Certificate of Merit Laws

State legislatures have been grappling for years with calls from the medical community for medical malpractice reforms aimed at reining in the costs of practicing medicine. It is argued that the costs of obtaining medical malpractice insurance coverage and defending spurious medical malpractice claims make practicing medicine too costly for practitioners, so legislatures have tried a number of ways to persuade medical practitioners that their states are more practitioner-friendly. These include venue-shopping curbs and caps on non-economic damages recoverable through medical malpractice suits.

Certificate of Merit

Another popular way states have encouraged doctors and other health care providers to practice within their borders is by stopping medical malpractice claims in their early stages by requiring the filing of a certificate of merit before a case can proceed. The certificate of merit generally must include a declaration by the plaintiff's attorney that he or she believes the care the plaintiff received fell below the standard of care and caused the plaintiff's injuries, oftentimes along with a similar declaration made by at least one medical expert who has reviewed the plaintiff's medical records.

Plaintiff attorneys have long argued that the requirement that their clients file a certificate of merit in order to press their cases deprives them of access to the full discovery process that is sometimes necessary before it can be determined if a valid claim even exists. They have made these claims, usually unsuccessfully, in state after state.

The conflict came to the fore again in a recent case in Washington State, but this time the court came down on the side of plaintiffs. In Putman v. Wenatchee Valley Medical Center, — P.3d —-, 2009 WL 2960977 (Wash., 2009), the Supreme Court of Washington struck down Washington's law requiring a certificate of merit in medical malpractice lawsuits.

The patient in the Putman case, Kimme Putman, had filed a medical malpractice action against her doctors and the medical center at which she received treatment, alleging the defendants negligently failed to diagnose her ovarian cancer. Justice John E. Bridges of the Superior Court, Chelan County, dismissed the action because Putnam failed to file a certificate of merit from a medical expert in accordance with Revised Code of Washington (RCW) 7.70.150. The patient appealed, claiming the statute was unconstitutional.

First Question: Does the Statute Unduly Burden the Right of Access to the Courts?

The State Supreme Court began its discussion of the issue of access to the courts by referring to the U.S. Supreme Court's decision in the eminent case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). There, the Court said, “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”

The Supreme Court of Washington has explained that this right of access to the courts includes the right to conduct discovery, both for the purpose of pressing a claim and defending against it. John Doe v. Puget Sound Blood Ctr., 117 Wash.2d 772 (1991). With these principles in mind, the Putnam court concluded on the issue of the right of access:

Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to courts. Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims ' . 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. Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts. It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people ' . Accordingly, we must strike down this law.

Conclusion

In next month's issue we will discuss more of the Supreme Court of Washington's reasons for invalidating the statute requiring a certificate of merit in medical malpractice cases. We will also look at what other states' courts have done when faced with the question of whether a certificate of merit requirement unduly infringes on their citizens' rights.

Janice G. Inman is Editor-in-Chief of this newsletter.

State legislatures have been grappling for years with calls from the medical community for medical malpractice reforms aimed at reining in the costs of practicing medicine. It is argued that the costs of obtaining medical malpractice insurance coverage and defending spurious medical malpractice claims make practicing medicine too costly for practitioners, so legislatures have tried a number of ways to persuade medical practitioners that their states are more practitioner-friendly. These include venue-shopping curbs and caps on non-economic damages recoverable through medical malpractice suits.

Certificate of Merit

Another popular way states have encouraged doctors and other health care providers to practice within their borders is by stopping medical malpractice claims in their early stages by requiring the filing of a certificate of merit before a case can proceed. The certificate of merit generally must include a declaration by the plaintiff's attorney that he or she believes the care the plaintiff received fell below the standard of care and caused the plaintiff's injuries, oftentimes along with a similar declaration made by at least one medical expert who has reviewed the plaintiff's medical records.

Plaintiff attorneys have long argued that the requirement that their clients file a certificate of merit in order to press their cases deprives them of access to the full discovery process that is sometimes necessary before it can be determined if a valid claim even exists. They have made these claims, usually unsuccessfully, in state after state.

The conflict came to the fore again in a recent case in Washington State, but this time the court came down on the side of plaintiffs. In Putman v. Wenatchee Valley Medical Center, — P.3d —-, 2009 WL 2960977 (Wash., 2009), the Supreme Court of Washington struck down Washington's law requiring a certificate of merit in medical malpractice lawsuits.

The patient in the Putman case, Kimme Putman, had filed a medical malpractice action against her doctors and the medical center at which she received treatment, alleging the defendants negligently failed to diagnose her ovarian cancer. Justice John E. Bridges of the Superior Court, Chelan County, dismissed the action because Putnam failed to file a certificate of merit from a medical expert in accordance with Revised Code of Washington (RCW) 7.70.150. The patient appealed, claiming the statute was unconstitutional.

First Question: Does the Statute Unduly Burden the Right of Access to the Courts?

The State Supreme Court began its discussion of the issue of access to the courts by referring to the U.S. Supreme Court's decision in the eminent case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). There, the Court said, “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”

The Supreme Court of Washington has explained that this right of access to the courts includes the right to conduct discovery, both for the purpose of pressing a claim and defending against it. J ohn Doe v. Puget Sound Blood Ctr. , 117 Wash.2d 772 (1991). With these principles in mind, the Putnam court concluded on the issue of the right of access:

Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to courts. Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims ' . 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. Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts. It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people ' . Accordingly, we must strike down this law.

Conclusion

In next month's issue we will discuss more of the Supreme Court of Washington's reasons for invalidating the statute requiring a certificate of merit in medical malpractice cases. We will also look at what other states' courts have done when faced with the question of whether a certificate of merit requirement unduly infringes on their citizens' rights.

Janice G. Inman is Editor-in-Chief of this newsletter.