(Medical Malpractice – Part 8 in a Several Part Series)

(This is the 8th part in a multiple part series pertaining to Medical Malpractice Law in Washington State. To read part one click here. To read part two click here. To read part three click here. To read part four click here. To read part five click here. To read part six click here. To read part seven click here.)

Constitutional Issues

In 2006 the legislature enacted RCW 4.16.190(2), which eliminated RCW 4.16.190’s tolling statute for minors’ medical malpractice claims. In Schroeder v. Weighall, 179 Wn.2d 566, 316 P.3d 482 (2014), the Court struck down the provision as being violative of our state constitution’s privileges and immunities clause.

In 2006 the legislature enacted RCW. 7.70.150 and RCW 7.70.100(1). RCW 7.70.150 required a medical malpractice plaintiff, at the time of commencing a case, to file a certificate of merit signed by a qualified expert witness attesting that “…based on the information known at the time of executing the certificate of merit, that there is a reasonable probability that the defendant’s conduct did not follow the accepted standard of care required to be exercised by the defendant.” In Putnam vs. Wenatchee Valley Medical Center, 166 Wn.2d 974, 977-985, 216 P.3d 374, (2009), the Court found that RCW 7.70.150 unconstitutionally burdened the right of access to the courts and violated the Washington constitution’s implied separation of powers clause. In Waples v. Yi. 169 Wn.2d 152,161, 234 P.3d 187 (2010), the Court found RCW 7.70.100(1)’s requirement that medical malpractice plaintiffs give defendants 90 days’ notice of their intention to sue unconstitutional, also applying a separation of powers analysis. (As discussed supra, the Court later found RCW 7.70.100(1)’s 90 days notice requirement constitutional as applied to the State and to municipal corporations. But note, RCW 7.70.100(1)’s 90 days’ requirement was amended and withdrawn from the statute in 2013.)

In 1976 the legislature enacted an eight year statute of repose for medical malpractice claims, exclusive of those involving fraud, intentional concealment or an undiscovered foreign body. RCW 4.16.350(3). The repose was intended to extinguish all claims eight years after the act or omission causing injury occurred. The 1976 repose provision was struck down as unconstitutional based on the privileges and immunities clause of the Washington Constitution in DeYoung v. Providence Medical Center, 136 Wn.2d 136, 150, 960 P.2d 136 (1998). In 2006 the legislature re-enacted the repose provision. In Unruh v. Caccihiotti, 172 Wn.2d 98, 640, 257 P.3d 631 (2011), the Court sidestepped the issue of the constitutionality of the re-enacted repose provision by holding that the 2006 enacted provision did not apply prospectively and that no claim could be barred by that provision until 2014.

In the next post, we will address some of the particular aspects of negligence claims that may arise in the context of medical malpractice lawsuits.

(This article was written by Mark Johnson and Michael Sprangers. Mark and Michael’s practice focuses on medical malpractice, legal malpractice, and serious personal injury lawsuits. Their law firm Johnson Flora Sprangers PLLC is located in the Belltown neighborhood of Seattle, Washington.)  

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