Certificate of Merit Laws Under Fire

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.

Not a 'Special Proceeding'

What is a “special proceeding” under Washington law? Since the term “special proceeding” is not defined within the rule, and the state's highest court had not yet formulated a test for determining whether a proceeding is ordinary or special, the court turned to case-law precedent to find that Washington courts have identified certain actions as special proceedings, including lien foreclosures, sexually violent predator petitions, garnishments, will contests, and unlawful detainer actions. Beyond these, the court here determined that the term “special proceeding” should apply only to proceedings that are purely created by legislative action. Thus, mandamus, certiorari and attachment proceedings ' like others that did not exist under the common law ' would be deemed special proceedings. So would proceedings where the legislature has exercised its police power to completely change the remedies available, such as those to determine workers' compensation benefits. The Putnam case, however, dealt with a medical malpractice claim, which the court found was fundamentally a negligence claim rooted in the common law tradition. As such, it was not a “special proceeding,” even though, as the defendant argued, the legislature had attempted to set out statutory requirements for the filing medical malpractice cases. The court dismissed the defendant's assertion, stating, “This argument is unsustainable because it places no limits on the ability of the legislature to determine procedural rules. Under this standard, the legislature could reclassify any common law action as a special proceeding by passing statutes regulating its procedures, thereby eroding this court's power to determine its own court rules.”

A Conflict Is Found

Having dispensed with the “special proceeding” exception argument, the court turned to the separation of powers question, noting that Washington's state constitution does not contain a formal separation of powers clause. However, the state's courts have held that the fact that the government was and is divided into three branches creates the presumption ' always followed within the state ' that these three entities possess separate powers that must be preserved to them. Brown v. Owen, 165 Wash.2d 706 (2009). If the activity of one branch threatens the independence or invades the prerogatives of another, it violates the separation of powers. City of Fircrest v. Jensen, 158 Wash2d 384 (2006).

Next, the court found that one of the fundamental functions of the judicial branch is to promulgate rules for carrying out its own mission. Any rules the other branches of government try to impose upon the courts will be given effect only if they do not impinge upon that prerogative. The court explained: “If a statute appears to conflict with a court rule, this court will first attempt to harmonize them and give effect to both, but if they cannot be harmonized, the court rule will prevail in procedural matters and the statute will prevail in substantive matters.” Thus, the court concluded that its role in the Putnam matter was to determine whether RCW 7.70.150 could be harmonized with CR 8 and 11. If not, the court rule would prevail under the separation of powers doctrine if RCW 7.70.150 involved fundamentally procedural, rather than substantive, matters.

RCW 7.70.150 requires medical malpractice plaintiffs to file a certificate of merit with their pleadings that contains an expert's statement to the effect that “based on the information known at the time of executing the certificate of merit ' there is a reasonable probability that the defendant's conduct did not follow the accepted standard of care.” This requirement, the court noted, directly conflicts with CR 11, which states that attorneys have to submit verifications of pleadings in certain circumstances, all of which are family-law related actions. It says nothing about attorneys having to verify pleadings in medical malpractice actions.

RCW 7.70.150 also conflicts with CR 8, which describes Washington's system of notice pleading. In order to file a lawsuit, the notice pleading system requires only “a short and plain statement of the claim” and a demand for relief. CR 8(a). Under this notice pleading regime, plaintiffs may use the discovery process to uncover the evidence necessary to pursue their claims. John Doe v. Puget Sound Blood Ctr., 117 Wash.2d 772 (1991). The Putnam court therefore concluded that
“[t]he certificate of merit requirement essentially requires plaintiffs to submit evidence supporting their claims before they even have an opportunity to conduct discovery and obtain such evidence. For that reason, the certificate of merit requirement fundamentally conflicts with the civil rules regarding notice pleading ' one of the primary components of our justice system.”

A Procedural Matter

The final question was whether the conflict between RCW 7.70.150 and CR 8 and 11 involved procedural or substantive law. In accordance with Fircrest, supra, a substantive law is defined in Washington State as one that creates, defines and regulates primary rights; procedural law concerns itself with operations of the courts by which substantive law, rights and remedies are effectuated. With these principles in mind, the court stated: “We hold that RCW 7.70.150 is procedural because it addresses how to file a claim to enforce a right provided by law ' . The statute does not address the primary rights of either party; it deals only with the procedures to effectuate those rights. Therefore, it is a procedural law and will not prevail over the conflicting court rules.”

The court therefore struck down RCW 7.70.150 and its requirement of a certificate of merit in medical malpractice cases, not only because it violates Washington citizens' right of access to courts, but also because it conflicts with the judiciary's inherent power to determine and set court procedures.

Other States Answer the Question

The state of Arkansas conducted a similar inquiry to that undertaken by the Putman court in Summerville v. Thrower, 369 Ark. 231(Ark. 2007). There, the Arkansas Supreme Court found that the statutory requirement that a medical malpractice action be dismissed if a reasonable cause affidavit was not filed within 30 days of the filing of complaint added a legislative encumbrance not found in civil procedure rules governing commencement of actions. It was therefore unconstitutional for being in direct conflict with the state's case commencement rule and with Supreme Court's authority to make rules of pleading, practice, and procedure for the state's courts.

Ohio's Supreme Court, in Hiatt v. S. Health Facilities Inc., 68 Ohio St.3d 236 (Ohio 1994), came to the same conclusion concerning its state's statute requiring a special affidavit to be filed along with medical malpractice pleadings. The court there held that a civil procedure rule that provided that pleadings need not be verified or accompanied by any affidavits prevailed over a state statute requiring that medical malpractice complaints be accompanied by an attorney's affidavit showing that an attempt had been made to obtain the patient's records.

Oklahoma's Supreme Court invalidated its state's affidavit of merit requirement in med-mal cases because it limited access to the courts by imposing an additional ' and expensive ' step on medical malpractice plaintiffs. The court in Zeier v. Zimmer Inc., 152 P.3d 861 (Okla. 2006), found that medical malpractice claimants had been singled out by the legislation to expend an additional $500 to $5,000 in order to obtain their affidavits of merit, and thus gain access to the courts. In addition, the extra requirement constituted an unconstitutional special law under the Oklahoma Constitution's provision prohibiting special laws regulating the practice or jurisdiction of, or changing the rules of evidence in, judicial proceedings.

Some courts, however, have held that the promulgation of an affidavit of merit statute is within their legislatures' power to enact laws to promote public policy ' here the policy of limiting the filing of frivolous lawsuits in order to make the provision of health care more affordable ' and these laws do not interfere with the courts' prerogative to control their own procedures. See, e.g., McAlister v. Schick, 147 Ill.2d 84 (1992); N.J. State Bar Ass'n v. State, 387 N.J.Super. 24 (App.Div.), cert. denied, 188 N.J. 491 (2006).

Conclusion

State legislators and their constituents reacted to fears of rising health care costs and physician flight from certain states by trying in various ways to reign in the costs associated with medical malpractice claims. What many of the laws they promulgated did not fully take into account were the age-old constitutional issues raised in cases like Putnam, Hiatt and Summerville. When the law in question concerns damage caps, constitutional challenges have largely proven unsuccessful. But, as we have seen, plaintiffs in a number of states are having much better success in striking down affidavit and certificate of merit statutes on constitutional bases. It seems, perhaps, that courts are inclined to more jealously guard their own privileges against the encroachments of legislative will.

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

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.

Not a 'Special Proceeding'

What is a “special proceeding” under Washington law? Since the term “special proceeding” is not defined within the rule, and the state's highest court had not yet formulated a test for determining whether a proceeding is ordinary or special, the court turned to case-law precedent to find that Washington courts have identified certain actions as special proceedings, including lien foreclosures, sexually violent predator petitions, garnishments, will contests, and unlawful detainer actions. Beyond these, the court here determined that the term “special proceeding” should apply only to proceedings that are purely created by legislative action. Thus, mandamus, certiorari and attachment proceedings ' like others that did not exist under the common law ' would be deemed special proceedings. So would proceedings where the legislature has exercised its police power to completely change the remedies available, such as those to determine workers' compensation benefits. The Putnam case, however, dealt with a medical malpractice claim, which the court found was fundamentally a negligence claim rooted in the common law tradition. As such, it was not a “special proceeding,” even though, as the defendant argued, the legislature had attempted to set out statutory requirements for the filing medical malpractice cases. The court dismissed the defendant's assertion, stating, “This argument is unsustainable because it places no limits on the ability of the legislature to determine procedural rules. Under this standard, the legislature could reclassify any common law action as a special proceeding by passing statutes regulating its procedures, thereby eroding this court's power to determine its own court rules.”

A Conflict Is Found

Having dispensed with the “special proceeding” exception argument, the court turned to the separation of powers question, noting that Washington's state constitution does not contain a formal separation of powers clause. However, the state's courts have held that the fact that the government was and is divided into three branches creates the presumption ' always followed within the state ' that these three entities possess separate powers that must be preserved to them. Brown v. Owen , 165 Wash.2d 706 (2009). If the activity of one branch threatens the independence or invades the prerogatives of another, it violates the separation of powers. City of Fircrest v. Jensen , 158 Wash2d 384 (2006).

Next, the court found that one of the fundamental functions of the judicial branch is to promulgate rules for carrying out its own mission. Any rules the other branches of government try to impose upon the courts will be given effect only if they do not impinge upon that prerogative. The court explained: “If a statute appears to conflict with a court rule, this court will first attempt to harmonize them and give effect to both, but if they cannot be harmonized, the court rule will prevail in procedural matters and the statute will prevail in substantive matters.” Thus, the court concluded that its role in the Putnam matter was to determine whether RCW 7.70.150 could be harmonized with CR 8 and 11. If not, the court rule would prevail under the separation of powers doctrine if RCW 7.70.150 involved fundamentally procedural, rather than substantive, matters.

RCW 7.70.150 requires medical malpractice plaintiffs to file a certificate of merit with their pleadings that contains an expert's statement to the effect that “based on the information known at the time of executing the certificate of merit ' there is a reasonable probability that the defendant's conduct did not follow the accepted standard of care.” This requirement, the court noted, directly conflicts with CR 11, which states that attorneys have to submit verifications of pleadings in certain circumstances, all of which are family-law related actions. It says nothing about attorneys having to verify pleadings in medical malpractice actions.

RCW 7.70.150 also conflicts with CR 8, which describes Washington's system of notice pleading. In order to file a lawsuit, the notice pleading system requires only “a short and plain statement of the claim” and a demand for relief. CR 8(a). Under this notice pleading regime, plaintiffs may use the discovery process to uncover the evidence necessary to pursue their claims. John Doe v. Puget Sound Blood Ctr ., 117 Wash.2d 772 (1991). The Putnam court therefore concluded that
“[t]he certificate of merit requirement essentially requires plaintiffs to submit evidence supporting their claims before they even have an opportunity to conduct discovery and obtain such evidence. For that reason, the certificate of merit requirement fundamentally conflicts with the civil rules regarding notice pleading ' one of the primary components of our justice system.”

A Procedural Matter

The final question was whether the conflict between RCW 7.70.150 and CR 8 and 11 involved procedural or substantive law. In accordance with Fircrest, supra, a substantive law is defined in Washington State as one that creates, defines and regulates primary rights; procedural law concerns itself with operations of the courts by which substantive law, rights and remedies are effectuated. With these principles in mind, the court stated: “We hold that RCW 7.70.150 is procedural because it addresses how to file a claim to enforce a right provided by law ' . The statute does not address the primary rights of either party; it deals only with the procedures to effectuate those rights. Therefore, it is a procedural law and will not prevail over the conflicting court rules.”

The court therefore struck down RCW 7.70.150 and its requirement of a certificate of merit in medical malpractice cases, not only because it violates Washington citizens' right of access to courts, but also because it conflicts with the judiciary's inherent power to determine and set court procedures.

Other States Answer the Question

The state of Arkansas conducted a similar inquiry to that undertaken by the Putman court in Summerville v. Thrower , 369 Ark. 231(Ark. 2007). There, the Arkansas Supreme Court found that the statutory requirement that a medical malpractice action be dismissed if a reasonable cause affidavit was not filed within 30 days of the filing of complaint added a legislative encumbrance not found in civil procedure rules governing commencement of actions. It was therefore unconstitutional for being in direct conflict with the state's case commencement rule and with Supreme Court's authority to make rules of pleading, practice, and procedure for the state's courts.

Ohio's Supreme Court, in Hiatt v. S. Health Facilities Inc. , 68 Ohio St.3d 236 (Ohio 1994), came to the same conclusion concerning its state's statute requiring a special affidavit to be filed along with medical malpractice pleadings. The court there held that a civil procedure rule that provided that pleadings need not be verified or accompanied by any affidavits prevailed over a state statute requiring that medical malpractice complaints be accompanied by an attorney's affidavit showing that an attempt had been made to obtain the patient's records.

Oklahoma's Supreme Court invalidated its state's affidavit of merit requirement in med-mal cases because it limited access to the courts by imposing an additional ' and expensive ' step on medical malpractice plaintiffs. The court in Z eier v. Zimmer Inc. , 152 P.3d 861 (Okla. 2006), found that medical malpractice claimants had been singled out by the legislation to expend an additional $500 to $5,000 in order to obtain their affidavits of merit, and thus gain access to the courts. In addition, the extra requirement constituted an unconstitutional special law under the Oklahoma Constitution's provision prohibiting special laws regulating the practice or jurisdiction of, or changing the rules of evidence in, judicial proceedings.

Some courts, however, have held that the promulgation of an affidavit of merit statute is within their legislatures' power to enact laws to promote public policy ' here the policy of limiting the filing of frivolous lawsuits in order to make the provision of health care more affordable ' and these laws do not interfere with the courts' prerogative to control their own procedures. See, e.g., McAlister v. Schick , 147 Ill.2d 84 (1992); N.J. State Bar Ass'n v. State , 387 N.J.Super. 24 (App.Div.), cert. denied , 188 N.J. 491 (2006).

Conclusion

State legislators and their constituents reacted to fears of rising health care costs and physician flight from certain states by trying in various ways to reign in the costs associated with medical malpractice claims. What many of the laws they promulgated did not fully take into account were the age-old constitutional issues raised in cases like Putnam, Hiatt and Summerville. When the law in question concerns damage caps, constitutional challenges have largely proven unsuccessful. But, as we have seen, plaintiffs in a number of states are having much better success in striking down affidavit and certificate of merit statutes on constitutional bases. It seems, perhaps, that courts are inclined to more jealously guard their own privileges against the encroachments of legislative will.

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