Wash. Court Dumps Notice for Malpractice Lawsuits

By | July 19, 2010

The Washington state Supreme Court said it is unconstitutional to require 90 days notice before suing a doctor, marking the second time in less than a year the court has rejected a legislative attempt to reform medical malpractice lawsuits.

The court said the waiting period violates the separation of powers between the legislative and judicial branches of government.

The courts already have procedural rules for filing civil suits, and adding a 90-day notice “conflicts with the judiciary’s power to set court procedures,” Justice Charles Johnson wrote for the majority.

The ruling sides with two separate plaintiffs who had medical malpractice cases thrown out by lower courts over notice issues. Those cases were sent back for further action.

The 90-day requirement was one of several changes the Legislature made to the medical malpractice system in 2006 after voters defeated two competing malpractice initiatives sponsored by doctors and trial lawyers.

The waiting period was meant to encourage settlements in cases that might otherwise head straight to court.

Another reform was thrown out by the state Supreme Court last September on constitutional grounds. The court said a law requiring injured patients to get a certificate of merit from an expert before suing violated separation of powers doctrine and unduly burdened the right of access to courts.

The minority in the ruling, led by Justice James Johnson, said the notice requirement didn’t irreparably infringe on the court’s power because it dealt only with the period before a suit is filed.

Dissenters also worried the court was going too far in interfering with the 2006 compromise package of legal changes to the medical malpractice system.

“This is not what the Legislature, the governor, or those other ‘good faith’ parties at the negotiating table agreed to, and we would be wise to avoid such a dramatic legislative revision,” Johnson wrote.

The minority pointed out several other types of notice periods in state law, such as a 60-day wait before suing state government, and wondered whether all of those provisions soon could be swept away.

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