Our law firm was not involved in the personal injury lawsuit
described in this article.
Washington medical malpractice statutes had required an injury claimant to both obtain a certificate of merit from an expert before filing suit and to give 90 days notice to a health care provider before filing suit.
Last year the Washington Supreme Court struck down the notice requirement as an unconstitutional violation of the separation of powers.[1]
The Court noted that it had held in Putman that the judicial branch has the inherent power to promulgate rules for its practice. Therefore, if a statute appears to conflict with a court rule the courts 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.
The Court held that the requiring notice does not change the substantive rights of the parties, but adds an additional step for commencing a suit to those required by court rules. And, failure to provide the notice results in a lawsuit’s dismissal even where the complaint was properly filed and served pursuant to court rules.
Because the medical malpractice statue and court rules cannot be harmonized and both cannot be given effect the statutory notice requirement is unconstitutional.
[1] Putman v. Wenatchee Valley Med. Ctr., 166 Wn.2d 974, 216 P.3d 374 (2009).