A Victory for Victims of Medical Malpractice

Last year, as part of the "tort reform" hysteria, the Washington State Legislature passed a law that required anyone who was injured by the negligence of a doctor or hospital to file a "certificate of merit" signed by a doctor, which states that malpractice probably took place.

While this may seem like a reasonable requirement, in fact it placed an unreasonable burden on malpractice victims. The litigation process allows plaintiffs to interview not only the defendant doctors, but other witnesses (nurses, administrators, etc.) It is often these interviews which provide the missing evidence to establish that malpractice took place.

Under the new law, malpractice victims had to establish the likelihood that malpractice took place before they could even conduct the most basic discovery. This essentially changed the Court rules about who may file a lawsuit, and allowed the conspiracy of silence among health care providers to strip malpractice victims of the right to gather evidence and have their day in Court.

In a unanimous decision today, the Washington Supreme Court overturned this law as unconstitutional. The Court held that the requirement of a "certificate of merit" violated the right of malpractice victims to have access to the courts. The Court also held that the law violated separation of powers by interfering with the court's ability to establish its own rules on who may sue and how to file a lawsuit.

The Court stated in part:

"RCW 7.70.150 unduly burdens the right of medical malpractice plaintiffs to conduct discovery and, therefore, violates their right to access courts. In addition, RCW 7.70.150 changes the procedures for filing pleadings in a lawsuit, thereby jeopardizing the court's power to set court procedures. When the activity of one branch invades the prerogatives of another, there is a violation of the doctrine of separation of powers. The court must strike down this law because it violates the right of access to courts and conflicts with the judiciary's inherent power to set court procedures. We reverse the trial court's dismissal and remand for further proceedings."

For those who fear this decision will open the floodgates to frivolous medical malpractice claims, I say fear not. It is very expensive and time consuming to bring a medical malpractice case to court. Plaintiff's attorneys are only paid if they get a recovery for their clients. It would be foolish and reckless for an attorney to take a frivolous case to court. Further, existing rules already provide for sanctions against lawyers who advance frivolous legal arguments.

What this decision will do is allow those who have been injured as the result of medical malpractice to enjoy all of the legal rights and benefits of any other injured person, including the right to gather evidence with the Court's protection. Ultimately if the evidence doesn't show that there was malpractice, the case will be dismissed before it ever gets to a jury. However, if the protections of the court allow that key piece of evidence to be discovered which proves the case, then justice will have been served.

The right to trial by jury is one of the most fundamental rights we enjoy in this country. Any attempt to restrict or limit this right is a direct attack on our freedom and must be resisted with all the force we can muster.

Today is a great day for freedom in the State of Washington.

For those interested in reading the complete Court's opinion, here's the link:

http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=808881MAJ

As always, if you have questions about medical malpractice or any other matter involving personal injury, please check out my website, send me an email at matt@dubinlawoffice.com or just give me a call.