McDevitt v. Harborview Medical Center
McDevitt v. Harborview Medical Center
Concurring Opinion
¶24 (concurring in result only) — While I concur in result, the lead opinion is wrong in its statutory analysis, ignores the clear direction of the legislature to avoid inconsistent presuit notice requirements, fails to treat similar government and private entities the same, and reaches an absurd result. It confuses what the legislature could constitutionally do with what the legislature did do in the 2009 medical malpractice reform legislation. The lead opinion acknowledges that “[t]he purpose of these exemptions was to avoid inconsistent presuit notice requirements in medical malpractice cases” (referring to former RCW 4.92.110 (2006) and former RCW 4.96.020(4) (2006)), a statement with which I agree. Lead opinion at 68. But the lead opinion’s result is just the opposite. Under the lead opinion’s reasoning, government health care providers are given the benefit of a presuit notice requirement that other health care providers are not, and government health care providers were given the benefit of a more generous presuit notice requirement than any other government entity was at the time. This is an absurd result. Clearly, as recent legislative action amply shows, it is not what our legislature intended either. Laws of 2013, ch. 82; Laws of 2012, ch. 250.
¶25 At the time this case was filed, all other government entities were entitled to 60 days’ notice of a claim before a suit could be filed. This presuit notice requirement gives public agencies the opportunity to promptly settle meritorious claims. This uniformity is important to maintain an
¶26 The lead opinion has confused what the legislature could do under article II, section 26 of our state constitution with what our legislature intended to do in its most recent attempt at medical malpractice reform. The lead opinion offers no rational basis for giving government health care providers a very special 90-day preclaim filing requirement, when all other state and local entities are entitled to only a 60-day preclaim filing period, and private health care providers are entitled to none. Our legislature clearly does not think that is fair; it has since amended the law to give government hospitals the same claims period as other government agencies. Laws of 2012, ch. 250; see also Laws of 2013, ch. 82. The lead opinion’s result leaves us not with legislation that was painstakingly drafted after deep discussion with the stakeholders. At best, it results in law that is simply an accident. At worst, it results in law that is in clear derogation of the legislature’s intent, either for consistent preclaim periods among government agencies or for malpractice reform that treats governmental and private health care providers the same.
¶27 I believe we should begin, as we did the first time this statute was before us, with the principle that the law
f 28 I recognize that this does not end our inquiry. As the lead opinion properly recognizes, under our constitution, the legislature has the power to “direct by law, in what manner, and in what courts, suits may be brought against the state.” Wash. Const, art. II, § 26. I agree that the legislature may discriminate and provide special protec
¶29 But having the power to grant preferential treatment to yourself is not the same as having exercised that power. If the legislature wants to carve out an exception to its admonition that it was to be treated to the same extent as private persons and corporations, it can do so.
¶30 Today, the court writes a statute that our legislature did not consider and could not have intended. Article II, section 26 does not vest this court with the authority to legislate.
¶31 However, because I do agree that the lead opinion’s decision should be applied prospectively only, I concur in the result today. This is a unique case. In Waples v. Yi, 169 Wn.2d 152, 161, 234 P.3d 187 (2010), this court held the presuit notice requirement of former RCW 7.70-.100(1) was unconstitutional on its face. Waples used sweeping language, not the language of an “as applied” holding. The plaintiff, indeed, the entire world, was entitled to rely on this court’s holding. The lead opinion has now seen fit to exempt government health care defendants from that rule. Under these exceptional circumstances, I agree the holding should be prospective only.
Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a).
We have held that the State’s power to discriminate is not unfettered. In Hunter v. North Mason High School, 85 Wn.2d 810, 818-19, 539 P.2d 845 (1975), Justice Utter wrote that
we cannot uphold nonclaim statutes simply because they serve to protect the public treasury. Absent that justification, there is no basis, substantial or even rational, on which their discrimination between governmental plaintiffs and others can be supported. They thus cannot stand under the equal protection clause of the Fourteenth Amendment or Const, art. 1, § 12.
(Footnote omitted.) I strongly object to the lead opinion’s dismissive labeling of language in Hunter as dictum. We are not a federal court; we are not limited by the federal constitution’s “cases” and “controversies” requirement that gave rise to its restrictive “dicta” jurisprudence. U.S. Const, art. III, § 2; see Wash. State Farm Bureau Fed’n v. Gregoire, 162 Wn.2d 284, 319 n.32, 174 P.3d 1142 (2007) (Chambers, J., concurring). See generally Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997 (1994). Reasoning in a Washington State Supreme Court opinion does not become “dictum” merely because a later court finds it to be inconvenient.
Again, the legislature must comply with other constitutional principles. We must not forget that exercises of article II, section 26 power are subject to other constitutional constraints. ZDI Gaming, Inc. v. Wash. State Gambling Comm’n, 173 Wn.2d 608, 619, 268 P.3d 929 (2012); Hunter, 85 Wn.2d at 818-19. It may be that a well-drawn statute would not run afoul of the equal protection principles laid down in Hunter. The lead opinion is certainly correct that this court has upheld other claims periods that favor the State and its subdivisions. See, e.g., Medina v. Pub. Util. Dist. No. 1. of Benton County, 147 Wn.2d 303,313,53 P.3d 993 (2002) (upholding 60-day waiting period); Hall v. Niemer, 97 Wn.2d 574, 581, 649 P.2d 98 (1982) (upholding claim filing condition precedent that placed “reasonable procedural burden [that was] not substantial and [did] not constitute a real impediment to relief”); Coulter v. State, 93 Wn.2d 205, 207, 608 P.2d 261 (1980) (upholding claim filing statute that did not reduce the statute of limitations). But in those cases, we were faced with statutes where the legislature deliberately and publicly exercised its article II, section 26 power to “ ‘direct by law, in what manner, and in what courts, suits may be brought against the state.’ ” Hall, 97 Wn.2d at 581 (quoting Const, art. II, § 26). We were not faced with a statute that was transformed from one that benefited all categories of providers equally to benefiting the State only. A statute that draws purely arbitrary categories violates equal protection. Medina, 147 Wn.2d at 314 (citing State v. Thorne, 129 Wn.2d 736, 771, 921 P.2d 514 (1996)).
I also respectfully disagree with the lead opinion’s equal protection analysis. A statute that draws purely arbitrary categories violates equal protection. See, e.g., Medina, 147 Wn.2d at 314 (citing Thorne, 129 Wn.2d at 771). Due to this court’s holding today, former RCW 7.70.100 has become purely arbitrary, at least in relation to the statute the legislature thought it was drafting. The legislature’s constitutional authority to direct how the State may be sued is subject to the equal protection clause, and equal protection is offended when power is wielded in an arbitrary manner. See generally id. at 324-29 (Chambers, J., dissenting).
Concurring in Part
f32 (concurring in part and dissenting in part) — I agree with the lead opinion that article II, section 26 of the Washington State Constitution empowers the legislature to require a 90 day presuit notification period before filing suit against the State or any of its subdivisions. I wholly join the lead opinion’s holding that
|33 In Waples v. Yi, 169 Wn.2d 152, 161, 234 P.3d 187 (2010), we found the presuit notice requirement in former RCW 7.70.100(1) unconstitutional. There is no discussion or distinction made in the Waples majority between private and governmental defendants. The Waples dissent mentions. governmental defendants, but only as an example of how presuit notice requirements have been adopted and upheld in other contexts. Id. at 165 (J.M. Johnson, J., dissenting).
¶34 Given Glen McDevitt’s interpretation of Waples, he thought former RCW 7.70.100(1) no longer applied and he did not need to, nor did he, file a presuit notice. The State thought it continued to apply and raised McDevitt’s failure to file as a defense. In this case, we have decided substantively that Waples did not invalidate the presuit notice requirement in suits against governmental defendants; therefore, McDevitt should have filed a presuit notice. Before our decision, there was nothing that said the presuit notice requirement was not required in suits against governmental defendants.
¶35 It is hard to imagine a clearer violation of the separation of powers doctrine than the court’s determination that its decision will operate prospectively only. The court’s decision has not changed the law. There is no principle that says until the court decides a statute is effective, it is not. The statutory notice provision has never been declared unconstitutional insofar as suits against the government are concerned; at all times, the statute’s notice
¶36 Nonetheless, a majority of the court concludes that the statutory provision will be completely inoperable for a period of time — beginning when Waples was filed and ending when this case is filed — despite the fact that as applied, the statute was at all times constitutional and a legitimate exercise of the legislature’s power under article II, sections 1 and 26 of the Washington State Constitution.
¶37 Given this situation, I do not know how we can give prospective only relief. We are not changing a procedural rule for construing the statute or for determining its constitutionality. We cannot change or invalidate a substantive legislative enactment if it is constitutional. Nor can we suspend a valid statute. Accordingly, there is no room for any debate about prospective or retroactive application of our decision. I respectfully dissent from the prospective application portion of the lead opinion and would reverse the trial court.
The statute was constitutionally valid when applied to the government until the legislature’s amendment in 2013 that removed the 90 day presuit notice requirement in its entirety. Laws of 2013, ch. 82, § 1 (effective July 28, 2013).
McDevitt argues that the State at oral argument conceded prospective application. The State’s counsel, in response to a question about prospective application, emphasized that Harborview’s main concern was an opinion affirming the constitutionality of former ROW 7.70.100(1) as applied to state defendants, stating:
This situation is always difficult. I think historically the way the court has approached it is that . . . the litigant before the court gets the benefit or the burden of the decision . . . and it applies prospectively from that point. Obviously our interest is in . . . the larger matter.
Wash. Supreme Court oral argument, McDevitt v. Harborview Med. Ctr., No. 85367-3 (Jan. 12, 2012), at 39 min., 8 sec., audio recording by TVW, Washington State’s Public Affairs Network, available at http://www.tvw.org. While acknowledging the State’s greater interest in the long term rather than the immediate case, he ended by asking us to reverse the trial court. I do not think his statement can be deemed a concession.
Reference
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- Glen A. McDevitt v. Harborview Medical Center
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