By personal injury lawyer Scott Eller

A 2006 law required persons in Washington alleging injury from medical malpractice to file with the complaint a certificate of merit signed by an expert.  In a decision announced a few months ago the Washington Supreme Court declared the law unconstitutional holding that the statute unduly burdens the right of access to courts and violates the separation of powers. [1]

The Court held that requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to courts because it is through the discovery process that plaintiffs uncover the evidence necessary to pursue their claims. “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.”[2]

The Court also held that the statute requiring a certificate of merit was in conflict with court rules, and therefore violated the separation of powers.

The Court noted that the established rule is that “[i]f 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.[3]

The medical malpractice defendant argued that a medical malpractice claim is a special proceeding and therefore exempt from court rules.  Therefore the court rules in question did not apply and there is no conflict.

The Court disagreed that a medical malpractice claim is a special proceeding.  The Court noted that although special proceedings have not be precisely defined under Washington law, an appropriate rule given case law precedent “would include only those proceedings created or completely transformed by the legislature. This would include actions unknown to common law…Medical malpractice claims are fundamentally negligence claims, rooted in the common law tradition.”[4]

The Court ruled that the certification 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 the Washington system of notice pleading.  The Court also noted that 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.

[2] Id. at 377.

[3] Id. citing Fircrest v. Jensen, 158 Wash.2d at 394, 143 P.3d 776(2006).

[4] Id. at 378.

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