The Washington State Supreme Court recently re-visited the Waples v. Yi decision, just as we did, albeit with regard to new issues.
In January of 2013, a new case was handed down called McDevitt v. Harborview Medical Center (291 P.3d 876). With McDevitt, the Court pulled back a little bit on the holding of Waples.
If you remember, Waples involved RCW 7.70.100(1) and a 90 day presuit notice that was mandatory with regard to filing a lawsuit against healthcare facilities for medical malpractice. In Waples, the requirement of this presuit notice was held unconstitutional (under the state constitution) pursuant to the separation of powers principles.
The factual situation in Waples was that a private individual was suing a private healthcare facility. In McDevitt, the facts changed slightly, and we have Harborview Medical Center, which for the purposes of this litigation, was considered an arm of the State of Washington. In McDevitt, Harborview filed a Motion for Summary Judgment at the trial court level, arguing that it had not been given the 90 day notice. The Plaintiff opposed, citing Waples to assert that the 90 day notice was not required.
The trial court agreed with the Plaintiff and the appeal ended up in the Washington Supreme Court. As it turns out, the presuit notice with regard to state entities was held constitutional. The Court preserved Waples by reasoning that the Waples declaration of the notice being unconstitutional was an “as applied” challenge, and that the statute itself was not facially invalid. Implicitly, the Court held that the statute, as applied to a State entity was, in fact, constitutional.
Despite the confusion that this may create in Washington courts with regard to interpretation of RCW 7.70.100(1), our previous reflection in the Waples post remains true: waiting to contact an attorney in response to possible medical malpractice is a risky proposition.
(This post is intended to be educational and should not be construed as legal advice. If you have questions or believe these issues affect you or your case, please contact an attorney).