January 28, 2014
Schroeder v. Weighall — P.3d —, 2014 WL 172665 (Wash. 2014), is the second Washington Supreme Court’s decision that voids the Legislature’s time bar for medical malpractice suits. The first decision, DeYoung v. Providence Medical Center, 960 P.2d 919 (Wash. 1998), voided an eight-year repose provision for violating the constitutional prohibition on special privileges (Article I, section 12). This statutory provision benefited healthcare providers and their insurers at the expense of injured patients whose cause of action accrued over a long period of time and consequently tolled the statute of limitations. The Court held that the Legislature had no rational basis for blocking suits filed in connection with more-than-eight-years-old incidents of medical malpractice. The Court based that decision on the finding by the National Association of Insurance Commissioners that old medical malpractice incidents account for “less than one percent of all insurance claims nation-wide.” This finding convinced the Court that the “relationship between the goal of alleviating any medical insurance crisis and the class of persons affected by the eight-year statute of repose is too attenuated to survive rational basis scrutiny.”
In Schroeder, the Court used the same constitutional prohibition to void a new statutory provision that eliminated tolling of the statute of limitations for minors in medical malpractice actions. Washington law provides that suits alleging medical malpractice must be filed within three years of the “act or omission” giving rise to the claim or one year after the patient “discovered or reasonably should have discovered” that the injury was caused by the act or omission in question. The statute imputes a parent’s or guardian’s knowledge to the injured minor. RCW 4.16.350. RCW 4.16.190(1). Prior to its amendment, the statute also provided that the limitation period shall be suspended (tolled) during a plaintiff’s minority, incompetency, or incarceration. The statutory amendment that the Court found unconstitutional, RCW 4.16.190(2), took away minors’ entitlement to toll the statute of limitations in medical malpractice actions.
The Court reasoned that the constitutional prohibition on special privileges aims at preventing legislative capture, described as “the undue political influence exercised by a privileged few.” The Court then went on to determine that the challenged legislation “limits the ability of certain plaintiffs—those whose injuries occurred during childhood—to bring medical malpractice claims” and therefore burdens their rights, while granting a special immunity to healthcare providers. This immunity, it explained, calls for constitutional scrutiny under the “reasonable ground” test. The Court held that the challenged legislation fails that test for two main reasons. First, there is no evidence substantiating the projection that the elimination of tolling for minors will reduce healthcare providers’ insurance premiums. Second, the challenged legislation “has the potential to burden a particularly vulnerable minority by placing “a disproportionate burden on the child whose parent or guardian lacks the knowledge or incentive to pursue a claim on his or her behalf.” To these reasons, one might add another one: it makes no sense to deny tolling to minors while granting it to incarcerated convicts, as the Washington statute did and still does.
This is an important and well reasoned decision. As a constitutional precedent, however, it suffers from a structural anomaly. This precedent allows tort reformers to pass constitutional muster by curtailing the patients’ right to sue their doctors more severely than they did in the statutes that the Court found unconstitutional. For example, a statute setting up a strict four-year repose period for all medical malpractice suits (as opposed to the eight-year period voided in DeYoung) will likely be upheld as constitutional because it has a definite promise of reducing the insurance premiums for healthcare providers. The availability of a more balanced reform that promises the same result (e.g., the merit affidavit requirement: see here, at pp. 1208-16) is of no consequence. The Court’s “reasonable ground” test renders legislative alternatives irrelevant because the Court does not second-guess the legislature’s chosen means and ends. All it does is examine whether those means and ends are connected to each other reasonably enough.