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

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The Court then considered whether the legislature’s requiring a certificate of merit violated the separation of powers. Putman argued that the statute encroached on the judiciary’s power to set court rules that set out pleading requirements. The Court noted that Washington’s Constitution does not contain an express separation-of-powers provision. But the Supreme Court nevertheless has observed such a separation of powers in several cases in the past 15 years. “Some fundamental functions are within the inherent power of the judicial branch,” the Court noted, “including the power to promulgate rules for its practice.”

The defendants argued that medical-malpractice cases are “special proceedings” that separate court rules govern and that are not inherent in the court’s powers. The Court disagreed. Special proceedings are those that the legislature has created or “completely transformed,” such as mandamus or worker’s compensation. But “malpractice claims are fundamentally negligence claims, rooted in the common law tradition,” the Court concluded.

The Court decided that the statutory certificate of merit directly conflicts with Civil Rule 11, which states that attorneys do not have to verify pleadings, and with CR 8, which sets out rules of pleading.

Justices Barbara Madsen and Jim Johnson concurred only as to the separation-of-powers issue. They asserted that the majority needlessly addressed litigants’ right of access to the courts, which was “both unnecessary and problematic.” They asserted that addressing access to the courts “will result in an excessively broad interpretation of the right in the future."