Court voids statute requiring ‘certificate of merit’ in medical-malpractice cases

By Ketia B. Wick

Medical-malpractice plaintiffs in Washington need not file an expert’s "certificate of merit" to substantiate their claims when suing, the Washington Supreme Court has held.

In Putman v. Wenatchee Valley Med. Ctr., no. 80888-1 (Sept. 17, 2009), Kimmie Putman sued Wenatchee Valley Medical Center, alleging negligent failure to diagnose her ovarian cancer in 2001-02. She alleges that because her cancer was not diagnosed until 2005, she now has only a 40-percent chance of surviving the next five years. She sued without first filing a certificate of merit, as RCW 7.70.150, Washington’s medical-malpractice statute, requires. For that reason, the defendants moved to dismiss the action. The trial court granted the motion.

Putman petitioned for direct review to the Washington Supreme Court, arguing that RCW 7.70.150 was unconstitutional. The Supreme Court accepted review. Putman argued that the statute unduly burdens the right of access to courts and violates the separation of powers. The Court agreed with Putman on both counts.

“Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to courts,” the Supreme Court said. “Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims. Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed.” The Putman Court therefore held that the statute requiring the certificate of merit violates the people’s right of access to courts, which is “the bedrock foundation upon which rest all the people's rights and obligations.”