This month’s “Perspective” is a reprint of an article in WSMA Reports, July 31, 2008, from the WSMA Legal Resource Center, Tim Layton, Director.
The Center for Constitutional Litigation, the law firm for the national trial lawyers association, has intervened in a case challenging the constitutionality of the state’s certificate of merit statute (RCW 7.70.150). The statute requires that a medical malpractice plaintiff file with his or her complaint a certificate of merit for each defendant.
In this case a medical malpractice suit was filed against a large medical center and several of its physicians alleging delayed diagnosis of ovarian cancer in 2007. Plaintiff claims her primary care physician and her OB/GYN failed to properly diagnose and treat her ovarian cancer; and that two radiologists negligently interpreted her ultrasounds. It is also alleged that the medical center is vicariously liable through the care provided by “its agents, employees, physicians and nurses,” including those physicians identified above.
However, when plaintiff filed her complaint she filed only one certificate of merit. The certificate was from a radiologist, stating that the claims against the two defendant radiologists had merit. No certificate was filed as to the care of the primary care physician, OB/GYN or other agents, employees, etc. of the medical center. The plaintiff argued (1) that for vicarious liability claims only one certificate of merit was necessary for all defendants, and (2) the certificate of merit statute was unconstitutional.
The trial court ruled that the certificate of merit statute was not unconstitutional as applied in this case, and dismissed all vicarious liability claims against the medical center that were based upon the conduct of any health care provider for whom a certificate of merit had not been filed.
Why the case matters: The plaintiffs are seeking to have the state Supreme Court declare unconstitutional the certificate of merit requirement that was enacted as part of the SSHB 2292 legislative compromise that followed the unsuccessful I-330 and I-336 initiative campaigns. The statute has been cited as one of the causes for a reduced number of frivolous claims filed and the overall improvement in our medical malpractice insurance market.
In addition, should the plaintiffs succeed in convincing the court to put more flesh on the bones of any of the constitutional provisions plaintiffs have cited, so as to interpret any of them in a way that would render the certificate of merit provision unconstitutional, the court’s decision will likely impact, and place in jeopardy, other liability reform provisions that were included in SSHB 2292, or that the health care community or other liability reform advocates might seek to have enacted in the future.
The WSMA will be filing an amicus curiae memorandum in this case and encouraging other organizations to do the same.