Wash. Supreme Ct. Overturns Law Setting 8-Year Deadline for Medical Malpractice Suits

By Jim Sams | December 8, 2023

The Washington Supreme Court ruled Thursday that a statute that bars medical malpractice lawsuits filed more than eight years after the date of injury violates the state constitution.

In a 7-2 opinion, the Supreme Court answered “yes” to a certified question from the US District Court that asked if the state’s statute of repose is unconstitutional. The majority rejected an argument from the defendant in the case, the United States government, that the court should follow the example of other state high courts that have upheld laws that establish an absolute deadline to file claims regardless of when the cause of the injury was discovered.

“We have already acknowledged that ‘[a] clear majority’ of other states have upheld ‘the constitutionality of medical malpractice statutes of repose,'” the opinion says, citing a previous ruling. “Nevertheless, we have previously declined ‘to draw generalizations’ from other jurisdictions ‘because the cases involve both state and federal constitutional claims . . . [and] the statutes vary widely.'”

The decision gives new life to a lawsuit filed by Bette Bennett, the wife of a US Navy service member who claims she suffered a traumatic brain injury as a result of medical malpractice at the Bremerton Naval Hospital on May 29, 2009. Bennett says she did not learn that the migraine headaches, light sensitivity, cognitive impairment and memory loss she suffers was a result of sinus surgery performed at the hospital until more than eight years later, when a neuropsychologist finally diagnosed her condition.

Bennett submitted an administrative claim with the Department of the Navy, as required by federal law, and filed a lawsuit after the claim was denied. The Navy moved to dismiss her complaint because it was not filed within eight years after the injury. The Revised Code of Washington 4.16.350(3) prohibits any cause of action for injuries caused by health care providers that is filed more than eight years after the procedure that allegedly caused the injury.

The US District Court for Western Washington was clearly sympathetic to her claim. The court ruled that Washington’s statute of repose was pre-empted by the Federal Tort Claims Act, but the 9th Circuit Court of Appeals overruled that decision. The court twice asked the Washington Supreme Court to rule whether the statute of repose complied with the state constitution. The high court refused to rule on the question the first time because the Tort Claims Act question had not yet been settled. After the 9th Circuit resolved that question, the District Court sent the Washington high court a certified question for the second time.

While Bennett awaited a decision, the state of Washington, Planned Parenthood, Cedar River Clinics and the Washington State Medical Association and Hospital Association filed amicus briefs urging the court to uphold the statute of repose.

The court’s majority decided that the statute of repose violates Article 1, Section 12 of the Washington Constitution, which guarantees equal protection to all citizens. The court said while similar to the US Constitution’s 14th Amendment, article 1, section 12 of Washington’s constitution also “prevents favoritism and special treatment to a few while disadvantaging others.”

The majority said the statute of repose implicates “a fundamental right to pursue a common law cause of action.” Any law that grants a privilege or immunity just be supported by a “reasonable ground,” the opinion says. The statute of repose did not meet the test.

The opinion says the Legislature first adopted an eight-year statute of repose in 1976. The law was amended several times before the state Supreme Court ruled it was unconstitutional in 1998. The Legislature enacted the current version of the law in 2006. Lawmakers decreed, in an effort to address the Supreme Court’s concerns, that the law was necessary to control the cost of medical malpractice insurance and to protect defendants from “stale claims.”

The decision Thursday holds that the new statute also fails to meet the reasonable ground test.

Justices Barbara A. Madsen and Associate Cheif Justice Charles W. Johnson dissented, writing in a separate opinion that the court should not have rejected “the legislature’s articulated rationale” for adopting the statute of repose.

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