Washington's Supreme Court Overturns Law Requiring Plaintiffs to File a Certificate of Merit in All Medical Malpractice Lawsuits
In an opinion issued on September 17, 2009, the Washington Supreme Court struck down RCW 7.70.150, a law that requires plaintiffs to file a certificate of merit with regard to all medical malpractice lawsuits. In Putnam v. Wenatchee Valley Medical Center, ___ Wn. 2d ___, (2009), the Washington Supreme Court reversed the trial court and held that the law is unconstitutional “because it unduly burdens the right of access to courts and violates the separation of powers.”
In Putnam, the plaintiff filed a lawsuit against the defendant medical center and several of its employees alleging that they negligently failed to diagnose her ovarian cancer in 2001 and 2002. She alleged that the delay in her diagnosis until 2005 caused her to miss the opportunity to undergo early treatment and reduced the likelihood of her survival. The trial court dismissed the plaintiff’s claims because she failed to file a certificate of merit as required by Washington’s medical malpractice litigation statute, RCW 7.70.150. The trial court also held that the certificate of merit requirement was constitutional. The plaintiff appealed the trial court’s rulings directly to the Washington Supreme Court asserting that RCW 7.70.150 is unconstitutional because it unduly burdens the right of access to the courts and violates the separation of powers.
RCW 7.70.150 requires plaintiffs in medical malpractice actions to file a certificate of merit with the pleadings. The certificate must contain a statement from an expert stating that “based on the information known at the time of executing the certificate of merit, . . . there is a reasonable probability that the defendant’s conduct did not follow the accepted standard of care.” RCW 7.70.150(3).
On the first issue, the Washington Supreme Court found that requiring medical malpractice plaintiffs to submit a certificate of merit prior to the opportunity to conduct discovery may not be possible, and results in hindering the right of access to the courts.
In addressing whether RCW 7.70.150 violates the separation of powers, the Washington Supreme Court noted that the certificate of merit requirement was “procedural” rather than “substantive” because it addresses how to file a claim to enforce a right provided by law. The statute does not address the primary rights of either party but deals only with the procedures to effectuate those rights. The Washington Supreme Court concluded that RCW 7.70.150 is a procedural law that changes Washington’s civil rules governing the procedures for filing pleadings in a lawsuit, and thus invades the court’s prerogative to set court procedures, and violates the doctrine of separation of powers.
It is notable that a significant number of medical associations and insurers filed amicus briefs in this appeal. It is likely that both medical associations and insurers will monitor whether the removal of the requirement that plaintiffs file a certificate of merit with medical malpractice lawsuits results in an increase in the filing of such claims.
