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Certificate of Merit Laws Under Fire

BY ALM Staff
December 18, 2009

In last month's newsletter we began a discussion of the holding in the recent case of Putman v. Wenatchee Valley Medical Center, 166 Wash.2d 974 (2009), in which the Supreme Court of Washington struck down that state's law requiring the filing of a certificate of merit in medical malpractice lawsuits. The court's first basis for deciding that the legislation was unlawful was the federal and state principles that all citizens should have open access to the courts and to the protections of the law provided therein. As Washington's certificate of merit requirement often prevented plaintiffs from obtaining discovery, their access to the courts was impinged upon by that requirement, the court found.

A Second Problem: The Separation of Powers

In Putman, the plaintiff contended that the Revised Code of Washington's (RCW's) section 7.70.150 certificate of merit requirement also violated the principle of the separation of powers by conflicting with the state's Court Rules (CR) 8 and 11, which deal with pleading requirements. Therefore, said the plaintiff, it also encroached upon the judicial branch's power to set court rules. The defendant contended that there was no such encroachment and that even if there were, CR 8 and 11 did not apply to medical malpractice claims because such claims are “special proceedings.” Such a designation would be significant here because CR 81(a) exempts special proceedings from being subject to the civil rules.

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