Waples v. Peter H. Yi

• Decision Date: 01 July 2010
• Docket Number: No. 82142-9,82973-0.,82142-9
• Citation: 234 P.3d 187,169 Wash.2d 152
• Parties: Nancy N. WAPLES and Mark Waples, husband and wife and their marital community thereof, Petitioners,v.Peter H. YI, DDS and Jane Doe Yi, husband and wife and their marital community thereof, d/b/a/ Lakewood Dental Clinic, and Dr. Peter H. Yi, DDS, PS, a Washington Corporation, Respondents.Linda Cunningham and Downey C. Cunningham, a marital community, Appellants,v.Ronald F. Nicol, M.D.; Valley Radiologists, Inc., PS and Multicare Health System, Inc., d/b/a Covington Multicare Clinic, Respondents.
• Court: Washington Supreme Court

169 Wash.2d 152

234 P.3d 187

Nancy N. WAPLES and Mark Waples, husband and wife and their marital community thereof, Petitioners,

v.Peter H. YI, DDS and Jane Doe Yi, husband and wife and their marital community thereof, d/b/a/ Lakewood Dental Clinic, and Dr. Peter H. Yi, DDS, PS, a Washington Corporation, Respondents.

Linda Cunningham and Downey C. Cunningham, a marital community, Appellants,

v.Ronald F. Nicol, M.D.; Valley Radiologists, Inc., PS and Multicare Health System, Inc., d/b/a Covington Multicare Clinic, Respondents.

Nos. 82142-9, 82973-0.

Supreme Court of Washington En Banc.

Argued Feb. 25, 2010.

Decided July 1, 2010.

Jerald D. Pearson, The Pearson Law Firm, Snoqualmie, WA, Edward C. Harper, Harper Law, P.L.L.C., Kirkland, WA, George Alan Steele, George A. Steele Attorney at Law, Shelton, WA, for Appellants.

John A. Rosendahl, Timothy Lee Ashcraft, Williams Kastner & Gibbs, Tacoma, WA, Mary H. Spillane, Daniel W. Ferm, Williams Kastner & Gibbs, P.L.L.C., John Cornelius Versnel, III, Vanessa Vanderbrug, Lawrence & Versnel, P.L.L.C., Seattle, WA, for Respondents.

Mary H. Spillane, Daniel W. Ferm, Williams Kastner & Gibbs, P.L.L.C., Seattle, WA, amicus counsel for Physicians Insurance a Mutual Company & Washington State Medical Association.

Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., Erin Healy Hammond, Fain Anderson VanDerhoef, P.L.L.C., Seattle, WA, amicus counsel for Washington Defense Trial Lawyers.

Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, George M. Ahrend, Ahrend Law Firm, P.L.L.C., Moses Lake, WA, amicus counsel for Washington State Association for Justice Foundation.

C. JOHNSON, J.

¶ 1 This case involves a challenge to the constitutionality of former RCW 7.70.100(1) (2006),¹ which requires a plaintiff to provide health care providers with 90 days' notice of the plaintiff's intention to file a medical malpractice suit. This notice requirement is one of two requirements instituted by the legislature in an effort to provide potential medical malpractice plaintiffs with incentives to settle cases before resorting to court. The second, codified as RCW 7.70.150, required plaintiffs to obtain and file with the complaint a certificate of merit from a medical expert. We recently held that the certificate of merit requirement was unconstitutional, violating both the separation of powers and the right of access to courts. Putman v. Wenatchee Valley Med. Ctr., 166 Wash.2d 974, 216 P.3d 374 (2009).

¶ 2 In these consolidated cases, Nancy Waples seeks reversal of a published Court of Appeals' decision affirming the dismissal of her medical malpractice suit against her dentist, Peter Yi, DDS, PS.² The suit was dismissed based on Waples's failure to give notice as required by the statute. Waples concedes she did not provide the required notice, but argues, among other things, that the requirement is unconstitutional under Putman.

¶ 3 Similarly, Linda Cunningham seeks reversal of a trial court order dismissing her medical malpractice suit against her radiologist, Dr. Ronald Nicol.³ Cunningham also did not provide the required notice and, like Waples, argues that the requirement is unconstitutional under Putman. We agree that the notice requirement of RCW 7.70.100(1) is unconstitutional because it violates the separation of powers. 044

Facts and Procedural History

Waples

¶ 4 On September 16, 2003, Waples received dental treatment from Yi. On September 5, 2006, Waples filed a complaint against Yi seeking damages arising from her treatment, alleging that he allowed his staff to administer Novocain negligently, causing her to suffer physical disability, pain, and partial paralysis. On September 14, 2006, Waples served Yi with a copy of the summons and complaint.

¶ 5 Yi moved for summary judgment and sought dismissal of Waples's claims for failure to comply with the notice requirement of RCW 7.70.100(1). Waples did not dispute that she failed to comply with the statute but instead argued that the notice requirement is not mandatory and that noncompliance is excused because the mediation procedures contemplated by RCW 7.70.100(3) through (7) were not in place at the time the action was commenced.⁵ After hearing oral argument, the trial court dismissed the action for noncompliance with the notice requirement and Waples appealed.

¶ 6 At the Court of Appeals, Waples made the same statutory construction arguments made below but also contended that RCW 7.70.100(1) violates equal protection under article I, section 12 of the Washington Constitution. Division Two affirmed the dismissal of Waples's suit, holding that the notice requirement of RCW 7.70.100(1) required strict compliance, that Waples failed to strictly comply, and that the statute did not violate equal protection under rational basis review. Waples v. Yi, 146 Wash.App. 54, 189 P.3d 813 (2008).

¶ 7 We granted Waples's petition for review.

Cunningham

¶ 8 On August 24, 2000, radiology specialist Nicol took an MRI (magnetic resonance imaging) image of Cunningham's brain and prepared a report indicating that the imaging studies were normal. In February 2008, Cunningham learned that she required invasive surgery to treat several brain tumors and that the 2000 imaging studies were in fact not normal, but had shown abnormalities of an extra-axial tumor mass. On August 4, 2008, Cunningham served a notice of intent to sue Nicol, but to avoid the 8-year statute of repose, filed suit 16 days later on August 20.

¶ 9 Like Yi, Nicol moved for summary judgment and sought dismissal of Cunningham's claims for failure to comply with the notice requirement of RCW 7.70.100(1). Cunningham did not dispute that she failed to comply with the statute, and at the time, specifically conceded the validity of the statute of repose. Cunningham Clerk's Papers at 162 (“the validity of the subject statute of repose is beyond challenge”). Rather, she sought a continuance pending our decision in Putman or, alternatively, a declaratory ruling or summary judgment in her favor. After hearing oral argument, the trial court granted the motion to dismiss the action for noncompliance with the notice requirement and denied Cunningham's motions.

¶ 10 Cunningham appealed the order granting the motion to dismiss directly to this court. We accepted review and consolidated Cunningham's case with Waples. Waples v. Yi, 165 Wash.2d 1031, 203 P.3d 382 (2009).

Issue

¶ 11 Does the notice requirement of RCW 7.70.100(1) violate the separation of powers doctrine?

Analysis

¶ 12 As we recognized in Putman:

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 coequal branches of government: executive, legislative, and judicial. City of Fircrest v. Jensen, 158 Wash.2d 384, 393-94, 143 P.3d 776 (2006). 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 ). If “ ‘the activity of one branch threatens the independence or integrity or invades the prerogatives of another,’ ” it violates the separation of powers. Jensen, 158 Wash.2d at 394 (internal quotation marks omitted) (quoting State v. Moreno, 147 Wash.2d 500, 505-06, 58 P.3d 265 (2002)).

Some fundamental functions are within the inherent power of the judicial branch, including the power to promulgate rules for its practice. 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.

Putman, 166 Wash.2d at 980, 216 P.3d 374 (citations omitted). The crux of the separation of powers issue in Putman was whether RCW 7.70.150 could be harmonized with this court's rules. After concluding that medical malpractice proceedings are not special proceedings and are therefore not exempt from the civil rules, we held that RCW 7.70.150 conflicted with the pleading requirements of CR 8 and 11, that this conflict involved procedural law and not substantive law, and that the certificate of merit requirement thereby encroached upon the judiciary's power to set court rules.

¶ 13 Waples and Cunningham contend that Putman controls here. They argue that the notice requirement of RCW 7.70.100(1) irreconcilably conflicts with the commencement requirements of CR 3(a), that this conflict involves procedural law, and that the notice requirement thereby encroaches upon the judiciary's power to set court rules. Respondents argue that Putman does not apply and that RCW 7.70.100(1) does not violate the separation of powers.

¶ 14 Putman considered whether RCW 7.70.150 conflicted with the pleading requirements of CR 8 and 11, and whether that conflict involved procedural law or substantive law. Similarly, here we must consider whether RCW 7.70.100(1) conflicts with the commencement provisions of CR 3(a) and whether that conflict involves procedural law or substantive law.

¶ 15 Waples and Cunningham argue that RCW 7.70.100(1), like RCW 7.70.150, conflicts with this court's rules because the notice requirement fundamentally changes the procedures for the commencement of a civil action under CR 3(a). In Putman, we concluded that RCW 7.70.150 conflicted with CR 8 and 11:

First, RCW 7.70.150 conflicts with CR 11 because it requires the attorney to submit additional verification of the pleadings-a requirement that CR 11 explicitly limits to

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