DeYoung v. Providence Medical Center
| Decision Date | 14 October 1998 |
| Docket Number | No. 65373-9,65373-9 |
| Citation | 136 Wn.2d 136,960 P.2d 919 |
| Court | Washington Supreme Court |
| Parties | Shirlee DeYOUNG, Appellant, v. PROVIDENCE MEDICAL CENTER; J.T. Griffin, M.D., his wife, and the marital community thereof; and Unknown John Does, Respondents. |
Bennett, Bigelow & Leedom, Elizabeth Leedom, Carol S. Janes, Seattle, Amicus Curiae on behalf of Washington Defense Trial Lawyers.
Bryan P. Harnetiaux, Harbaugh & Bloom, Gary N. Bloom, Debra Stephens, Daniel E. Huntington, Spokane, Amicus Curiae on behalf of Washington State Trial Lawyers Association.
Luvera, Barnett, Brindley, Beninger & Cunningham, Joel D. Cunningham, Seattle, James L. Holman & Assoc., Daniel W. Ferm, Tacoma, for Appellant.
Lee, Smart, Cook, Martin & Patterson, David L. Martin, Karen Kalzer, Wilson, Smith & Cochran, Kathy Cochran, David M. Jacobi, Seattle, for Respondents.
Plaintiff Shirlee DeYoung appeals from summary judgment granted on the ground that the eight-year statute of repose in RCW 4.16.350(3) bars her negligence action. Plaintiff contends that the repose provision violates the privileges and immunities clause of the Washington State Constitution and denies access to the courts. We find the statute of repose unconstitutional because it violates the privileges and immunities clause. Accordingly, we reverse the summary judgment.
Ms. DeYoung alleges that Dr. J.T. Griffin negligently administered radiation treatment to her eyes in 1980 and that Providence Medical Center is liable for Dr. Griffin's malpractice under a theory of corporate negligence. She asserts that she learned in 1995 that the radiation treatment caused injury to her right eye, and learned in 1996 that her left eye was injured as well. She sued defendants in August 1996.
Dr. Griffin and Providence moved for summary judgment, arguing that the eight-year repose provision in RCW 4.16.350(3) bars Ms. DeYoung's suit. Ms. DeYoung argued that the repose provision is unconstitutional. The trial court granted defendants motions and dismissed the action.
This court granted Ms. DeYoung's motion for direct review. The Washington State Trial Lawyers' Association and the Washington Defense Trial Lawyers have filed amici curiae briefs.
Review of summary judgment is de novo, with the appellate court engaging in the same inquiry as the trial court. DeWater v. State, 130 Wash.2d 128, 133, 921 P.2d 1059 (1996). Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
Plaintiff maintains that the eight-year statute of repose in RCW 4.16.350(3) violates the privileges and immunities clause of the Washington Constitution. She maintains that the provision arbitrarily denies the benefits of the discovery rule to a small class of adult medical malpractice claimants who cannot reasonably discover their injuries within eight years of the alleged negligent act or omission. RCW 4.16.350(3) provides that medical malpractice actions
shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later, except that in no event shall an action be commenced more than eight years after said act or omission....
The state privileges and immunities clause, article I, section 12 of the Washington State Constitution, provides that "[n]o law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."
The initial inquiry is the standard of review which applies to plaintiff's privileges and immunities claim. Plaintiff first argues that settled law establishes that her article I, section 12 challenge should be assessed under a heightened scrutiny standard. She maintains that the court has already determined that heightened scrutiny applies where an important right or a semi-suspect class is involved, citing State v. Shawn P., 122 Wash.2d 553, 560, 859 P.2d 1220 (1993), and that this court has held that the right to be indemnified for personal injuries is a substantial individual property right, citing Hunter v. North Mason High Sch., 85 Wash.2d 810, 814, 539 P.2d 845 (1975). Under a heightened scrutiny standard, she maintains, the repose provision falls.
However, despite plaintiff's contention, it is not settled law that intermediate scrutiny applies in this case. In a number of recent cases we have held that intermediate scrutiny will be applied only where a statute implicates both an important right and a semi-suspect class not accountable for its status. E.g., State v. Schaaf, 109 Wash.2d 1, 17-18, 743 P.2d 240 (1987); In re Personal Restraint of Runyan, 121 Wash.2d 432, 448, 853 P.2d 424 (1993); Westerman v. Cary, 125 Wash.2d 277, 294, 892 P.2d 1067 (1994); Griffin v. Eller, 130 Wash.2d 58, 65, 922 P.2d 788 (1996). The group affected by the statute of repose is not a semi-suspect class. Included in the class barred by the eight-year statute of repose are those who choose not to bring an action, those who have slept on their rights, and those who have not diligently investigated their cause of action. Thus, many of the persons whose actions are barred by the repose provision are accountable for the fact that their claims are barred. Further, plaintiff has not explained what characteristics of the class identify it as a semi-suspect class.
Moreover, in Hunter, it is unclear what level of scrutiny the court applied, as noted later in Daggs v. City of Seattle, 110 Wash.2d 49, 56, 750 P.2d 626 (1988). Hunter involved a claims filing statute, and, as also indicated in Daggs, more recent decisions suggest a minimum scrutiny analysis applies in assessing such statutes. Id. Thus, Shawn P. and Hunter do not justify a conclusion that Washington law is already settled that intermediate scrutiny applies in assessing plaintiff's privileges and immunities challenge.
Plaintiff next argues that the state constitution should be interpreted independently of the Equal Protection Clause and that under an independent state constitutional analysis heightened scrutiny should be applied. She presents a Gunwall argument in support of this contention. See State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). The first two Gunwall factors involve an analysis of the textual language of the state constitutional provision and a comparison of the federal equal protection clause and the state privileges and immunities clause. The court has recently noted that while there are differences in the provisions, these differences do not require an independent state analysis; "this court has repeatedly found these provisions substantially similar and treated them accordingly." Seeley v. State, 132 Wash.2d 776, 788, 940 P.2d 604 (1997) (citing cases). Plaintiff states, however, that the framers of the state constitution were primarily concerned with fundamental rights, and this concern is closely related to the judicial system's enforcement of those rights. While article I, section 1 does state the intent that governments are to establish and maintain rights, the state constitution goes on to enumerate constitutional rights in article I, sections 2-32 but does not include pursuit of a tort claim within those enumerated rights.
The third factor involves examination of the state constitutional and common law history of the privileges and immunities clause. See Gunwall, 106 Wash.2d at 65-66, 720 P.2d 808; Seeley, 132 Wash.2d at 788, 940 P.2d 604. Plaintiff reasons this factor neither favors nor disfavors independent analysis because such history is lacking. The fourth factor concerns preexisting state law. "Previously established bodies of state law, including statutory law, may also bear on the granting of distinctive state constitutional rights." Gunwall, 106 Wash.2d at 61, 720 P.2d 808. Plaintiff does not address the fourth factor. Providence argues that preexisting state law supports the principle that a boundary can be set which cuts off a tort claim regardless of when discovery of a cause of action occurs. Until 1969, when the court adopted the discovery rule for medical malpractice actions in Ruth v. Dight, 75 Wash.2d 660, 666, 453 P.2d 631 (1969), superseded by statute as stated in Teeter v. Lawson, 25 Wash.App. 560, 610 P.2d 925 (1980),a cause of action could accrue and the statute of limitations expire without a patient knowing of injury. E.g., Lindquist v. Mullen, 45 Wash.2d 675, 277 P.2d 724 (1954), overruled by Ruth v. Dight, 75 Wash.2d 660, 453 P.2d 631. Plaintiff does not dispute that this was the status of the law when the state constitution was enacted. Preexisting state law indicates that there is no bar to absolutely foreclosing a cause of action where one has been injured by medical malpractice.
Plaintiff maintains the fifth and sixth factors strongly favor independent state analysis. The fifth Gunwall factor addresses the structural differences between the state and federal constitutions. This factor always favors an independent state analysis. Seeley, 132 Wash.2d at 789-90, 940 P.2d 604. The sixth factor requires examining whether the subject matter is local in character or, alternatively, whether there appears to be need for national uniformity. Gunwall, 106 Wash.2d at 62, 720 P.2d 808. Plaintiff points to article I, section 1, which provides that the branches of government, including the judicial branch, "are established to protect and maintain individual rights" and urges that the right to be indemnified is a substantial property right, citing Hunter. She maintains...
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