On January 16, 2014, the Supreme Court of the State of Washington (“Washington Supreme Court”) held that a Washington statute that eliminates tolling of the statute of limitations for minors in the context of medical malpractice claims is unconstitutional: “We hold that RCW 4.16.190(2) violates article I, section 12 of the Washington State Constitution and we therefore reverse the trial court’s summary judgment order dismissing Schroeder’s medical malpractice action.”
RCW 4.16.190 (“Statute tolled by personal disability.”) states:
(1) Unless otherwise provided in this section, if a person entitled to bring an action mentioned in this chapter, except for a penalty or forfeiture, or against a sheriff or other officer, for an escape, be at the time the cause of action accrued either under the age of eighteen years, or incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, such incompetency or disability as determined according to chapter 11.88 RCW, or imprisoned on a criminal charge prior to sentencing, the time of such disability shall not be a part of the time limited for the commencement of action.
(2) Subsection (1) of this section with respect to a person under the age of eighteen years does not apply to the time limited for the commencement of an action under RCW 4.16.350.
RCW 4.16.350 (“Hospitals, clinics, nursing homes, etc.”) states, in part: “Any civil action for damages for injury occurring as a result of health care which is provided after June 25, 1976 … based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his or her representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later, except that in no event shall an action be commenced more than eight years after said act or omission: PROVIDED, That the time for commencement of an action is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect, until the date the patient or the patient’s representative has actual knowledge of the act of fraud or concealment, or of the presence of the foreign body; the patient or the patient’s representative has one year from the date of the actual knowledge in which to commence a civil action for damages. For purposes of this section, notwithstanding RCW 4.16.190, the knowledge of a custodial parent or guardian shall be imputed to a person under the age of eighteen years, and such imputed knowledge shall operate to bar the claim of such minor to the same extent that the claim of an adult would be barred under this section. Any action not commenced in accordance with this section shall be barred. For purposes of this section, with respect to care provided after June 25, 1976, and before August 1, 1986, the knowledge of a custodial parent or guardian shall be imputed as of April 29, 1987, to persons under the age of eighteen years.”
The Washington Supreme Court referenced article I, section 12 of the Washington Constitution which provides that “[n]o law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”
In determining if a statute violates article I, section 12, the Washington Supreme Court stated that the first issue is whether a challenged law grants a “privilege” or “immunity” for purposes of Washington’s state constitution, and if so, then the next issue becomes whether there is a “reasonable ground” for granting that privilege or immunity.
The Washington Supreme Court held that because RCW 4.16.190(2) limits the ability of certain plaintiffs — those whose injuries occurred during childhood — to bring medical malpractice claims, it therefore grants an immunity (and burdens a privilege) triggering the reasonable ground test under article I, section 12. The reasonable ground test involves the court scrutinizing the legislative distinction to determine whether it in fact serves the legislature’s stated goal.
The Washington Supreme Court noted that RCW 4.16.190(2) has the potential to burden a particularly vulnerable population not accountable for its status — it places a disproportionate burden on the child whose parent or guardian lacks the knowledge or incentive to pursue a claim on his or her behalf.
The Washington Supreme Court held that “even if minors generally do not constitute a semi suspect class under article I, section 12, the group of minors most likely to be adversely affected by RCW 4.16.190(2) may well constitute the type of discrete and insular minority whose interests are a central concern in our state equal protection cases … we find that RCW 4.16.190(2) violates article I, section 12 of the Washington Constitution. We therefore reverse the trial court’s order dismissing Schroeder’s claim.”
Source Schroeder v. Weighall, et al., No. 87207-4
If you or a loved one may be the victim of medical malpractice in Washington State or in another U.S. state, you should promptly consult with a Washington State medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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