Date: 09-17-2009

Case Style: Kimme Putnam v. Wenatchee Valley Medical Center, P.S.

Case Number: 80888-1

Judge: Owens

Court: Washington Supreme Court on appeal from the Superior Court of Chelan County

Plaintiff's Attorney: Ron Perey, Perey Law Group, Seattle, Washington

Douglas T Weinmaster, Perey Law Group, Seattle, Washington

Carla Tachau Lawrence, Seattle, Washington

Robert S. Peck, Center for Constitutional Litigation, P.C., Washington, DC

Defendant's Attorney: Sherry Hemming Rogers, Lee Smart, Seattle, Washington

Michael Neil Budelsky, Reed McClure, Seattle, Washington

Pamela A. Okano, Reed McClure, Seattle, Washington

Description: Appellant Kimme Putman sued respondents for negligently failing

to diagnose her ovarian cancer. The trial judge dismissed her lawsuit because she

failed to file a certificate of merit from a medical expert, as required for medical

malpractice lawsuits under RCW 7.70.150. Putman challenges the constitutionality of

the certificate of merit requirement on a number of grounds. We hold that RCW

7.70.150 is unconstitutional because it unduly burdens the right of access to courts and violates the separation of powers.1

FACTS

In 2007, Putman filed a lawsuit against Wenatchee Valley Medical Center and

several of its employees, alleging that they negligently failed to diagnose her ovarian

cancer in 2001 and 2002. She alleges that the delay in her diagnosis until 2005 caused

her to miss the opportunity to undergo early treatment, and that she now has a 40

percent likelihood of surviving the next five years. The trial court dismissed Putman's

claims because she failed to file a certificate of merit as required by the state's medical

malpractice litigation statute, RCW 7.70.150. The trial court also held that the

certificate of merit requirement is constitutional. Putman appealed the ruling directly

to this court, alleging that RCW 7.70.150 is unconstitutional because, inter alia, it

unduly burdens the right of access to courts and violates the separation of powers.

ISSUES

1 Because we find that the certificate of merit requirement unduly burdens the right of access to courts and violates the separation of powers, we do not reach Putman's arguments that the certificate of merit requirement (1) violates the privileges and immunities clause of the Washington State Constitution and the equal protection clause of the United States Constitution, (2) violates the prohibition on special laws in the Washington State Constitution, and (3) violates the due process clause of the United States Constitution.

Putman v. Wenatchee Valley Med. Ctr., P.S. 80888-1

1. Does RCW 7.70.150 unduly burden the right of access to courts?

2. Does RCW 7.70.150 irreconcilably conflict with procedural court rules and

therefore violate the separation of powers?

STANDARD OF REVIEW

We review the constitutionality of a statute de novo. State v. Abrams, 163

Wn.2d 277, 282, 178 P.3d 1021 (2008).

ANALYSIS

I. Does RCW 7.70.150 Unduly Burden the Right of Access to Courts?

"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

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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.

II. Does RCW 7.70.150 Violate the Separation of Powers?

Putman contends that RCW 7.70.150's certificate of merit requirement violates

the separation of powers because it conflicts with CR 8 and 11 regarding pleading

requirements and thereby encroaches on the judiciary's power to set court rules.

Wenatchee Valley Medical Center argues that RCW 7.70.150 does not conflict with

CR 8 and 11 and that, even if it did, CR 8 and 11 do not apply because medical

malpractice claims are special proceedings. See CR 81(a) (exempting special

proceedings from civil rules).

The Washington State Constitution does not contain a formal separation of

powers clause, but "'the very division of our government into different branches has

been presumed throughout our state's history to give rise to a vital separation of

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powers doctrine.'" Brown v. Owen, 165 Wn.2d 706, 718, 206 P.3d 310 (2009)

(quoting Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994)). The doctrine

of separation of powers divides power into three co-equal branches of government:

executive, legislative, and judicial. City of Fircrest v. Jensen, 158 Wn.2d 384, 393-94,

143 P.3d 776 (2006), cert. denied, 549 U.S. 1254 (2007). The doctrine "'does not

depend on the branches of government being hermetically sealed off from one

another,'" but ensures "that the fundamental functions of each branch remain

inviolate." Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 504, 198 P.3d 1021

(2009) (quoting Carrick, 125 Wn.2d at 135). If "'the activity of one branch threatens

the independence or integrity or invades the prerogatives of another,'" it violates the

separation of powers. Fircrest, 158 Wn.2d at 394 (internal quotation marks omitted)

(quoting Moreno, 147 Wn.2d at 505-06).

Some fundamental functions are within the inherent power of the judicial

branch, including the power to promulgate rules for its practice. Id.; In re Disbarment

of Bruen, 102 Wash. 472, 476, 172 P. 1152 (1918). If a statute appears to conflict

with a court rule, this court will first attempt to harmonize them and give effect to

both, but if they cannot be harmonized, the court rule will prevail in procedural

matters and the statute will prevail in substantive matters. Fircrest, 158 Wn.2d at 394.

Thus, this court must determine whether RCW 7.70.150 can be harmonized

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with this court's rules. If it cannot, the court rule will prevail under the separation of

powers doctrine if RCW 7.70.150 involves fundamentally procedural matters. But

first, the court must determine if the civil rules even apply to medical malpractice

proceedings or if, instead, medical malpractice proceedings are now "special

proceedings" and therefore exempt from the civil rules.

A. Are medical malpractice proceedings special proceedings and therefore exempt from the civil rules?

Wenatchee Valley Medical Center contends that medical malpractice

proceedings are special proceedings and therefore exempt from CR 8 and 11 under CR

81(a), which states that "[e]xcept where inconsistent with rules or statutes applicable

to special proceedings, these rules shall govern all civil proceedings." (Emphasis

added.) The term "special proceedings" is not defined within the rule. This court has

not set out a rule for determining whether a proceeding is ordinary or special, but

Washington courts have identified certain actions as special proceedings, including

lien foreclosures, sexually violent predator petitions, garnishment, will contests, and

unlawful detainer actions.2

Wenatchee Valley Medical Center argues that medical malpractice proceedings

2 See Christensen v. Ellsworth, 162 Wn.2d 365, 173 P.3d 228 (2007) (unlawful detainer actions); Zesbaugh, Inc. v. Gen. Steel Fabricating, Inc., 95 Wn.2d 600, 627 P.2d 1321 (1981) (garnishments); In re Estate of Kordon, 157 Wn.2d 206, 137 P.3d 16 (2006) (will contests); In re Det. of Aguilar, 77 Wn. App. 596, 892 P.2d 1091 (1995) (sexually violent predator petitions); Pac. Erectors, Inc. v. Gall Landau Young Constr. Co., 62 Wn. App. 158, 813 P.2d 1243 (1991) (lien claims).

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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

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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).

B. Does RCW 7.70.150 conflict with CR 8 and 11?

RCW 7.70.150 requires plaintiffs in medical malpractice actions to file a

certificate of merit with the pleadings.3 The certificate of merit must contain a

3 The first two subsections of RCW 7.70.150 state: (1) In an action against an individual health care provider under this chapter for personal injury or wrongful death in which the injury is alleged to have been caused by an act or omission that violates the accepted standard of care, the plaintiff must file a certificate of merit at the time of commencing the action. If the action is commenced within forty-five days prior to the expiration of the applicable statute of limitations, the plaintiff must file the certificate of merit no later than forty-five days after commencing the action. (2) The certificate of merit must be executed by a health care provider who meets the qualifications of an expert in the action. If there is more than one defendant in the action, the person commencing the action must file a certificate of merit for each defendant.

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statement from an expert 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).

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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C. Does the conflict between RCW 7.70.150 and CR 8 and 11 involve procedures or substantive law?

As noted above, if a statute appears to conflict with a court rule, this court will

first attempt to harmonize them and give effect to both. Fircrest, 158 Wn.2d at 394.

If they cannot be harmonized, the court rule will prevail in procedural matters and the

statute will prevail 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.'" Id. (quoting State v.

Smith, 84 Wn.2d 498, 501, 527 P.2d 674 (1974)).

Several other state supreme courts have invalidated certificate and affidavit

requirements for medical malpractice litigation, holding that they conflict with court

rules regarding the procedures for filing lawsuits and therefore violate the separation

of powers. See, e.g., Summerville v. Thrower, 369 Ark. 231, 239, 253 S.W.3d 415

(2007) (invalidating a statute that required medical malpractice plaintiffs to submit an

affidavit of reasonable cause from a medical expert within 30 days of filing); Wimley

v. Reid, 991 So. 2d 135, 138 (Miss. 2008) (invalidating a statute that required the

plaintiff's attorney to submit a certificate that he or she has consulted a medical expert

prior to filing); Hiatt v. S. Health Facilities, Inc., 68 Ohio St. 3d 236, 237-38, 1994-

Ohio-294, 626 N.E.2d 71 (invalidating a statute requiring the plaintiff's attorney in a

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medical malpractice action to submit an affidavit attesting that he or she had requested

a copy of the medical records). But see McAlister v. Schick, 147 Ill. 2d 84, 94, 588

N.E.2d 1151, 167 Ill. Dec. 1021 (1992) (upholding an affidavit statute, holding that the

statute fell within the legislature's power to enact laws "to determine and effectuate

public policy" and did not impede court's ability to control its procedures).

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.4

* * *

See: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=808881MAJ

Outcome: RCW 7.70.150 unduly burdens the right of medical malpractice plaintiffs to

conduct discovery and, therefore, violates their right to access courts. In addition,

RCW 7.70.150 changes the procedures for filing pleadings in a lawsuit, thereby jeopardizing the court's power to set court procedures. When the activity of one

branch invades the prerogatives of another, there is a violation of the doctrine of

separation of powers. The court must strike down this law because it violates the right

of access to courts and conflicts with the judiciary's inherent power to set court

procedures. We reverse the trial court's dismissal and remand for further proceedings.

Plaintiff's Experts:

Defendant's Experts:

Comments: