WA Legal Roundup - SPECIAL EDITION: CERTIFICATES OF MERIT UNCONSTITUTIONAL!
Putnam filed suit based on failure to diagnose, but did not file a certificate of merit.
The WA Supreme Court held that the requirement is unconstitutional. The opinion is short. Accordingly, you will read most of it, as I cannot say it better:
"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803). 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." John Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 780, 819 P.2d 370 (1991). This right of access to courts "includes the right of discovery authorized by the civil rules." Id. 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." Id. at 782.
Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to courts. Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims. Id. Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed. Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts. It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people. Id. at 780. Accordingly, we must strike down this law.
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Wenatchee Valley Medical Center argues that medical malpractice proceedings are "special proceedings" because the legislature has set out statutory requirements for filing medical malpractice cases. This argument is unsustainable because it places no limits on the ability of the legislature to determine procedural rules. Under this standard, the legislature could reclassify any common law action as a special proceeding by passing statutes regulating its procedures, thereby eroding this court's power to determine its own court rules.
A more appropriate definition of special proceedings would include only those proceedings created or completely transformed by the legislature. This would include actions unknown to common law (such as attachment, mandamus, or certiorari), as well as those where the legislature has exercised its police power and entirely changed the remedies available (such as the workers' compensation system). Other states have adopted similar standards within their civil codes, typically defining an ordinary action as one based in common law and a special proceeding as any other action. See, e.g., Tide Water Associated Oil Co. v. Superior Court, 43 Cal. 2d 815, 822, 279 P.2d 35 (1955); Dow v. Lillie, 26 N.D. 512, 520, 144 N.W. 1082 (1914). This standard protects the separation of powers because it preserves this court's abilities to set its own court rules for traditional actions but allows the legislature to set rules for newly created proceedings.
Medical malpractice claims are fundamentally negligence claims, rooted in the common law tradition. See, e.g., Wright v. Cent. Du Page Hosp. Ass'n, 63 Ill. 2d 313, 327, 347 N.E.2d 736 (1976). While the legislature has made some changes to medical malpractice claims, it has not extinguished the common law action and replaced it with a statutory remedy. Cf. Lane v. Dep't of Labor & Indus., 21 Wn.2d 420, 428, 151 P.2d 440 (1944) (holding that the workers' compensation act "took away from the workman his common-law right of action for negligence" and "[i]n its place it provided for industrial insurance," thereby "creating the right of the workman to compensation" from the workers' compensation fund). Therefore, under the standard described above, medical malpractice suits do not qualify as special proceedings and are not exempt from the civil rules under CR 81(a).
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This requirement directly conflicts with CR 11, which states that attorneys do not have to verify pleadings in medical malpractice actions, as well as CR 8, which details our system of notice pleading. First, RCW 7.70.150 conflicts with CR 11 because it requires the attorney to submit additional verification of the pleadings -- a requirement that CR 11 explicitly limits to "dissolution of marriage, separation, declarations concerning the validity of a marriage, custody, and [related modifications]." CR 11(a). Second, RCW 7.70.150 conflicts with CR 8 and our system of notice pleading, which requires only "a short and plain statement of the claim" and a demand for relief in order to file a lawsuit. CR 8(a). Under notice pleading, plaintiffs use the discovery process to uncover the evidence necessary to pursue their claims. Doe, 117 Wn.2d at 782. The certificate of merit requirement essentially requires plaintiffs to submit evidence supporting their claims before they even have an opportunity to conduct discovery and obtain such evidence. For that reason, the certificate of merit requirement fundamentally conflicts with the civil rules regarding notice pleading -- one of the primary components of our justice system.
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We hold that RCW 7.70.150 is procedural because it addresses how to file a claim to enforce a right provided by law. See, e.g., Hiatt, 68 Ohio St. 3d at 238 ("Since the conflict involves the form and content of the complaint to initiate a medical malpractice case, it is a procedural matter."). 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.
I cannot stress how much of a win this is for patients rights. Medical negligence claims are one of the hardest to prove because it involves judgement of a doctor, often in complex situations. Many times, if a hospital or doctor knows they screwed up, they will impede your pre-trial discovery, hindering your ability to obtain a certificate of merit. This removes that roadblock and allows the case to move forward on an even keel with all other negligence claims. It removes a hoop that was a bar to so many negligence claims, regardless of whether the provider violated the standard of care. This will allow people to have their day in court, and to be heard.