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September 17, 2009 in City
Court throws out medical malpractice law
OLYMPIA — The state Supreme Court on Thursday unanimously threw out a 2006 law that requires an injured patient to get a certificate of merit from an expert before they can sue for medical malpractice.
The high court ruled that the law violates the separation of state powers, saying that allowing the Legislature to set rules about filing a lawsuit “conflicts with the judiciary’s inherent power to set court procedures.”
Seven of the justices also said that the law was unconstitutional because it unduly burdened the right of access to courts.
“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,” wrote the majority, led by Justice Susan Owens. “Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs’ right of access to courts.”
Justices Barbara Madsen and James Johnson wrote in a separate concurring opinion that while they agreed that the law was unconstitutional on the basis of separation of powers, it did not unduly interfere with access to the courts.
The case stems from a lawsuit filed by Kimme Putman of Wenatchee, whose 2007 lawsuit against Wenatchee Valley Medical Center was dismissed by a Chelan County Superior Court because she didn’t file the certificate.
Putman says the center and two doctors were negligent because they failed to diagnose her ovarian cancer in 2001 and 2002. Putman alleged that the delay in her diagnosis until 2005 kept her from being able to get early treatment and limited her 5-year survival rate to 40 percent.
The law was one of several changes made to the medical malpractice system in 2006, after voters defeated two competing initiatives the year before put forth by doctors and trial attorneys.
Putman’s attorney, Ron Perey, said the law requiring the certificate created an impossible situation for patients.
“You couldn’t get reputable doctors to sign such a thing without first finding out what happened in the operating room,” he said. But under such a system, “the doctors and nurses wouldn’t talk,” the certificate of merit would never be issued, leading courts to dismiss the cases.
Because the law only applied to doctors, it “created a situation where doors to plaintiffs were closed because they couldn’t get the certificate of merit.”
Attorneys for the medical center did not immediately return calls seeking comment Thursday.
The case is Putman v. Wenatchee Valley Med. Ctr., docket number 80888-1.
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WaLegalReform on September 17 at 1:29 p.m.
This is the kind of reform that is put in place to restrict lawsuits to meaningful ones. We need reform that keeps unnecessary lawsuits out of the courts. Stop wasting court time and money.
http://www.facebook.com/pages/Legal-Reform-for-A-Better-Washington/59794293907
misjustice on September 17 at 9:43 p.m.
I totally disagree with WaLegalReform!
If the doctors screw up and harms —or worse kill — a patient, they should be able to be sued. Any family member should be able to sue the crap out of them. The laws where you can’t sue them is only for the benefit of the medical and insurance community.
Why do you ask do I feel that way? Because a doctor in a local emergency room diagnosed my nephew with acid reflux and sent him home with pepcid. Told him there was nothing wrong with him. He died that night while laying on the living room couch. The coroner said he died of a massive heart attack. My nephew was only 35 years old. The only people that can sue for wrongful death in this state is a spouse or their children. Well, my nephew did not have a wife or kids.
So, this doctor & hospital will get away with killing this young man and the pain they have inflected upon this family is sometimes unbearable. His mother has lost weight from 165 pounds and is now down to 104 pounds. It has been almost 3 years since his death. She still cries every day because she didn’t take her son to a different hospital.
Good for the judge that has a backbone and changed the law. Maybe next they will change the law so parents can sue for the wrongful death of a child, no matter what age that child is!