Certificate of Merit in Medical Malpractice Actions Ruled Unconstitutional
Posted: September 17, 2009 Filed under: Civil Rules, Constitutional law, medical malpractice Leave a comment »In Putman v. Wenatchee Valley Medical Center (No. 80888-1), the Washington Supreme Court held RCW 7.70.150 unconstitutional.
The statute required a certificate of merit from a medical expert as a prerequisite to filing a medical malpractice suit. The Court reasoned that RCW 7.70.150 “unduly burdens the right of access to courts and violates the separation of powers.” Further, because it may be impossible to obtain evidence necessary for the certificate of merit prior to discovery, the requirement violates the plaintiff’s right of access to the courts.
Medical malpractice actions are inherently tort actions that are not exempt from the Civil Rules under CR 81(a). Thus, the statute violates the civil rules by (1) requiring more than the notice and pleading required by CR 8; and, (2) requiring the attorney to submit additional verification of the pleadings, in derogation of CR 11.
The Seattle Times published an editorial regarding this decision Unfettered Access to the Courts and a news story Wash. court throws out medical malpractice law.
RCW 4.22.020′s “dependent on support” Definition Broadened
Posted: September 10, 2009 Filed under: dependent for support, RCW 4.22.020, Wrongful Death Leave a comment »In Armantrout v. Carlson, the Washington Supreme Court held that parents who are dependent on a child, may bring a wrongful death claim for under RCW 4.22.020 without actual financial dependence.
RCW 4.22.020 establishes two-tiers of beneficiaries in a wrongful death action. The first tier are the decedent’s spouse or state registered domestic partner and children. Then, if there are no first tier beneficiaries, the action can be maintained for the benefits of parents, sisters, or brother “who may be dependent upon the deceased person for support.” The standard has previously been that the second-tier beneficiaries must be “substantially” dependent on the decedent. The dependence cannot be based on emotional support alone. Phillipedes v. Bernard, 151 Wn.2d 376, 384-85, 88 P.3d 939 (2004). Up until Armantrout, “dependent for support” had required a showing of financial dependence. Here, a child who provided non-economic services to the parent.
At the time of her death, Kristen Armantrout was 18 years old and living at home with her mother who has diabetes and is blind. Kristen cared for her mother and provided services such as driving, reading, and helping with glucose readings and insulin injections. The Court held that “dependent for support” under RCW 4.22.020 need not be based on monetary contributions alone, but instead “allows triers of fact to consider services that have a monetary value when assessing a claimant’s dependency on the decedent for support.”
Court May Strike Party’s Witnesses for Failure to Comply with Court Ordered Deadlines
Posted: June 29, 2009 Filed under: Civil Rules, Sanctions, Trial, Witnesses Leave a comment »In Blair v. TA-Seattle East #176, Division I of the Court of Appeals held that a court has the authority to strike a party’s witness where there is a “showing of intentional or tactical nondisclosure, willful violation of a court order, or unconscionable conduct.” The failure of a party to meet court ordered discovery deadlines is a presumptively willful violation of the court’s order.
In Blair, the plaintiff disclosed primary witnesses almost 7 weeks after the initial deadline, and 9 days after the deadline for additional witness disclosure. The plaintiff’s disclosures also lacked summaries of expert witnesses testimony and their credentials. Plaintiff’s failure to timely disclose its witnesses was without excuse
