Are the Medical Malpractice Act’s 90-Day Notice of Intent to Sue (Rcw 7.70.100(1)) and Statute of Repose (Rcw 4.16.350) Unconstitutional?

Ron Perey
Perey Law Group, PLLC1

In what was big news for Washington State medical malpractice law, on Sept.17, 2009, the Washington Supreme Court struck down the Certificate of Merit requirement for medical malpractice cases, which the Legislature had adopted as part of the Medical Malpractice, Patient Safety, and Health Care Liability Reform Act of 2006, SSHB 2292,2 codified as RCW Wn. The case was Putman v. Wenatchee Valley Medical Center, 2d 974, 216 P.3d 374 (2009) (Owens, J., writing for majority, joined by Alexander, C.J., C. Johnson, Sanders, Chambers, Fairhurst, Stephens, J.J.; Madsen, J., concurring in part, joined by J. Johnson, J.)

The Court concluded unanimously that the statute violated the separation of powers doctrine and, by a 7-2 margin, the right of access to courts. While the Court’s holdings made it unnecessary to address appellant Putman’s other arguments, listing them may be useful to practitioners mounting challenges to other aspects of the Medical Malpractice Act, RCW Chapter 7.70, specifically; the notice of intent to sue in RCW 7.70.100(1) and the eight-year statute of repose reenacted in RCW 4.16.350.

Perey Law Group’s Take

We believe the same arguments for unconstitutionality as in Putman apply to RCW 7.70.100(1); and some may apply to make the eight-year statute of repose (RCW 4.16.350) unconstitutional. The glaring flaw in the reenactment of the statute of repose is that the Legislature’s restated rationale makes it no more constitutional than in the case that overturned the very same statute: DeYoung v. Providence Medical Center, 136 Wn.2d 136, 960 P.2d 919 (1998)(Madsen, J., writing; Dolliver, Smith, Johnson, and Sanders, JJ., concurring; Alexander, J., dissenting)3

Notice of Intent to Sue

Whether the notice of intent to sue violates equal protection is before the Washington Supreme Court in Waples v. Yi, No. 82142-9, on review from 146 Wn. App. 54 (2008). The parties in Waples have framed the issue as follows: “Whether RCW 7.70.100(1), which requires medical malpractice plaintiffs to notify the defendant of the claim 90 days before filing suit, violates equal protection principles.”

The statute requiring a 90-day notice of intent to sue violates the separation of powers doctrine for the same reasons as the certificate of merit in Putman. The notice of intent, like the certificate of merit, is a procedural rule. See Putman, at 984-85.4 Only the Supreme Court can create procedural rules. Id. at 980. In this regard, RCW 2.04.190 provides that the Supreme Court (not the Legislature) “shall have the power to prescribe … the mode and manner … of giving notice and serving writs and process of all kinds … and generally to prescribe by rule … the kind and character of the entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the … superior courts … of the state.”

In addition, the notice of intent limits open access to courts. See id. at 979. The Washington Constitution provides that “Justice in all cases shall be administered openly, and without unnecessary delay.” Const. art. I, § 10. As the majority stated in Putman:

The people have a right of access to courts; indeed, it is “the bedrock foundation upon which rest all the people’s rights and obligations.” This right of access to courts “includes the right of discovery authorized by the civil rules.” As we have said before, “[i]t is common legal knowledge that extensive discovery is necessary to effectively pursue either a plaintiff’s claim or a defendant’s defense.”

Putman, at 979 (quoting John Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 780, 782, 819 P.2d 370 (1991)). The notice of intent violates the open courts guarantee because it results in delayed filing, delayed discovery which might reveal additional defendants, and delayed compensation. The notice of intent requires injured plaintiffs to wait 3 months—a quarter of a year—while incurring further expenses and even death, in turn reducing claims to the estate as well as damages.

On this issue, the WSAJ Foundation argued in Putman that the open courts provision also preserves citizens’ entitlement to the right to a remedy for a wrong suffered. See In re Marriage of King, 162 Wn.2d 378, 388, 174 P.3d 659 (2007). The WSAJ Foundation proposed a “compelling interest” test for violation of the right to a remedy for a wrong: the Legislature cannot extinguish or substantially burden such a remedy (i.e., the right to bring a medical malpractice claim) unless an adequate substitute remedy replaces it (quid pro quo), or there is an overwhelming public necessity for extinguishing or burdening the remedy and the Legislature cannot show an alternative method of meeting the public necessity.

Special Law

Apart from separation of powers, we believe the strongest argument against the notice of intent is that it is a special law favoring medical malpractice defendants. This theory was successful in the Oklahoma Supreme Court’s opinion in Zeier v. Zimmer, Inc., 2006 Okla. 98, 152 P.3d 861, 873 (2006), declaring a legislatively-created affidavit of merit to be unconstitutional and void.

Like Oklahoma’s Constitution, the Washington Constitution prohibits special laws in the 18 subparts of Art. II, § 28. Those provisions support individual constitutional rights including equal protection and due process. Ms. Putman argued that the certificate of merit requirement constituted a special law benefiting medical malpractice defendants, in violation of subsections 28(6), (10), and (17). In crafting the notice of intent (as well as the statute of repose addressed below), the Washington Legislature singled out doctors and hospitals for special legal treatment, changing hundreds of years of precedent. These requirements apply to no defendants except health care providers – not to product manufacturers, barbers, architects, lawyers, pharmaceutical companies, airline pilots, politicians, plumbers, electricians, truck drivers, or automobile operators.

Privileges and Immunities/Equal Protection

Washington’s privileges and immunities guarantee, Const. art. I, § 12, and the federal equal protection guarantee, U.S. Const. amend. XIV, § 1, require that “persons similarly situated with respect to the legitimate purpose of the law” receive like treatment. State v. Coria, 120 Wn.2d 156, 169, 839 P.2d 890 (1992). Washington courts “analyze equal protection challenges under one of three standards of review: strict scrutiny, intermediate scrutiny, or rational basis.” State v. Berrier, 110 Wn.App. 639, 648, 41 P.3d 1198 (2002) (citing State v. Manussier, 129 Wn.2d 652, 672-73, 921 P.2d 473 (1996)). The appropriate level of scrutiny depends on whether the statute draws a suspect or semi-suspect classification or implicates a fundamental right; if neither, then the court will inquire whether the legislation bears a rational relationship to a legitimate governmental purpose. Andersen v. King County, 158 Wash.2d 1, 18-19, 138 P.3d 963 (2006) (citing Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); State v. Harner, 153 Wash.2d 228, 236, 103 P.3d 738, 742 (2004)). For reasons discussed above and in the Putman briefs, the notice of intent and statute of repose satisfy neither strict scrutiny nor even the most deferential rational basis test. See DeYoung v. Providence Medical Center, 136 Wn.2d 136, 960 P.2d 919 (1998)(discussed below).

Due Process

Both the Washington and U.S. Constitutions guarantee due process, Const. art. I, § 3; U.S. Const. amend. XIV, § 1, and confer equivalent protections. In re Personal Restraint of Dyer, 143 Wn.2d 384, 394, 20 P.3d 907 (2001). While due process guarantees fair procedures, it also embraces “a substantive component that bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’” Zinermon v. Burch, 494 U.S. 113, 125 (1990)(citation omitted). The notice of intent and statute of repose are arbitrary and wrongful, forcing plaintiffs to delay their cases with all the consequences described above: delayed lawsuits, delayed discovery that might reveal additional defendants, delayed compensation, reduced claims and damages. Substantive due process claims are evaluated under the same criteria used for equal protection. See Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 220-22, 143 P.3d 571 (2006).

Statute of Repose

As part of the Medical Malpractice Act, the Legislature reinstated RCW 4.16.350, the eight-year statute of repose previously held unconstitutional in DeYoung. The Legislature did not change a single word in the previous statute. But in response to DeYoung’s criticism that the relationship between the statute and state interests was too remote, the Legislature simply articulated a new rationale for the statute:

The purpose of this section [section 301] and section 302 of this act is to respond to the court’s decision in DeYoung v. Providence Medical Center, 136 Wn.2d 136 (1998), by expressly stating the legislature’s rationale for the eight-year statute of repose in RCW 4.16.350.

The legislature recognizes that the eight-year statute of repose alone may not solve the crisis in the medical insurance industry. However, to the extent that the eight- year statute of repose has an effect on medical malpractice insurance, that effect will tend to reduce rather than increase the cost of malpractice insurance.

Whether or not the statute of repose has the actual effect of reducing insurance costs, the legislature finds it will provide protection against claims, however few, that are stale, based on untrustworthy evidence, or that place undue burdens on defendants.

In accordance with the court’s opinion in DeYoung, the legislature further finds that compelling even one defendant to answer a stale claim is a substantial wrong, and setting an outer limit to the operation of the discovery rule is an appropriate aim.

The legislature further finds that an eight-year statute of repose is a reasonable time period in light of the need to balance the interests of injured plaintiffs and the health care industry.

The legislature intends to reenact RCW 4.16.350 with respect to the eight-year statute of repose and specifically set forth for the court the legislature’s legitimate rationale for adopting the eight-year statute of repose. The legislature further intends that the eight-year statute of repose reenacted by section 302 of this act be applied to actions commenced on or after the effective date of this section [June 7, 2006].

Laws of 2006, ch. 8, § 301 (SSHB 2292).

The Legislature’s reasons for re-imposing the statute of repose overlook overwhelming evidence to the contrary, including material before the Legislature discussed in DeYoung, at 148- 49. Widespread research has refuted the myth that a statute of repose will tend to reduce the cost of malpractice insurance, protect against meritless claims, and save “even one defendant” from answering a stale claim. Simply saying so does not convert an unconstitutional statute into a constitutional one, because, as the Court stated in DeYoung:

A repose provision affecting so few claims and involving such a small amount of what insurers were paying could not possibly have any meaningful impact on the medical malpractice insurance industry, much less when only claims of the type subject to Washington’s eight-year repose provision are considered. The eight-year statute of repose could not avert or resolve a malpractice insurance crisis.

DeYoung, at 149. “The relationship between the goal of alleviating any medical insurance crisis and the class of persons affected by the eight-year statute of repose is too attenuated to survive rational basis scrutiny. … [T]he minuscule number of claims subject to the repose provision renders the relationship of the classification too attenuated to that goal.” Id. at 149-50.

The Court has already rejected the Legislature’s assertions in DeYoung. The Legislature had nothing new when it re-enacted the statute of repose. The Legislature simply substituted its own legal conclusion for the Court’s, thereby violating the separation of powers doctrine: “any determination calling for a legal conclusion is constitutionally within the province of the judiciary, not the Legislature. Any legislative attempt to mandate legal conclusions would violate the separation of powers.” Sofie v. Fibreboard Corp., 112 Wn.2d 636, 654,771 P.2d 711 (1989).

DeYoung did not address appellant’s argument that the eight-year repose provision violates access to the courts. Id. at 150. Because of Putman, open access to courts would now be a strong additional theory in challenging this statute. See Putman, at 979; see also Putman Appellant’s and WSAJ Foundation Amicus briefs.

A Final Note

Challenging a statute on constitutional grounds is not an easy or inexpensive undertaking. But as defenders of medical malpractice victims’ rights, we can work together when the health care and insurance industries use these statutes as weapons against our clients.


1 Ron Perey practices at the Perey Law Group in Seattle representing victims in serious injury and medical malpractice cases. The appellate briefs in Putman, and copies of the sample forms for the notice of intent to sue (RCW 7.70.100(1)) and waiver of voluntary arbitration (RCW 7.70A.020) may be obtained from the Perey Law Group, 206-443-7600, email, or from WSAJ.

2 SSHB 2292, Laws of 2006, chapter 8, became law on June 7, 2006, after closed-door negotiations between representatives of the Washington State Medical Association, the Washington State Trial Lawyers Association, Physicians Insurance Company and other medical malpractice insurers, the Insurance Commissioner and the Governor’s office, and certain legislators. There is virtually no legislative history because there was little legislative debate or deliberation. RCW 7.70.100(1) was amended by Laws of 2007, chapter 119 § 1, eff. July 22, 2007, to specify that service by mail satisfies the statute.

3 For full arguments, see Putman’s and WSAJ briefs: 2008 WL 5484279, Putman’s Opening Brief (Apr. 4, 2008); 2008 WL 5484277, Putman’s Reply Brief (Jul. 14, 2008); 2009 WL 1640771, Putman’s Reply to Respondents’ Supplemental Brief (Jan. 12, 2009); 2009 WL 1640780, Brief of Amicus Curiae Washington State Association for Justice Foundation (Jan. 26, 2009); 2009 WL 1640768, Putman’s Answer to WSAJ Amicus Brief and Amicus Brief of the Washington State Medical Association, et al. (Feb. 17, 2009); 2009 WL 1640774, Errata Sheet for Brief of Amicus Curiae WSAJ Foundation (Feb. 4, 2009); 2009 WL 1640775, Putman’s Statement of Additional Authorities (Jan. 29, 2009).

4 “We hold that RCW 7.70.150 is procedural 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; it deals only with the procedures to effectuate those rights. Therefore, it is a procedural law and will not prevail over the conflicting court rules.” Id. at 984-85 (citation and footnote omitted).