Medical Malpractice Tolling Statute Ruled Unconstitutional

When Jaryd was nine years old he suffered from headaches, nausea, dizziness, weakness in his legs, and double vision. A doctor reviewed an MRI of Jaryd and found it to be normal.

Jaryd had another MRI when he was 17. This time the radiologist who reviewed the MRI found an Arnold Chiari Type I Malformation, a condition in which brain tissue protrudes into the spinal canal. The radiologist also reviewed the 2001 MRI and concluded that the condition had been present to the same extent at that time.


The day before his 19th birthday Jaryd filed a lawsuit against the doctor who had reviewed the 2001 MRI.  The doctor moved to dismiss under the statute of limitations.


In Washington, a statute of limitations is tolled while the claimant is a minor. However, a medical malpractice statute eliminated tolling for minors in medical malpractice claims. The Washington Supreme Court ruled that the anti-tolling statute was constitutional under the Washington state constitution.[1]


The Washington constitution provides that no statute may grant “privileges or immunities which upon the same terms shall not equally belong to all citizens.”[2] Washington courts construe this provision as “substantially similar” to the federal equal protection clause, but as more protective than the federal equal protection clause and requiring a very different analysis in certain situations.


The Washington state constitution is particularly concerned with the “undue political influence” exercised by a privileged few.  The Washington constitution, unlike the federal equal protection clause, applies to special interest legislation-laws that confer a benefit on a privileged or influential minority.


The medical malpractice statute conferred the benefit of limited liability – an immunity from suits pursued by certain plaintiffs.  The defendants argued that the medical malpractice statute serves the important purpose of limiting stale medical malpractice claims.  They also argued that stale claims are particularly burdensome in the medical malpractice context, where defendants are subject to rapidly changing standards of care.


The Court noted that the medical malpractice statutory provision in question was not aimed at stale claims generally, but at best addressed to stale claims arising from medical malpractice injuries to minors. The statute did not address stale claims brought by someone unable to sue at the time of injury for any reason other than minority.


The defendants argued that parents or guardians may, and often do, sue on an injured child’s behalf. The Court found that this argument directly conflicts with the assertion that the minority tolling statute will eliminate so many medical malpractice claims that insurance rates will drop as a result. “If the statute is to be justified on the basis that it will greatly reduce medical malpractice claims, it cannot also be justified on the ground that it will not prevent very many plaintiffs from having their day in court.”


The Court noted that other states have concluded that similar medical malpractice statutes “have the greatest impact on children in the foster care system, children whose parents are themselves minors, and children whose parents are simply unconcerned.”


The decision was 7-2. The dissent found that there was reasonable grounds for the medical malpractice anti-tolling provisions. The dissent concluded that the legislature properly considered the differences between minors and adults, as well as the special circumstances facing medical malpractice defendants. According to the dissent, the “statute is rationally related to the legitimate state objective of decreasing medical malpractice costs and reducing the number of stale claims.”


While the Court struck down the statute – and now minors do not have to bring a medical malpractice claim within three years of the medical service that caused injury – it is usually unwise in the extreme to delay. Calculating the exact date of the statute of limitations can be tricky, especially in medical malpractice claims. It is also very important to begin investigation of any personal injury claim early.


You should consult with an attorney at your nearest convenience if you believe you may have a medical malpractice claim.


By personal injury attorney Travis Scott Eller


[1] Schroeder v. Weighall, ____ Wn. 2d ____ (No. 87207-4 January 16, 2014).

[2] Article I, section 12 of the Washington Constitution.

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