Court strikes down law requiring notice before malpractice suit

By Rebecca S. Iszak

The statute that requires medical-malpractice plaintiffs to provide 90 days’ notice to a healthcare provider before suing is unconstitutional, the Washington Supreme Court has held. The Court found that the statute violates the Washington Constitution’s separation of powers between the legislative and judiciary.

In two consolidated appeals, Waples v. Yi and Cunningham v. Nicol, No. 82142-9 (July 1, 2010), the Court was asked to determine the constitutionality of the 90-day notice requirement established by the legislature in RCW 7.70.100(1) for medical malpractice cases. In Waples, the plaintiff failed to provide the healthcare provider with the 90-day notice under the statue before commencing suit. In Nicole, although the notice was provided, the plaintiff did not wait the entire 90-day period and filed her case 16 days after service of the notice in order assure that her case was filed within the statute of repose. The trial courts dismissed both cases, Waples for failing to send the notice and Nicole for failing comply with the 90-day waiting period required by RCW 7.70.100(1).

Both appellants challenged the constitutionality of the 90-day notice requirement of RCW 7.70.100(1) based upon the Supreme Court’s decision in Putnam v. Wenatchee Valley Med. Ctr., 166 Wn.2d 974 (2009). In Putnam, the Court struck down the requirement that medical malpractice plaintiffs obtain a “certificate of merit” showing expert testimony supporting the merit of the case before filing of a medical-malpractice action.

Applying reasoning that resembled its decision in Putnam, the Court reviewed whether the 90-day notice provision of RCW 7.70.100(1) conflicted with the court rules that only the Supreme Court may establish, and if so, whether the conflict involves procedural or substantive law. One of those court rules, CR 3(a), governs the commencement of civil actions The Court found a conflict between the CR 3(a) and RCW 7.70.100, as the 90-day notice requirement added “an additional step” prior to the commencement of a lawsuit, which CR 3(a) did not require. Further, such notice, if not provided, would be fatal to the lawsuit even when the complaint was properly filed and served pursuant to CR3(a).

The Court further held that the additional requirement of the 90-day notice conflicted with the courts’ procedural rules because the notice addressed “how to file a claim and enforce a right provided by law.” When there is a conflict between a procedural law and a court rule that cannot be harmonized, the court rule prevails. Holding that the court rule and the statute could not be harmonized and the court rule must take precedence, the Waples Court held that the legislature’s imposition of the 90-day notice period violated the separation of powers because the statute interfered with the judiciary’s power to set court procedures.
With this ruling, the Washington Supreme Court has now removed both requirements that the legislature enacted to provide incentive to medical-malpractice plaintiffs to settle cases before resorting to litigation.

Res ipsa relieves plaintiff of proof of premises liability

By Bradley D. Westphal

The doctrine of res ipsa loquitur may raise the inference that a defendant property owner was negligent in causing an invitee’s personal injury, the Washington Supreme Court has held.

In Curtis v. Lein, no. 83307-9 (Sep. 16, 2010), Tambra Curtis lived with her boyfriend on a farm owned by Jack and Claire Lein. The boyfriend managed the farm. Curtis walked onto a 15-year-old dock on a pond on the property. The dock’s boards collapsed, and Curtis broke her leg. The Leins were selling the property, and the dock was no longer needed, so they ordered it removed. As a result, any evidence of why the dock collapsed was destroyed.

Curtis sued the Leins and argued that res ipsa loquitur, an inference that defendant was negligent, should apply. Courts apply res ipsa sparingly, and only if the accident ordinarily would not occur absent negligence, the defendant had exclusive control of the instrumentality that caused it, and plaintiff was free of fault. The Leins argued that latent causes other than their fault, such as defective construction, could have caused the collapse. The trial court agreed and dismissed the action, and the Court of Appeals affirmed.

The Supreme Court reversed, holding that no proof of other causes existed. The res ipsa inference applied, and at trial the jury could weigh the evidence accept or reject that inference.

Around The Firm

David L. Martin and Craig L. McIvor won a three-week jury trial in a medical-malpractice case, Callahan v. Ballard Emergency Group. Plaintiff claimed that an emergency-room physician failed to diagnose heart disease in a 55-year-old. The decedent was seen at the Ballard Swedish emergency room for chest pain. His cardiac enzyme studies were negative. His regular physicians saw him twice in the following days. Six days after his emergency-room visit, he died of ventricular fibrillation. Plaintiff sued several healthcare providers who “settled around” Dave and Craig’s client, leaving their client as the sole defendant at trial and forcing them to prove the fault of the defendants who had settled. Plaintiff asked the jury for $14 million in damages. After a day of deliberations, the jury returned a defense verdict. … Craig L. McIvor obtained defense verdicts in a Consumer Protection Act case against a physician specializing in interventional pain practice. In approximately 2000, the defendant began performing endoscopic microdiscectomy in his day-surgery facility. In 2006, at the urging of several local neurosurgeons and spine surgeons, state medical authorities summarily suspended his license, and then imposed significant restrictions on his performing this procedure. Several lawsuits followed. This case involved four plaintiffs. With the support of two of these same local physicians, plaintiffs argued that the defendant was not qualified to perform this procedure and that the defendant promised that he would cure their back pain. Plaintiffs sought damages, including attorneys’ fees, under the Consumer Protection Act. After two weeks of trial, the jury returned defense verdicts in all four cases.

Deborah A. Severson won summary judgment in a complex legal-malpractice case in federal court, Caldwell v. City of Bellingham, et al. Plaintiff Caldwell was the maternal grandmother of Z.A., a minor. Caldwell alleged that the City of Bellingham, its officers, and Deb’s attorney client, Kingsley, conspired to violate her civil rights to a “familial” relationship with Z.A. The minor’s father was deceased, and he was living with his mother and her convicted felon boyfriend. Z.A.’s mother died of a heroin overdose and he remained in the custody of the boyfriend. Kingsley represented Z.A.’s paternal grandmother and obtained a temporary order granting custody of Z.A. to the paternal grandparents. Kingsley requested that police provide “civil standby” while the order was served on Caldwell following the funeral of Z.A.’s mother. After the funeral, Kingsley served the order on Caldwell. Caldwell refused to comply with the order and tried to leave the funeral with Z.A.; surrounded by a crowd of 20-40 people attempting to block the two officers from Caldwell and Z.A. The officers arrested Caldwell after she refused to stop or speak with them, and Z.A. left the funeral with Kingsley’s clients. Caldwell alleged that defendants violated her rights under 42 U.S.C. § 1983, the federal Civil Rights Act, alleging that she was Z.A.’s “de facto” parent and had a constitutionally protected right to familial integrity. Caldwell alleged that Kingsley was liable on the grounds that she conspired or acted in concert with the police. All parties filed motions for summary judgment. U.S. District Court Judge Robert Lasnik granted defendants’ motions, ruling that Caldwell was not a “de facto” parent and thus had no protectable liberty interest; and that Kingsley was not a “state actor” under § 1983.

Bradley D. Westphal recently tried Hokanson v Schell, a four-day jury trial. Plaintiff shattered his ankle when he put his foot through a porch stair in defendant’s rental house. Plaintiff’s past and future medical bills exceeded $61,000. Plaintiff’s counsel asked the jury for $900,000 at trial. The jury returned a verdict of $151,155.10 and then reduced that by 35% due to plaintiff’s contributory negligence. The jury’s verdict was less than Brad’s pretrial settlement offer of $100,000. … Brad Westphal also won a motion for summary judgment in Wherret v White, in which plaintiff claimed civil harassment, malicious harassment, outrage, and negligent infliction to the police. Defendant had earlier received an anti-harassment order against plaintiff and believed that plaintiff was violating it. Brad argued that the court should dismiss plaintiff’s suit pursuant to RCW 4.24.510, which grants immunity to a person who communicates a complaint or information to any branch or agency of federal, state or local government. The court granted the motion and awarded attorney fees to Brad’s client.

Jennifer R. Porto and Joel E. Wright won summary judgment in McCoy v. Ott, a legal-malpractice action. Plaintiffs McCoy owned property next to a mining operation. Plaintiffs alleged that after the owner of the mining operation died, they learned that the operation was taking their land. Plaintiffs retained attorney Dennis Ott to file a creditors’ claim against the mine owner’s estate. Ott filed the claim, which the estate rejected. Ott then sued the estate on behalf of the McCoys. The case was later dismissed. Plaintiffs sued Ott for legal malpractice, alleging that they would have obtained a judgment of $480,000 but for his negligence. Jennifer and Joel argued that statute of limitations barred the McCoys’ claim before they ever retained Ott. The creditor’s claim statute provides two deadlines for filing a creditor’s claim based on the creditor’s status. A reasonably ascertainable creditor has 24 months to file a claim, whereas a creditor who is not reasonably ascertainable must file within four months. The McCoys argued that they were reasonably ascertainable creditors, and therefore their claim was timely, as it was filed within the 24-month period. Jennifer and Joel argued that the McCoys were not reasonably ascertainable creditors, so that the four-month limitation applied. The court agreed and held that the plaintiffs could not prove proximate causation because any action or inaction by Ott had no effect on the plaintiffs’ ultimate recovery.

Philip B. Grennan and Rosemary J. Moore won a defense verdict on behalf of King County in Ferguson v. The Lakeside Group, an indemnity-contract action by a cross-claim plaintiff. King County had rented scaffolding equipment from Safway Services for a concert. A worker fell from the scaffolding and later sued. Safway won a defense verdict but pursued indemnity against King County based on terms in a “rental agreement” that it had provided to King County when delivering the scaffolding. The document stated that King County must defend, hold harmless, and indemnify Safway and pay its attorney fees. However, that language appeared on the reverse side of the documentation, which was never provided to King County. At the end of the trial on the indemnity claim, the court agreed with Phil and Rosemary that no one from King County had ever agreed to the indemnity terms and rejected Safway’s request for more than $500,000 in attorney fees.

Keith J. Kuhn received a voluntary dismissal with prejudice in Ku v. Lee v. Long, an accounting-malpractice case. Keith’s client was the cross-claim defendant, Long, who allegedly breached its fiduciary duties and committed professional malpractice by disclosing unauthorized information to the Washington State Liquor Control Board. The Board in turn caused the cross-claim plaintiff, Lee, a local restaurant, to lose its beverage license and close its doors. Keith established that Lee’s claim against his client was frivolous and a violation of CR 11. Keith also established that Lee had withheld critical evidence throughout pretrial discovery.

Jeffrey P. Downer and Eric L. Lewis won summary judgment in Kloster v. Roberts, a claim of misrepresentation in the sale of acreage. Plaintiffs alleged that defendant seller committed negligent misrepresentation, fraud, and faudulent concealment because a 60-foot easement was defective and proved to be only 30 feet wide. Plaintiffs alleged that the remaining 30 feet were unusable. Jeff nd Eric argued that the seller, who had inherited the property from her father, had not been on the property since she was a child and knew nothing about the condition of the easement, so that plaintiffs could not proved any of their legal theories. The court agreed and dismissed all claims against the seller.