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Court throws out malpractice law

State law requiring expert certificate of merit is unconstitutional, justices say

Rachel La Corte Associated Press

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 suing 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.

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” and 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.

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