Washington court says no to certificate of merit

In a ruling that has risk managers and attorneys across the country watching for repercussions, the Supreme Court of Washington state recently ruled that requiring a certificate of merit for a medical malpractice case is unconstitutional.

The court ruled on the case of Putnam v. Wenatchee Valley Medical Center, which had originally been thrown out by a lower court because the plaintiff did not file a certificate of merit along with her initial complaint. According to the court ruling, the requirement goes too far and inhibits access to the courts. By requiring the plaintiff to submit evidence before discovery, an undue burden was placed on the plaintiff, the court ruled. (Editor's note: For the full text of the ruling, go to http://www.wrsattorneys.com/library/Washington_Cert_of_Merit_opinion.pdf.)

Plaintiffs' attorneys in Washington welcomed the ruling, and those in other states saw it as an indication that other states might follow suit. Benjamin W. Glass III, JD, a plaintiff's attorney with Benjamin W. Glass & Associates in Fairfax, VA, says the court struck down the rule, because it unfairly denied some plaintiffs their day in court.

"Often, the cost of hiring an expert to simply look at the case before filing excluded not those with frivolous lawsuits — simply those with shallow pockets," he says. "Regardless whether or not the rule was effective, it is now a moot point, as the court has tossed it out. This is an example of supposed tort reform, but the legislators who are trying to cut back on frivolous lawsuits have to understand that they don't have the authority to impose restrictions on access to the courts."

Case going to trial court

The court's ruling means the case will be sent back to the trial court, and plaintiffs will no longer be required to file a certificate of merit in Washington.

"Now, at least the case will be allowed to go to trial and be heard on its merits rather than thrown out haphazardly," Glass says.

The plaintiff alleged that the defendant medical center and several of its employees negligently failed to diagnose her ovarian cancer. The plaintiff further alleged the delay in diagnosis caused her to miss the opportunity to undergo early treatment, which would increase her likelihood of long-term survival.

In the Washington case, the trial court dismissed the plaintiff's medical malpractice claim for failure to file a certificate of merit, as required by Washington statute RCW 7.70.150, and the plaintiff appealed directly to the Washington Supreme Court. The plaintiff challenged the constitutionality on several grounds, primarily that it unduly burdened her right of access to the courts, according to the court ruling.

The court agreed, saying that it may not be possible to obtain the evidence necessary to obtain the required certificate of merit without the opportunity to interview health care workers or review procedural manuals, which would be possible later through discovery.

Other states at risk

Any state requiring a certificate of merit could see the same court ruling that struck down the statute in Washington, says Stuart Ratzan, JD, managing shareholder with the law firm of Ratzan & Rubio in Miami, who specializes in medical malpractice cases on the plaintiff side.

"This legislation could be declared unconstitutional in any state, at any time. It depends on the particulars of the legislation and the makeup of the court," Ratzan explains.

The likelihood of striking down such a rule depends greatly on local politics and public mood, he says. Ratzan points out that Florida has required a certificate of merit for 20 years, and it has never faced significant challenge in court; and he doesn't expect it ever will. However, caps on damages are challenged much more regularly in any state that enacts them, because they are more universally opposed by some constituencies, and the legal defense for them is less sound.

"They pose a troublesome constitutional issue in most states and are more vulnerable, much more apt to draw a challenge in most states, because they pose more of a threat to a plaintiff's rights than a certificate of merit," he says. "But we've seen in Washington that some courts will strike down the certificate as well. It could happen anywhere."

Sources

For more information on Putnam v. Wenatchee, contact:

• Benjamin W. Glass III, JD, Benjamin W. Glass & Associates, Fairfax, VA. Telephone: (703) 591-9829. E-mail: ben@benglasslaw.com.