Tort reform faces constitutional challenge in Washington

The state Supreme Court will decide if patients need to give doctors advance warning of lawsuit filings.

By Amy Lynn Sorrel — Posted March 26, 2010

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Washington Supreme Court justices on Feb. 25 heard oral arguments in a case that will decide the fate of a tort reform measure aimed at curbing unnecessary medical liability litigation.

The 2006 law requires patients to notify defendants of any intentions to sue at least 90 days before filing a medical liability action.

Dental patient Nancy Waples has asked the high court to declare the measure unconstitutional, alleging that it sets a higher bar for medical liability cases and violates her equal protection rights. An appeals court rejected those arguments in 2008, when it dismissed a negligence suit Waples filed against her dentist because she failed to file the required prelitigation notice.

Physicians noted that the Legislature passed the reform to preserve access to care by promoting settlements and tempering rising medical liability costs. Those are legitimate state goals that the courts should not second-guess, according to a friend-of-the-court brief filed by the Washington State Medical Assn. and Physicians Insurance A Mutual Co., one of the state's largest medical liability insurance carriers.

Doctors also disputed arguments by trial lawyers that the law immunizes physicians from lawsuits and hurts patients' access to the courts. The statute does nothing to foreclose patients' ability to sue and, at best, imposes modest delays that are nonetheless aimed at resolving such cases, the physicians' brief said.

The Washington State Assn. for Justice, a state trade group for plaintiff lawyers, filed a friend-of-the-court brief in the case, Waples v. Yi, asking the high court to overturn the law.

The suit follows a September 2009 high court decision declaring unconstitutional a separate reform measure that required plaintiffs to file an affidavit from an expert certifying a lawsuit's merit.

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