Certificate-of-merit law struck down by Washington Supreme Court

The high court, in a separate ruling, declined to allow trial lawyers to include consumer protection act claims in medical liability cases.

By Amy Lynn Sorrel — Posted Oct. 12, 2009

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The Washington Supreme Court dealt a setback to physicians by striking down a tort reform measure aimed at curbing meritless medical liability lawsuits.

But doctors, in a separate ruling, won a reprieve when the high court rejected an attempt by trial lawyers to expand physician liability.

On Sept. 17, justices found unconstitutional a state law requiring patients, at the initial filing of a lawsuit, to submit a statement from a medical expert certifying that there was a reasonable basis for the allegations. The court unanimously said the certificate-of-merit statute encroached on the court's ability to set its own procedural rules, violating the separation of powers between the Legislature and the judiciary. In particular, the court found that the law conflicted with an existing rule barring additional verification of a case.

A majority of the court's nine justices also said the measure burdened patients' access to the courts by requiring them to submit evidence supporting their claims without the benefit of the full discovery process to uncover such facts.

But two justices disagreed with that part of the ruling, saying the courts and lawmakers have the discretion to impose reasonable restrictions on cases that do not necessarily violate patients' rights.

"In this case, the Legislature's interest to curb malpractice insurance costs outweighs the moderate burden on the plaintiff," Justice Barbara A. Madsen wrote. She noted that even without the certificate of merit, patients still must present expert witness testimony later in the litigation process.

The statute "may impede a plaintiff's ability to advance discovery but is reasonable when balanced against the efficiency interests of the courts and the interest of the Legislature in creating affordable health care," the dissenting opinion states.

In 2007, Kimmie Putman sued a medical center and several physicians for allegedly failing to diagnose her ovarian cancer in 2001. The facility and physicians denied any wrongdoing. A trial court dismissed the case because Putman failed to file a certificate of merit with the case and ruled the requirement constitutional. Putman appealed directly to the state Supreme Court, challenging the validity of the certificate-of-merit law.

Future reforms at risk?

Physicians are concerned that the high court ruling could jeopardize future tort reform measures.

"This [certificate of merit] doesn't seem like too much of a burden when trying to balance it with providing people with greater access to health care, and that's why this is so troubling," said Tim Layton, director of legal affairs for the Washington State Medical Assn. The organization joined the Litigation Center of the American Medical Association and State Medical Societies in filing a friend-of-the-court brief in the case.

"If this is what seven justices think is too much of a burden, it makes you wonder what reform measures could be upheld," Layton said.

Dissenting justices said similarly that the majority's interpretation could hinder the court's ability to set its own rules governing court proceedings.

The decision puts a greater emphasis on the need for tort reform in federal health system reform, Layton added. It also may force physicians to look for liability solutions outside traditional tort reform measures, such as the federally funded demonstration projects recently approved by President Obama, he said.

Ron Perey, Putnam's attorney, said the certificate-of-merit requirement has hurt many cases. For example, many lawsuits were dismissed or never brought because patients could not find an expert willing to opine on a case before discovery revealed the entire situation.

"If in discovery you find [additional] facts that change the circumstances, you've now weakened [the expert's] opinion, and he's assailable for not taking that into consideration," Perey said. The process also caused unfair delays, he added.

"This [ruling] is a warning for the Legislature to be careful if they are going to create these rules, and to make sure they at least have the appearance of being constitutional," Perey said.

A friend-of-the-court brief submitted by the Washington State Assn. for Justice, the state trial bar, said lawmakers must show "an overpowering public necessity" for any limitations on court access. The brief also pointed to another existing statute permitting sanctions against attorneys who file frivolous lawsuits.

Consumer protection claims rejected

Meanwhile, in a more favorable ruling for physicians, the state Supreme Court on Sept. 24 ruled that Consumer Protection Act claims could not be included automatically in medical liability cases.

A patient alleged that a physician prescribed an unnecessary surgery, after which she experienced complications. In addition to alleging negligence, the patient claimed that the doctor's improper recommendation and the costs of the alleged unnecessary surgery constituted unfair business practices under the state's Consumer Protection Act and entitled her to additional damages.

But the high court unanimously said the surgery expenses could not be separated from the medical liability claim. Justices reaffirmed that the consumer protection law was not designed to address health care decisions and give patients "back door access to compensation they were denied in personal injury suits."

The ruling is significant for doctors, because the Legislature recently expanded the state's Consumer Protection Act to allow plaintiffs to recover triple damages and attorneys fees, said Gary Morse. He is senior vice president of one of the state's largest medical liability insurers, Physicians Insurance A Mutual Co. The company filed a brief in the case with the WSMA and AMA Litigation Center urging the high court to exclude consumer protection act claims from negligence cases.

The ruling also sends a message to other states, where trial lawyers have pushed for similar expansions of physician liability, said Dana Childers, executive director of the Washington Liability Reform Coalition, a group of health care and other business organizations that supports tort reform.

"This gives hope that for legislatures looking to broaden their consumer protection acts, courts may be coming down more cautiously in applying it."

The Washington State Assn. for Justice filed an opposing brief, arguing that the decision eliminates a remedy for plaintiffs who may be injured by a doctor's professional and business practices.

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Case at a glance 1

Is it constitutional for state law to require certificate of merits with medical liability cases?

The Washington Supreme Court said the statute violated patients' access to the courts and the separation of powers between the Legislature and the judiciary.

Impact: Physicians say the ruling could jeopardize their ability to get even modest tort reform measures passed. Trial lawyers say the requirement hindered many legitimate claims.

Putman v. Wenatchee Valley Medical Center, Washington Supreme Court

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Case at a glance 2

Can consumer protection act claims automatically be included in medical liability lawsuits?

The Washington Supreme Court said no.

Impact: Physicians say the decision protects doctors from unwarranted, additional liability exposure. Trial lawyers say it removes certain remedies for patients injured by more than just professional negligence.

Ambach v. French, Washington Supreme Court

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