WA Supreme Court: No 90 Day Notice for Medical Malpractice Cases
The 90 day notice of intent to sue has been found to be unconstitutional by the Washington Supreme Court. Those who've been following the court as of late probably saw this coming, but the court having just recently struck down the requirement that medical malpractice lawsuit be filed alongside a certificate of merit. The crux of striking down the certificate of merit requirement was that it violated the separation of powers between the legislature and the courts.
In doing with requirement, the court applied the same argument:
Respondents attempt to distinguish Putman, contending that the certificate of merit requirement changes the procedures for filing pleadings in a lawsuit, while the notice requirement does not impose any pleading requirements. But the analysis of Putman is not so limited. There, we held that the addition of legislative requirements to the court rules for filing suit was unconstitutional. We based our conclusion on the fact that the statutory certificate of merit requirement involved procedures and not substantive rights "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." Putman, 166 Wn.2d at 984-85 (citation omitted).
We make the same holding here. The conflict between RCW 7.70.100(1) and CR 3(a) cannot be harmonized and both cannot be given effect. If a statute and a court rule cannot be harmonized, the court rule will generally prevail in procedural matters and the statute in substantive matters. "Substantive law `creates, defines, and regulates primary rights,' while procedures involve the `operations of the courts by which substantive law, rights, and remedies are effectuated.'" Putman, 166 Wn.2d at 984 (internal quotation marks omitted) (quoting Jensen, 158 Wn.2d at 394). Like RCW 7.70.150, RCW 7.70.100(1) does not address the primary rights of either party and deals only with the procedures to effectuate those rights. Therefore, RCW 7.70.100(1) involves procedural law and will not prevail over CR 3(a).
Congratulations to Jerry Pearson and the WSAJ Amicus Committee for their win.
Those paying attention have to wonder if the court will tackle the 60 day notice requirement for suits against governmental entities in the next go-round as well. The logic seems to dictate that any pre-filing procedural requirement is a violation of the separation of powers.
Also an open question at this point is whether notice against governmental entities is still in play in medical practices. The statutes for the 90 day notice and the 60 day notice were recently harmonized to make only the medical malpractice 90 day notice of intent to sue in play in situations where you have a medical malpractice suit against governmental entity. Now that the 90 day notice is kaput, it's an open question as to whether the 60 day notice is now in play again.