Putman v. Wenatchee Valley Medical Center, No. 80888-1.

CourtUnited States State Supreme Court of Washington
Writing for the CourtOwens
Citation166 Wn.2d 974,216 P.3d 374
PartiesKimme PUTMAN, Appellant, v. WENATCHEE VALLEY MEDICAL CENTER, P.S., a Washington professional service corporation; Patrick J. Wendt, M.D.; David B. Levitsky, M.D., Respondents, and Shawn C. Kelley, M.D.; John Doe No. 1; John Doe No. 2; Jane Doe No. 1; and Jane Doe No. 2, Defendants.
Docket NumberNo. 80888-1.
Decision Date17 September 2009
216 P.3d 374
166 Wn.2d 974
Kimme PUTMAN, Appellant,
v.
WENATCHEE VALLEY MEDICAL CENTER, P.S., a Washington professional service corporation; Patrick J. Wendt, M.D.; David B. Levitsky, M.D., Respondents, and
Shawn C. Kelley, M.D.; John Doe No. 1; John Doe No. 2; Jane Doe No. 1; and Jane Doe No. 2, Defendants.
No. 80888-1.
Supreme Court of Washington, En Banc.
Argued February 24, 2009.
Decided September 17, 2009.

[216 P.3d 375]

Ron Perey, Douglas T. Weinmaster, Perey Law Group, Carla Tachau Lawrence, Attorney at Law, Seattle, WA, Robert S. Peck, Center for Constitutional Litigation PC, Washington, DC, for Appellant.

Sherry Hemming Rogers, Lee Smart, Michael Neil Budelsky, Pamela A. Okano, Reed McClure, Attorneys at Law, Seattle, WA, for Respondents.

[216 P.3d 376]

Mary H. Spillane, Daniel W. Ferm, William Kastner & Gibbs, Seattle, WA, Amicus Curiae on behalf of American Medical Association, King County Medical Society, Physicians Insurance, Pierce County Medical Society, Thurston County Medical Society, Walla Walla Valley Medical Society, Washington Academy of Physician Assistants, Washington Casualty Company, Washington State Medical Association, Washington State Medical Oncology Society, Washington State Orthopedic Association and Yakima County Medical Society.

Bryan Patrick Harnetiaux, Attorney at Law, Gary Neil Bloom, Harbaugh & Bloom PS, Spokane, WA, Kelby Dahmer Fletcher, Peterson Young Putra, Seattle, WA, Amicus Curiae on behalf of Washington State Association for Justice Foundation.

OWENS, J.


¶ 1 Appellant Kimme Putman sued respondents for negligently failing to diagnose her ovarian cancer. The trial judge dismissed her lawsuit because she failed to file a certificate of merit from a medical expert, as required for medical malpractice lawsuits under RCW 7.70.150. Putman challenges the constitutionality of the certificate of merit requirement on a number of grounds. We hold that RCW 7.70.150 is unconstitutional because it unduly burdens the right of access to courts and violates the separation of powers.1

FACTS

¶ 2 In 2007, Putman filed a lawsuit against Wenatchee Valley Medical Center and several of its employees, alleging that they negligently failed to diagnose her ovarian cancer in 2001 and 2002. She alleges that the delay in her diagnosis until 2005 caused her to miss the opportunity to undergo early treatment, and that she now has a 40 percent likelihood of surviving the next five years. The trial court dismissed Putman's claims because she failed to file a certificate of merit as required by the state's medical malpractice litigation statute, RCW 7.70.150. The trial court also held that the certificate of merit requirement is constitutional. Putman appealed the ruling directly to this court, alleging that RCW 7.70.150 is unconstitutional because, inter alia, it unduly burdens the right of access to courts and violates the separation of powers.

ISSUES

¶ 3 1. Does RCW 7.70.150 unduly burden the right of access to courts?

¶ 4 2. Does RCW 7.70.150 irreconcilably conflict with procedural court rules and therefore violate the separation of powers?

STANDARD OF REVIEW

¶ 5 We review the constitutionality of a statute de novo. State v. Abrams, 163 Wash.2d 277, 282, 178 P.3d 1021 (2008).

ANALYSIS

I. Does RCW 7.70.150 Unduly Burden the Right of Access to Courts?

¶ 6 "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803). The people have a right of access to courts; indeed, it is "the bedrock foundation upon which rest all the people's rights and obligations." John Doe v. Puget Sound Blood Ctr., 117 Wash.2d 772, 780, 819 P.2d 370 (1991). This right of access to courts "includes the right of discovery authorized by the civil rules." Id. As we have said before, "[i]t is common legal knowledge that extensive discovery is necessary to effectively pursue either a plaintiff's claim or a defendant's defense." Id. at 782, 819 P.2d 370.

216 P.3d 377

¶ 7 Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to courts. Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims. Id. 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. Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts. It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people. Id. at 780, 819 P.2d 370. Accordingly, we must strike down this law.

II. Does RCW 7.70.150 Violate the Separation of Powers?

¶ 8 Putman contends that RCW 7.70.150's certificate of merit requirement violates the separation of powers because it conflicts with CR 8 and 11 regarding pleading requirements and thereby encroaches on the judiciary's power to set court rules. Wenatchee Valley Medical Center argues that RCW 7.70.150 does not conflict with CR 8 and 11 and that, even if it did, CR 8 and 11 do not apply because medical malpractice claims are special proceedings. See CR 81(a) (exempting special proceedings from civil rules).

¶ 9 The Washington State Constitution does not contain a formal separation of powers clause, but "`the very division of our government into different branches has been presumed throughout our state's history to give rise to a vital separation of powers doctrine.'" Brown v. Owen, 165 Wash.2d 706, 718, 206 P.3d 310 (2009) (quoting Carrick v. Locke, 125 Wash.2d 129, 135, 882 P.2d 173 (1994)). The doctrine of separation of powers divides power into three co-equal branches of government: executive, legislative, and judicial. City of Fircrest v. Jensen, 158 Wash.2d 384, 393-94, 143 P.3d 776 (2006), cert. denied, 549 U.S. 1254, 127 S.Ct. 1382, 167 L.Ed.2d 162 (2007). The doctrine "`does not depend on the branches of government being hermetically sealed off from one another,'" but ensures "that the fundamental functions of each branch remain inviolate." Hale v. Wellpinit Sch. Dist. No. 49, 165 Wash.2d 494, 504, 198 P.3d 1021 (2009) (quoting Carrick, 125 Wash.2d at 135, 882 P.2d 173). If "`the activity of one branch threatens the independence or integrity or invades the prerogatives of another,'" it violates the separation of powers. Fircrest, 158 Wash.2d at 394, 143 P.3d 776 (internal quotation marks omitted) (quoting Moreno, 147 Wash.2d at 505-06, 58 P.3d 265).

¶ 10 Some fundamental functions are within the inherent power of the judicial branch, including the power to promulgate rules for its practice. Id.; In re Disbarment of Bruen, 102 Wash. 472, 476, 172 P. 1152 (1918). If a statute appears to conflict with a court rule, this court will first attempt to harmonize them and give effect to both, but if they cannot be harmonized, the court rule will prevail in procedural matters and the statute will prevail in substantive matters. Fircrest, 158 Wash.2d at 394, 143 P.3d 776.

¶ 11 Thus, this court must determine whether RCW 7.70.150 can be harmonized with this court's rules. If it cannot, the court rule will prevail under the separation of powers doctrine if RCW 7.70.150 involves fundamentally procedural matters. But first, the court must determine if the civil rules even apply to medical malpractice proceedings or if, instead, medical malpractice proceedings are now "special proceedings" and therefore exempt from the civil rules.

A. Are medical malpractice proceedings special proceedings and therefore exempt from the civil rules?

¶ 12 Wenatchee Valley Medical Center contends that medical malpractice proceedings are special proceedings and therefore exempt from CR 8 and 11 under CR 81(a), which states that "[e]xcept where inconsistent with rules or statutes applicable to special proceedings, these rules shall govern all civil proceedings." (Emphasis added.) The term "special proceedings" is not defined within the rule. This court has not set out a rule for determining whether a proceeding is ordinary or special, but Washington courts have identified certain actions as special proceedings, including lien foreclosures, sexually

216 P.3d 378

violent predator petitions, garnishment, will contests, and unlawful detainer actions.2

¶ 13 Wenatchee Valley Medical Center argues that medical malpractice proceedings are "special proceedings" because the legislature has set out statutory requirements for filing medical malpractice cases. This argument is unsustainable because it places no limits on the ability of the legislature to determine procedural rules. Under this standard, the legislature could reclassify any common law action as a special proceeding by passing statutes regulating its procedures, thereby eroding this court's power to determine its own court rules.

¶ 14 A more appropriate definition of special proceedings would include only those proceedings created or completely transformed by the legislature. This would include actions unknown to common law (such as attachment, mandamus, or certiorari), as well as those where the legislature has exercised its police power and entirely changed the remedies available (such as the workers' compensation system). Other states have adopted similar standards within their civil codes, typically defining an ordinary action as one based in common law and a special proceeding as any other action. See, e.g., Tide Water Associated Oil Co. v. Superior Court, 43 Cal.2d 815, 822, 279 P.2d 35 (1955); Dow v. Lillie, 26 N.D. 512, 520, 144 N.W. 1082 (1914). This standard protects the separation of powers because it preserves this court's abilities to set its own court rules for...

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97 practice notes
  • McDevitt v. Harborview Med. Ctr., No. 85367–3.
    • United States
    • United States State Supreme Court of Washington
    • November 14, 2013
    ...patients' rights to access the court system against a private hospital in Putman v. Wenatchee Valley Medical Center, 166 Wash.2d 974, 985, 216 P.3d 374 (2009). There, we recognized that “[t]he Washington State Constitution does not contain a formal separation of powers clause, but ‘the very......
  • Davis v. Cox, No. 90233–0.
    • United States
    • United States State Supreme Court of Washington
    • May 28, 2015
    ...Constitution ; the Washington separation of powers doctrine under Putman v. Wenatchee Valley Medical Center, PS, 166 Wash.2d 974, 979–85, 216 P.3d 374 (2009) ; the Washington right of access to courts under 351 P.3d 867Putman, 166 Wash.2d at 979, 216 P.3d 374 ; the petition clause of the Fi......
  • Haskins v. Multicare Health Sys., No. 44655–3–II.
    • United States
    • Court of Appeals of Washington
    • December 16, 2014
    ...among them is the power to promulgate rules for practice in the courts. Putman v. Wenatchee Valley Med. Ctr., PS, 166 Wash.2d 974, 980, 216 P.3d 374 (2009). But where it is alleged that (1) a statute conflicts with a court rule, we (2) attempt to harmonize them and give effect to both but, ......
  • Banowsky v. Backstrom, NO. 96200-6
    • United States
    • United States State Supreme Court of Washington
    • July 25, 2019
    ...procedural matters and the statute will prevail in substantive matters." Putman v. Wenatchee Valley Med. Ctr., PS, 166 Wash.2d 974, 980, 216 P.3d 374 (2009) (citing Jensen, 158 Wash.2d at 394, 143 P.3d 776 ).¶49 CRLJ 14A(b) is unquestionably a procedural rule. By providing for transfer of a......
  • Request a trial to view additional results
97 cases
  • McDevitt v. Harborview Med. Ctr., No. 85367–3.
    • United States
    • United States State Supreme Court of Washington
    • November 14, 2013
    ...patients' rights to access the court system against a private hospital in Putman v. Wenatchee Valley Medical Center, 166 Wash.2d 974, 985, 216 P.3d 374 (2009). There, we recognized that “[t]he Washington State Constitution does not contain a formal separation of powers clause, but ‘the very......
  • Davis v. Cox, No. 90233–0.
    • United States
    • United States State Supreme Court of Washington
    • May 28, 2015
    ...Constitution ; the Washington separation of powers doctrine under Putman v. Wenatchee Valley Medical Center, PS, 166 Wash.2d 974, 979–85, 216 P.3d 374 (2009) ; the Washington right of access to courts under 351 P.3d 867Putman, 166 Wash.2d at 979, 216 P.3d 374 ; the petition clause of the Fi......
  • Haskins v. Multicare Health Sys., No. 44655–3–II.
    • United States
    • Court of Appeals of Washington
    • December 16, 2014
    ...among them is the power to promulgate rules for practice in the courts. Putman v. Wenatchee Valley Med. Ctr., PS, 166 Wash.2d 974, 980, 216 P.3d 374 (2009). But where it is alleged that (1) a statute conflicts with a court rule, we (2) attempt to harmonize them and give effect to both but, ......
  • Banowsky v. Backstrom, NO. 96200-6
    • United States
    • United States State Supreme Court of Washington
    • July 25, 2019
    ...procedural matters and the statute will prevail in substantive matters." Putman v. Wenatchee Valley Med. Ctr., PS, 166 Wash.2d 974, 980, 216 P.3d 374 (2009) (citing Jensen, 158 Wash.2d at 394, 143 P.3d 776 ).¶49 CRLJ 14A(b) is unquestionably a procedural rule. By providing for transfer of a......
  • Request a trial to view additional results

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