Wash. SC votes 5-4 on 90-day pre-suit malpractice notice

OLYMPIA, Wash. (Legal Newsline) - In a malpractice case against a state hospital, a divided Washington State Supreme Court appeared to reverse precedent, finding the 90-day pre-suit notice required in malpractice actions against the state to be constitutional.

Justice James M. Johnson authored the 5-4 majority opinion and was joined by Chief Justice Barbara A. Madsen and Justices Charles K. Wiggins, Susan Owens, and Mary E. Fairhurst in the majority.

Justice Tom Chambers wrote the dissenting opinion which was concurred in by Justices Charles W. Johnson, Debra L. Stephens, and Steven C. Gonzalez.

Glen A. McDevitt was injured in a paragliding accident July 9, 2007, and underwent surgery as a result of his leg fracture at Harborview Medical Center the next day.

Later in July as a result of "significant swelling" in his leg he went to the emergency room of another hospital where he was diagnosed with deep venous thrombosis.

McDevitt filed suit against Harborview in July 2010 alleging medical malpractice and Harborview moved for summary judgment "based on the undisputed fact that McDevitt failed to comply with the 90-day pre-suit notice requirement of RCW 7.70.100(1)."

"In response, McDevitt argued that our decision in [Waples v. Yi] invalidated the pre-suit notice requirement against both private and public defendants," the opinion states.

Harborview then argued that the Court did not have occasion to consider the constitutional validity of the pre-suit notice requirement as applied to lawsuits against the state as Waples v. Yi involved an individual filing a malpractice suit against a private hospital.

After the King County Superior Court denied Harborview's motion for summary judgment, Harborview petitioned the state Supreme Court for discretionary review which was granted.

Justice Johnson wrote, "Our decision in Waples was a dispute between private parties and did not involve a state defendant. Whereas the defendants in Waples were private individuals and private corporations, we have previously determined that Harborview Medical Center is the equivalent of a state agency and arm of the state [in] Hontz v. State.

"As a result, there were no facts in Waples to address the issue of whether article II, section 26, and the legislature's waiver of sovereign immunity, permitted the legislature to establish conditions precedent before suit can be brought against the State ... None of our relevant case law regarding article II, section 26 or the State's waiver of sovereign immunity was even addressed in the Waples opinion.

"We reverse the King County Superior Court's denial of Harborview Medical Center's motion for summary judgment. We hold that the 90-day pre-suit notice requirement of RCW 7.70.100(1) as applied to the State is a constitutional application of law under article II, section 26 of the Washington Constitution.

"Additionally, we find that the 90-day pre-suit notice requirement of RCW 7.70.100(1) is not a violation of equal protection. Lastly, we hold that our decision in Waples was an as-applied invalidation of RCW 7.70.100(1)."

Chambers, writing for the four dissenting justices, strongly disagreed with the majority's analysis.

"The majority is wrong in its statutory analysis, ignores the clear direction of the legislature to avoid inconsistent pre-suit notice requirements, fails to treat similar government and private entities the same, and reaches an absurd result.

"It confuses what the legislature could constitutionally do with what the legislature did do in this legislation.

"The majority acknowledges that the "[t]he purpose of these exemptions was to avoid inconsistent pre-suit notice requirements in medical malpractice cases" (referring to former RCW 4.92.110 (2006) and former RCW 4.96.020 (2006)), a statement with which I agree. But the majority's result is just the opposite.

"Under the majority's opinion, government health care providers are given the benefit of a pre-suit notice requirement that other health care providers are not, and government health care providers are given the benefit of a more generous pre-suit notice requirement than any other government entity. This is an absurd result."

Chambers concludes, "Today, the court writes a statute that our legislature did not consider and could not have intended. Article II, section 26 does not vest this court with the authority to legislate. I respectfully dissent."