental” or “proprietary” functions and “discretionary” or “ministerial” acts previously used by the courts to determine immunity or liability.” The act took care to specifically cite the University of Wyoming as a defined government entity. While sovereign immunity still applies elsewhere, it is waived in instances of medical negligence, wherein “a governmental entity [causes] bodily injury, wrongful death or property damage… 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. [5]

Setting medical malpractice cases in WY

Many claims never advance to trial because they are settled outside the courtroom. Formal litigation can be costly and above all time consuming for all parties involved. For this reason, many states have provisions which allow for some kind of pre-trial arbitration. Some states impose mandatory arbitration as a precursory step in litigation. Wyoming previously had deemed mandatory pretrial arbitration unconstitutional in the Wyoming Supreme Court case Hoem v. State, however, this was overturned. Pretrial review by an arbitration panel is now mandatory in the state. Only if no settlement is reached does the case advance to trial, and settlements are encouraged. Provisions for Wyoming pre-trial arbitration are as follows:

A panel of five individuals will be assembled, consisting of 2 healthcare providers, from the respondent’s (prospective defendant) field if feasible, 2 attorneys, and 1 layperson approved of by the first 4 members. The panel will review the claim. The health care providers will be selected from a list provided by the state licensing agency of the defendant in the claim, and the attorneys will be selected from a list provided by the state bar. The five-panel members shall elect a chairman to preside over the hearings. If it is found that panel member cannot be impartial in the hearings, they will be disqualified and replaced.

The panel wil evaluate the claim through the lens of the following questions. Was there substantial evidence that the acts complained of occurred and that they constitute malpractice? Was there a reasonable probability that the patient was injured as a result of the acts complained of? If no settlement can be reached with pre-trial arbitration, the claim will proceed to trial. [6]

Litigating medical negligence cases in Wyoming

If the parties in the case were unable to reach a settlement, the claim proceeds to court.

Initiating the case

A claim for medical malpractice in Wyoming is initiated by preparing a Complaint which must be served on the defendants in your case, specifically describing the alleged malpractice which took place. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint. Any party must make a demand for a jury trial, and must specifically demand a jury of twelve jurors, otherwise, the jury will be comprised of six individuals.

Preparing for litigation

After the Complaint, Summons and Answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

In a medical malpractice case, it is possible that you will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist. You must comply with any request unless you file a written objection stating the reason or reasons for your objection.

Pretrial litigation

Again, the state of Wyoming does not impose mandatory pretrial arbitration. However, claimants have to option to pursue it. Given the arduous and tedious nature of litigation, it is not unheard of for a case to settle outside of court, before ever going to trial. This is where the topic of arbitration comes into play, so as to avoid going to the lengths of a full-blown trial. Anytime prior to trial, a settlement between the disputing parties is permitted.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Wyoming a judge or a jury. In Wyoming, a jury consists of twelve people unless all parties agree on a lesser number.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

A juror in Wyoming must:

(i) An adult citizen of the United States who has been a resident of the state and of the county ninety (90) days before being selected and returned;

(ii) In possession of his natural faculties, of ordinary intelligence and without mental or physical infirmity preventing satisfactory jury service;

(iii) Possessed of sufficient knowledge of the English language.

(b) No citizen shall be excluded from service as a juror on account of race, color, religion, sex, age, national origin or economic status

After the jury selection is completed, opening statements will begin. During opening statements, both attorneys are permitted to make statements that explain their client’s position and may also outline the evidence they expect to present during the trial that will support their claims. From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Often, the losing party of a lawsuit will seek an appeal to the court’s decision. An appeal allows a higher court to review the decision made in a lower court. There is a 30-day deadline to file an appeal.

How To Find the Best Medical Malpractice Lawyer in Your Case

Initiating any legal proceeding can be daunting and overwhelming, especially if it is being brought against a high-powered doctor or hospital. It is likely that you would rather focus on healing your injury and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. After all, why should you be forced to go out-of-pocket for an injury that was caused by someone else? In order to increase your chances of success in your medical malpractice case, it is very important to find competent and highly skilled legal representation.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your timetable, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some Notable Decisions From Wyoming Medical Malpractice Cases

The following are Wyoming medical malpractice cases which resulted in plaintiff verdicts. Every case is different and will not necessarily yield the same outcome.

Ooten V. Emery

Chad Ooten, 33 received spinal surgery in the fall of 2000 at Big Horn Basin Orthopedics. His surgeon Dr. Stephen Emery removed the wrong cervical disc. “Within a week, he had to go to Billings to have neurosurgeons perform the surgery at the correct level,” Todd Hambrick, Ooten’s Casper-based attorney said. “Since then, unfortunately, the wrong surgery never healed.” Two additional surgeries were performed. After arduous years of litigation, Ooten’s attorney secured $230,000 in economic damages and $770,000 in non-economic damages. Attorneys for both plaintiff and defendant had not wanted the case to progress to trial but cited each other’s “unreasonableness” during settlement negotiations as a reason that it did. This was a massive settlement amount for the state and was harshly criticized by the Wyoming Medical Society, who claimed it would act as a deterrent for doctors considering to bring their practice to the state. The verdict came as Wyoming voters narrowly missed the mark on a creating an amendment that would cap non-economic damages at $250,000. There remains no cap in place in the state.

Prager V. Cullison

Wyoming man, Louis Prager won a $9 million settlement against Campbell County Memorial Hospital and Brian Cullison, M.D. for medical malpractice. Cullison was found to have breached the standard of care when he failed to diagnose Prager’s broken neck. The delay in diagnosis and treatment resulted in left shoulder paralysis and debilitating pain for Prager. “Dr. Cullison assured Mr. Prager that he had no broken bones and was “fine”. Mr. Prager reasonably believed x-rays of his neck had been acquired, as he had been placed in a CT machine and x-rays had been taken,” according to Tom Metier, Prager’s trial counsel.

Footnotes

[1] WY Stat § 1-3-107

[2] WY Stat § 1-1-129

[3] Wyo. Stat. § 1-1-109(b)

[4] Wyo. Stat. § 9-2-1519

[5] Wyo. Stat. § 1-39-110

[6] WY Stat § 9-2-1520