RCW 7.70.150 provides that, prior to filing suit for medical malpractice, “the plaintiff must file a certificate of merit at the time of commencing the action.” RCW 7.70.150(1). That certificate of merit needs to be “executed by a health care provider who meets the qualifications of an expert” and “must contain a statement . . . based on the information known at the time . . . that there is a reasonable probability that the defendant’s conduct did not follow the accepted standard of care required.” RCW 7.70.150(2), (3). If the plaintiff fails to file the certificate of merit, the case may be dismissed. RCW 7.70.150(5)(a).
The DOC moved for summary judgment, claiming that the statute of limitations for Mr. Martin’s claims had expired and that Mr. Martin had failed to file a certificate of merit as required under RCW 7.70.150. A federal magistrate judge issued a report and recommendation recommending dismissal of Mr. Martin’s federal and state claims as to medical events occurring before the three-year statute of limitations. As to the certificate of merit, the judge cited Reed v. Hammond, C16-5993 BHS-DWC (W.D. Wash. Jan. 13, 2020), which had declined to enforce the requirements of RCW 7.70.150 or to certify a question to the Washington Supreme Court as to the statute’s legitimacy. Instead, following Reed, the magistrate judge determined that state precedent had likely deemed RCW 7.70.150 unconstitutional. Even if the statute were constitutional as to a state defendant, Reed held that the state courts would not likely determine such a decision to be retroactive in application. The DOC objected to these findings and requested that the Washington Supreme Court determine the constitutionality of the statute under Washington law.
The Supreme Court of the State of Washington (“Washington Supreme Court”) stated in its opinion filed on May 26, 2022: “We hold RCW 7.70.150 invalid on its face based on our prior case holding and on statutory language that does not differentiate between private and public defendants.”
The Washington Supreme Court had held in Putman v. Wenatchee Valley Medical Center, PS, 166 Wn.2d 974, 216 P.3d 374 (2009) that RCW 7.70.150 was unconstitutional on two separate grounds: violation of the right of access to the courts and violation of the separation of powers. Putman involved a suit against a private defendant; the present lawsuit was brought against the State.
The Washington Supreme Court stated, “In the present case, both parties’ arguments turn primarily on the application of sovereign immunity to RCW 7.70.150 … the legislature must give some expression that a statute distinguishes claims brought against governmental entities. Most of the statutes that govern the ways in which plaintiffs can sue the State do so by directly indicating that governmental entities are the focus of the law … RCW 7.70.150 does not expressly refer to governmental entities in its language … No specific reference to governmental entities exists. The statutory language applies to both private and public medical providers in the same way. Because the goal of the waiver of sovereign immunity was to eliminate major distinctions between suits brought against public and private defendants, we will not read such a distinction into the statute at issue here.”
The Washington Supreme Court held: “We determined the certificate of merit requirement under RCW 7.70.150 was facially invalid in Putman. Because the statutory language does not apply explicitly to State defendants—thereby invoking sovereign immunity—the same analysis used in Putman applies for governmental entities.”
Source Martin v. Wash. State Dep’t of Corr., No. 100103-7.
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