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Victory for Perey Law Group in Washington Supreme Court Case: Certificate of Merit Statute Ruled Unconstitutional

Posted by: Doug Weinmaster
September 17, 2009
Topic: Medical Malpractice

CONSTITUTIONAL RIGHTS OF MEDICAL MALPRACTICE VICTIMS PROTECTED IN WASHINGTON SUPREME COURT DECISION

Perey Law Group - (Seattle) Thursday, September 17, 2009. The nine members of the Washington State Supreme Court today struck down an onerous requirement in medical negligence lawsuits - the "certificate of merit" - which the Washington State Legislature, in 2006, imposed on patients injured by medical malpractice, even before they filed suit. Kimme Putman, the appellant in the case before the Court, was injured by the failure of her doctors at the Wenatchee Valley Medical Clinic in Chelan County, Washington to promptly diagnose her ovarian cancer. Ms. Putman, represented by Ron Perey, Doug Weinmaster, and Carla Tachau Lawrence of the Perey Law Group, PLLC, Seattle, Washington, filed a medical negligence action against the Clinic.

The trial court dismissed a portion of Ms. Putman's claim because she did not file a certificate of merit regarding a Clinic employee who was not a defendant in her lawsuit. Ms. Putman appealed directly to the Washington State Supreme Court. Robert Peck, President of the Center for Constitutional Litigation, PC, in Washington, D.C., was co-counsel on the appeal. The Perey Law Group represents victims of medical negligence such as Ms. Putman, including victims of catastrophic injury or death.

Under the challenged statute, RCW 7.70.150, injured patients had to obtain a certificate of merit from a medical expert in the same field as each defendant health care provider, stating there is a reasonable probability that the defendant was negligent in providing health care to the patient. In a majority opinion by Justice Susan Owens, joined by Chief Justice Gerry Alexander and Justices Charles Johnson, Richard Sanders, Tom Chambers, Mary Fairhurst, and Debra Stephens, the Court declared that the certificate of merit requirement violates the Washington constitution on two bases: (1) because it violates "separation of powers" between the Legislature and the Judiciary (9-0), and (2) because it blocks medical malpractice victims from their access to the courts (7-0).

The Court said, "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. 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." The majority then reasoned, "It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people. Accordingly, we must strike down this law."

The Court concluded that because 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", it "fundamentally conflicts with the civil rules regarding notice pleading - one of the primary components of our justice system." Again, the Court said: it "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."

Justice Barbara Madsen authored a concurring opinion signed by Justice James Johnson, which agreed with the majority on the separation of powers but disagreed as to denial of access to courts.

Ron Perey, lead counsel for Ms. Putman, said, "This is a stunning victory for Kimme Putman and the other injured patients and their families for whom we've long advocated. Injured patients will now again have a level playing field in lawsuits against doctors, hospitals and insurers which have limitless funds to defend lawsuits." The Court rejected various legal arguments made by the Clinic, as well as the insurance and health care industries' belief that a growing number of allegedly frivolous claims necessitate premium increases. In reality, substantial historical and statistical research by objective sources proves this so-called "medical malpractice crisis" is a myth fueled by those special interest groups.

During oral argument before the Court, when asked about the Washington State Trial Lawyers Association's (now Washington State Association for Justice) support for the bill just before the Legislature adopted it in 2006, Mr. Perey noted that those involved in closed door, pre-bill negotiations did not represent the people of Washington State. "They didn't ask me, and they didn't ask my clients - the victims of medical negligence," he said. "In any event, the Court agreed that legislative politics, lobbying and well-intentioned backroom deals are irrelevant to whether a statute is constitutional. Constitutional rights are fundamental rights which cannot be abrogated or denied by political agreement."

In crafting the certificate of merit requirement, the Washington Legislature singled out doctors and hospitals for special legal treatment, changing hundreds of years of precedent. The certificate of merit requirement applied to no defendants except health care providers - not to product manufacturers, barbers, architects, pharmaceutical companies, lawyers, airline pilots, politicians, plumbers, electricians, truck drivers, automobile operators, but only to cases against perpetrators of injury to patients through negligent medical care. This, despite irrefutable medical evidence that over 100,000 patients die each year as a result of hospital and/or medical errors; and less than 1% of all patients injured by medical negligence ever bring a claim.

The Supreme Court's decision in Putman puts an end to unjust special treatment for doctors and hospitals, and set the law right so that all parties, whether plaintiff or defendant, are equal before the Washington State courts.