American Journal of Law & Medicine

Certificate of merit requirement violates right of access to courts: Washington Supreme Court strikes down law requiring expert certification of medical malpractice claims - Putman v. Wenatchee Valley Medical Center.

Certificate of Merit Requirement Violates Right of Access to Courts: Washington Supreme Court Strikes Down Law Requiring Expert Certification of Medical Malpractice Claims--Putman v. Wenatchee Valley Medical Center (1)--The Supreme Court of Washington held that a state statute unduly burdened the plaintiffs right of access to courts and violated the separation of powers (2) The Washington-state statute at issue (the "Statute") required that a medical expert certify the merits of a malpractice claim at the time of filing. (3)

The state enacted the Statute in 2006 as part of a broad legislative effort to reform its medical malpractice system and reduce health care costs. (4) For a plaintiff filing a medical malpractice action, the Statute requires a supplemental certificate of merit from a medical expert. The expert must certify that based on the available information "there is a reasonable probability that the defendant's conduct did not follow the accepted standard of care." (5) The Statute also provides that failure to submit a proper certificate is grounds for dismissal of the action. (6)

The plaintiff, Kimme Putman, filed a malpractice suit in 2007 against Wenatchee Valley Medical Center and several of its employees ("Defendants"). The complaint alleged that Defendants negligently failed to diagnose Putman's ovarian cancer, resulting in a delay of treatment and, in turn, a reduced likelihood of survival. The trial court dismissed Putman's claim because she failed to file a certificate of merit as required by the Statute. On direct appeal to the Supreme Court of Washington, Putman argued that the Statute was unconstitutional because it unduly burdened her right of access to courts. Putman also argued that the Statute violated the separation of powers doctrine by conflicting with the rules of civil procedure, which are typically governed by the judiciary. (7) Defendants argued in part that, even if the Statute were to conflict with the civil rules, medical malpractice proceedings are one of the "special proceedings" exempted from the civil rules (8) because the legislature has set out statutory requirements for filing malpractice claims. …

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