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.”

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."

Proof of parents' wrongful-death claims made easier

By Keith J. Kuhn

A Washington statute requires that parents who sue for wrongful death of their adult child prove that they were dependent on the child for support. Parents may meet that proof requirement by showing that the child performed valuable services and need not prove regular monetary contributions by the child, the Washington Supreme Court has held.

In Armantrout v. Carlson, 18-year-old Kristen Armantrout died of a pulmonary embolism after ankle surgery. At the time of her death, Kristen lived with her parents. She provided many services to her mother, Josie, who was diabetic and blind. Kristen was Josie’s driver and reader, took Josie’s glucose readings, and gave her insulin injections. Kristen also contributed her disability check of $588 per month to the household’s finances.

After her death, Kristen’s estate and her parents sued her orthopedic surgeons for medical malpractice, which they alleged had caused Kristen’s ensuing death.

Because Washington’s wrongful-death statute requires proof that plaintiff-parents of an adult decedent prove that they were “dependent for support” on the decedent, the defendants moved to dismiss the parents’ wrongful-death claim, arguing that the parents could not prove substantial financial dependence on Kristen as of the time of her death. The trial court disagreed, deciding that there was a factual dispute on that point that the jury must decide. The jury later returned a verdict of $200,000 to Kristen’s estate and another $1.15 million to her parents.

The defendants appealed. The Court of Appeals reversed the $1.15 million portion of the verdict, holding that merely “conferring services and other benefits does not constitute financial support.” The Court of Appeals held that “dependence” on the adult child did not include services. The Armantrouts successfully petitioned the Supreme Court for review of the issue.

The Supreme Court noted that RCW 4.20.020 establishes two tiers of beneficiaries. The first tier includes the decedent’s spouse or domestic partner, children, and stepchildren. First-tier beneficiaries need not prove dependence on the decedent for support. The statute provides that if no first-tier beneficiaries exist, a wrongful-death action may proceed for the benefit of parents or siblings “who may be dependent upon the deceased for support.” The statute does not define “dependent” or “support.”

The Court surveyed its prior decisions dating back to 1927. In the most recent case, Philippides v. Bernard, 151 Wn.2d 376 (2004), the Court had held that the parents must show more than emotional support. The cases generally have allowed claims by second-tier beneficiaries who can prove that they needed the decedent’s regular contributions of support, which typically were monetary. Those financial contributions must be more than occasional or casual gifts.

The defendants in Armantrout argued that the parents must prove “the provision of money or income, and not merely services.” The Court disagreed. The Court noted that in other reported decisions, plaintiffs proved substantial dependency by showing that the decedent had provided services that had a monetary value, not just an emotional one. But “our holding in Philippides, requiring parents to show something more than emotional dependence on adult children, should not … preclude truly dependent parents from claiming beneficiary status.”

Here, Kristen provided services that the jury concluded had a dollar value of more than $36,000 per year. That was enough to support the conclusion that the parents were dependent on her for support. The Court reversed the Court of Appeals and ordered the parents’ $1.15 million portion of the verdict reinstated.

Around The Firm

In Lujan v. XYZ Corp., Philip B. Grennan and Janis G. Pelletier won a motion for summary judgment in a premises-liability case. The plaintiff alleged that XYZ Corp. failed to maintain reasonably safe conditions on its property for its invitees because plaintiff slipped and fell on liquid on the floor. Plaintiff had no proof of who spilled the liquid or how long the liquid had been present on the floor. Phil and Janis proved that the spill occurred in an area that was not a self-service area, so plaintiff was not relieved of proving that XYZ Corp. had notice of the spill, which she could not. The court granted their motion and dismissed the case. … Bradley D. Westphal recently was awarded a defense award in arbitration in LaCourse v. Toney. In this multiple-car rear-end case, his client was rear-ended and pushed into the plaintiff’s vehicle. Two other defendants were found liable for the accident and plaintiff’s injuries. The arbitrator agreed that Brad’s client did not cause and/or contribute to the accident.

Jeffrey P. Downer has been selected for inclusion in the 2009 edition of The Best Lawyers in America, in the Professional Malpractice Law area of practice. Selection to Best Lawyers is based on an exhaustive and rigorous peer-review survey comprising more than 2.8 million confidential evaluations by the top attorneys in the country. American Lawyer describes Best Lawyers as “the most respected referral list of attorneys in practice.” Jeff joins Lee Smart attorney David L. Martin, who has been listed in Best Lawyers every year since it began publishing 25 years ago. … Washington Law & Politics magazine continues to recognize Lee Smart’s up-and-coming younger lawyers. The magazine’s Rising Stars for 2009 include Lee Smart lawyers Marc Rosenberg, Eric L. Lewis, and Timothy D. Shea.

Jeff Downer and Tim Shea won summary judgment in Orr v. Richardson, a real estate professional-liability action. Plaintiffs attempted to buy a waterfront home. The sellers wanted to retain one of the three lots on the property, so a boundary-line adjustment was needed. The parties entered into an agreement that provided for a purchase price of $2.3 million and that the specific property being conveyed depended on completion of the boundary-line adjustment. When the transaction failed to close, the buyers sued the sellers, as well as Jeff and Tim’s client, the sellers’ real estate agent and broker, for misrepresentation and other causes of action. Among other things, plaintiffs alleged that the sellers’ agent misled them about the involvement of the sellers’ maintenance person at the property, who the buyers wrongly assumed was a real estate agent. Early in the case, the court held that there was no binding agreement between buyers and sellers because there was no meeting of the minds as to the specific property being conveyed. Jeff and Tim later moved for summary judgment, arguing that the economic-loss rule barred plaintiffs’ claims; that without a binding agreement, the buyers had no justification for relying on any supposed misrepresentations; and that plaintiffs had suffered no damages, especially since the property’s value had declined in the meantime. The court agreed with all of Jeff and Tim’s arguments and dismissed the action. Their motion for CR 11 attorney fees is pending.

August G. Cifelli and William R. Kiendl obtained dismissal of plaintiff’s claims against their client in Sipin v. King County, et al. Gus and Bill’s client, an accident reconstructionist, provided testimony for a prosecutor, resulting in the criminal defendant’s vehicular-homicide conviction. The criminal defendant later won reversal of his conviction and filed a civil rights lawsuit under 42 U.S.C. § 1983 against several parties. Gus and Bill, working with other counsel, first successfully moved for summary judgment of dismissal of the civil-rights plaintiff’s state-law claims. Gus and Bill then filed a summary judgment motion on the plaintiff’s remaining federal-law claims. Rather than oppose the federal motion, the civil rights plaintiff agreed to dismiss his claims against motion, the civil-rights plaintiff agreed to dismiss his claims against the accident reconstructionist. Gus and Bill are pursuing attorney fees and litigation costs on behalf of their client.

Gregory P. Turner and Shaunna H. Gutina won summary judgment in Van Hoven v. Pre-Employee.com. Plaintiff was hired by a hospital, contingent on passing a background check. Plaintiff failed to disclose his criminal background. An adverse report came back from the defendant. Plaintiff was called in to the hospital’s human resources department and asked to explain why a report showed that he had been found guilty of two drug convictions and his application signed under penalty of perjury did not. Plaintiff admitted that he knew about the drug conviction and had no explanation for failing to disclose it. Had plaintiff disclosed the drug conviction when he applied for the job, the hospital would not have even interviewed him much less hired him. The hospital then terminated plaintiff. Plaintiff sued the background-check company, alleging that its report overstated the scope of the drug conviction. The background check suggested that plaintiff had been found guilty of possession of both marijuana and drug paraphernalia, when in fact he had pleaded guilty only to teh latter charge. Greg and Shaunna moved for summary judgment, pointing out that their client's procedures were governed by the Fair Credit Reporting Act and had fully complied with FRCA’s requirements. The court agreed that there was no evidence of violation of FRCA and that there was no proximate cause because plaintiff admittedly lied on his job application and dismissed the action.