Law Matters
-September 2009
William E. Fassett, Ph.D., R.Ph.
Professor of Pharmacy Law & Ethics
Washington State University – Spokane
Washington State Supreme Court rules that “Certificate of Merit” requirement for filing health care negligence lawsuits violates Washington Constitution
The 2006 Washington Legislature enacted several changes to state law regarding law suits alleging injuries from health care (Session Laws of Washington, 2006 c 8 § 304), including a new requirement that plaintiffs in health care negligence suits must supply a “certificate of merit” at the time the suit is commenced. The certificate must be issued by a health provider who is qualified to be an expert witness in the matter, and it must affirm that there is a “reasonable probability that the defendant’s conduct did not follow the accepted standard of care required to be exercised by the defendant.” The Legislature intended this to be a safeguard against frivolous lawsuits, and also provided that any claims made without the filing of the certificate of merit would, when dismissed, not be counted against the defendant in setting insurance rates, affecting the defendant’s credit history, or in professional licensing and credentialing.” (RCW 7.70.150) In a recent lawsuit, a woman sued her physicians and the medical clinic, among others, for negligently failing to diagnose her ovarian cancer. Her case was dismissed by the Superior Court for failure to properly file a certificate of merit. The plaintiff appealed to the Supreme Court, arguing that the statute was unconstitutional.
On September 17, 2009, the Washington Supreme Court held that RCW 7.70.150 is invalid because it violates the separation of powers of the various branches of government, and because it impairs constitutional guarantees of access to the courts.1 Although the Legislature can create or extinguish certain rights, such as the right to sue under certain circumstances, it generally cannot tell the Courts how to establish procedures for the conduct of lawsuits. The Court held that the certificate of merit requirement conflicted with existing rules and procedures for filing lawsuits in Washington. The Court also cited an early U.S. Supreme Court decision (Marbury v. Madison, 1803) which held that “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.” Washington courts have long held that the right of discovery of information needed to pursue the plaintiff’s claim or a defendant’s defense is an essential element of access to the courts. With this decision, cases now pending or filed after September 17 will not be subject to dismissal for failure to properly file a certificate of merit.
How does this affect pharmacists? It probably will have little noticeable effect. The requirements in Washington for suing pharmacists for malpractice return to those in place before 2006. These requirements were enacted as part of significant tort reform in 1976. In most cases, errors made by pharmacists first become apparent when a patient alerts the pharmacy and the pharmacy notifies their insurance company of a potential liability. The insurance company may well resolve the issue before any threat of lawsuit emerges. If a lawsuit is filed, the plaintiff must prove specific elements. For pharmacists, these elements are almost always the following: failure by the pharmacist to follow the accepted standard of care, injury to the plaintiff, and evidence that the injury was caused by the pharmacist’s failure. The certificate of merit requirement only deals with the first of these elements, and it is not in fact difficult to find an expert who will provide one in most pharmacy cases. The more difficult burden, of showing that the pharmacist’s alleged failure actually led to the harm experienced by the patient, is unaffected by the Supreme Court’s ruling.
1 Putman v. Wenatchee Valley Medical Ctr., No. 80888-1, Wash. Supr. Ct., September 17, 2009.