By Rick Blaine
Bennett v. U.S., No. 101300-1 (Dec. 7, 2023). At issue: whether the statute of repose on medical malpractice actions violates (1) the privileges and immunities clause of article I, section 12 of Washington’s Constitution or (2) the right to access the courts pursuant to article I, section 10 of the same. In holding the statute violates the privileges and immunities clause, the state supreme court did not address rights to access.
Plaintiff, married to a service member, underwent sinus surgery at Bremerton Naval Hospital in 2009. In a follow up visit to address significant bleeding from the nose, a physician stuffed packing up Plaintiff’s nose until there was a cracking sound, acute pain, and Plaintiff lost consciousness. Subsequently, Plaintiff developed myriad symptoms including migraines, fatigue, and neurocognitive impairment; however, a series of specialists were unable to diagnose the cause. In 2017, Plaintiff was advised her symptoms were consistent with traumatic brain injury to the prefrontal cortex, as caused by the packing inserted into her nose.
In 2018, Plaintiff filed an administrative tort claim with the Department of the Navy. Within six months of that claim’s denial, Plaintiff filed a complaint for medical malpractice in the United States District Court for the Western District of Washington. Citing the state’s eight-year statute of repose,1 the United States moved to dismiss. Plaintiff objected, arguing the statute could not apply as a matter of law, as it is preempted by the Federal Tort Claims Act and the state constitution. The district court certified two questions to the state Supremes: whether the statute violates section 10 or 12 of article I. But the supreme court declined to answer, reasoning that the district court had not yet ruled on the preemption argument, which could obviate the need to make a constitutional ruling.
The district court denied the motion to dismiss holding the Federal Tort Claims Act preempted the state statute of repose. That ruling was reversed by the Ninth Circuit, which held the Act incorporates and applies state laws, such as statutes of repose. The appellate court remanded with instructions to resolve the constitutional question. The district court, in turn, re-certified its questions to the state supreme court.
In addressing the question, the majority opinion begins by tracing the history of malpractice laws in colonial times, just kidding. Unlike in Bruen, there is some relevant history to consider. Medical malpractice actions “were governed by the limitations period in the general tort statute of limitations.”2 Those statutes of limitation describe “the actionable event as the accrual of a cause of action.”3 Case law concerned when an action accrued; after all, “In many instances an action accrues immediately when the wrongful act occurs.”4 The discovery rule holds where the plaintiff is unaware of the consequent harm, the action does not accrue until plaintiff discovers or should discover the elements of a claim.5 In 1971, the state legislature enacted section 4.16.350 of the Revised Code.
Section 4.16.350(3) contains three provisions for timely commencement of medical malpractice actions: (a) a three-year statute of limitation, (b) a one-year discovery rule, and (c) an eight-year statute of repose. Here, the first two are made inapplicable by the Federal Act, as the timing provisions thereunder supersede any state statutes of limitation.
Rather than bar a plaintiff’s claim which has already accrued, a statute of repose terminates the right of action after a time certain, even if the injury has yet to occur. Here, the statute of repose deprives Plaintiff of her right of action even though she was not aware of the injury until that action was time barred. Which, to be clear, sounds like malarkey from jump street. But first more history before the Court gets there.
Washington’s Constitution states, “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”6 This is often construed as “substantially similar” to the federal equal protection clause of the Fourteenth Amendment to the United States Constitution.7 However, article I, section 12 offers more protections than the federal equal protection clause and demands” a very different analysis in certain situations.”8
On the one hand, “the Fourteenth Amendment was intended to prevent discrimination against disfavored individuals or groups”; on the other, article I, section 12 “was intended to prevent favoritism and special treatment to the few while disadvantaging others.”9 Accordingly, article I, section 12 provides heightened state law protections “when the threat is not of majoritarian tyranny but of a special benefit to a minority and when the issue concerns favoritism rather than discrimination.”10 And yet “not every statute authorizing a particular class to do or obtain something involves a ‘privilege’ subject to article I, section 12.”11 Privileges and immunities mean “those fundamental rights which belong to the citizens of the state by reason of such citizenship.”12 This requires a two-part test: “First, we ask whether a challenged law grants a ‘privilege’ or ‘immunity’ for purposes of our state constitution. If the answer is yes, then we ask whether there is a ‘reasonable ground’ for granting that privilege or immunity.”13 Should the privilege or immunity not be supported by reasonable grounds, the challenged law violates article I, section 12.
Whether the statute of repose implicates a privilege or immunity turns on whether it implicates any of the fundamental rights of state citizenship.14 Here, the majority opinion holds the statute of repose implicates the fundamental right to pursue a common law cause of action.
Fundamental rights of state citizenship, however, are not necessarily the same as fundamental rights for purposes of the federal equal protection clause. So the Court typically looks to “early cases distinguishing the fundamental rights of state citizenship.”15 Such rights include “the right to remove to and carry on business [in the state]; the right, by usual modes, to acquire and hold property, and to protect and defend the same in the law; the rights to the usual remedies to collect debts, and to enforce other personal rights; and the right to be exempt, in property or persons, from taxes or burdens which the property or persons of citizens of some other state are exempt from.”16 The Court has also recognized the fundamental “right to an individual’s sexual orientation and the right to marry,” and “the fundamental right to statutory protection for citizens working in extremely dangerous conditions.”17
Additionally, precedent holds that when a statute “limits the ability of certain plaintiffs . . . to bring medical malpractice claims,” the statute “grants an immunity (and burdens a privilege) triggering the reasonable ground test under article I, section 12.”18 Schroeder “broadly defined the right in question as ‘the right to pursue common law causes of action in court,’ reaffirmed that medical malpractice actions are ‘rooted in the common law tradition,’ and applied the reasonable ground test to ‘scrutinize the legislative distinction’ that existed in current law.”19
The majority opinion also states, “although the existence of a fundamental right of state citizenship is generally determined by reference to early case law, the scope of fundamental rights can, and must, change over time. For example, although the fundamental right ‘to marry’ was likely recognized when article I, section 12 was adopted in 1889, it certainly did not include the right ‘to marry whomever [we] choose’ until much later. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Woods, 197 Wn.2d at 243 (emphasis added); see Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).” 20
For the majority of the Court, the question is not whether there is a fundamental right to the discovery rule of accrual, but rather, whether the statute of repose implicates the fundamental “right to pursue common law causes of action in court” by granting “privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”21 Given controlling precedent, the majority holds the answer is yes.
Thus, the Court must “scrutinize the legislative distinction to determine whether it in fact serves the legislature’s stated goal.”22 As originally enacted, section 4.16.350 did not contain a separate statute of repose, which was added in 1976.23 By 1998, the operative language of RCW 4.16.350 was essentially identical to the current statute.24 That same year, the statute of repose was struck down as unconstitutional.25 In that case, the Court applied only “rational basis” review.26 But even under that more deferential standard, the Court held the statute was “too attenuated to survive rational basis scrutiny” due to “the minuscule number of claims subject to the repose provision.”27
Eight years later, the legislature “reenacted” the same statute of repose, using the same operative language.28 A separate section set forth the legislators’ rationale: the statute of repose “will tend to reduce rather than increase the cost of [medical] malpractice insurance” and “will provide protection against claims, however few, that are stale, based on untrustworthy evidence, or that place undue burdens on defendants[; more,] an eight-year statute of repose is a reasonable time period in light of the need to balance the interests of injured plaintiffs and the health care industry.”29
The majority reaffirm those are all legitimate legislative purposes; however, “[t]he article I, section 12 reasonable ground test is more exacting than rational basis review” because, unlike rational basis review, the reasonable ground test does not allow courts to “hypothesize facts to justify a legislative distinction.”30 The Court must interpret the language of the statute of repose and the legislature’s stated rationale to determine whether “the principle for which the statute really stands” is consistent with its underlying rationale.31 First, the legislature’s interest in reducing medical malpractice insurance premiums does not provide a reasonable ground for the statute of repose.
Secondly, the eight-year statute of repose does not address stale claims generally, and like the statute in Schroeder, “the principle for which the statute [of repose] really stands is not that ‘compelling even one defendant to answer a stale claim is a substantial wrong.’”32 Rather, the statute of repose stands for the principle that requiring a medical malpractice defendant to answer a stale claim is a substantial wrong unless the action is brought by a plaintiff who can prove “fraud, intentional concealment, or the presence of a foreign body” or the action is based on “injury occurring as a result of childhood sexual abuse.”33
Thirdly, “in its statement of rationale, the legislature asserted ‘that an eight-year statute of repose is a reasonable time period in light of the need to balance the interests of injured plaintiffs and the health care industry.’ . . . Along the same lines, the United States argues that ‘the reenacted statute of repose was part of a larger compromise’ and that the statute of repose ‘aligns with the judgment of many other state legislatures.’ . . . In accordance with our precedent, we must hold that the asserted legislative compromise, by itself, is insufficient to show that the statute of repose is supported by reasonable grounds.”34 “[T]o hold that the legislative compromise underlying the statute of repose is sufficient to defeat [Plaintiff]’s article I, section 12 claim in this case, we would need to disavow Schroeder, which no party has asked us to do.”
The majority also declined to follow case law from other states which uphold statutes of repose with respect to medical malpractice claims. Simply put, each state’s constitution is different and subject to their own respective jurisprudence.
As a matter of independent state law, the majority holds the eight-year statute of repose for medical malpractice actions violates article I, section 12’s privileges and immunities clause.
1 RCW 4.16.350(3).
2 Gunnier v. Yakima Heart Ctr., 134 Wn.2d 854, 860 (1998).
3 Ruth v. Dight, 75 Wn.2d 660, 666 (1969).
4 1000 Va. Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 575 (2006).
5 Ruth, 75 Wn. 2d 660 (adopting the discovery rule as matter of statutory interpretation).
6 Art. I, sec. 12.
7 Schroeder v. Weighall, 179 Wn.2d 566, 571 (2014).
8 Id. at 572.
9 Woods v. Seattle’s Union Gospel Mission, 197 Wn.2d 231, 242 (2021), cert. denied, 142 S. Ct. 1094 (2022).
10 Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 145 Wn.2d 702, 731 (2002).
11 Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 812 (2004).
12 Id. at 812-13 (quoting State v. Vance, 29 Wn. 435, 458, 70 P. 34 (1902)).
13 Schroeder, 179 Wn.2d 566 at 573.
14 Id. at 572.
15 Martinez-Cuevas v. DeRuyter Bros. Dairy, 196 Wn.2d 506, 518-19 (2020).
16 Grant County, 150 Wn.2d at 813.
17 Woods, 197 Wn.2d at 242; Martinez-Cuevas v. DeRuyter Bros. Dairy, 196 Wn.2d 506, 518-19 (2020).
18 Schroeder, 179 Wn.2d at 573-74.
19 Maj. Op. (citing Schroeder, 179 Wn.2d at 573-74).
20 Maj. Op.
21 Schroeder, 179 Wn.2d at 573; CONST. art I, § 12.
22 Id. at 574.
23 LAWS OF 1975-76, 2d Ex. Sess., ch. 56, § 1.
24 LAWS OF 1998, ch. 147, § 1.
25 DeYoung v. Providence Med. Ctr, 136 Wn.2d 136 (1998).
26 Id. at 144.
27 Id. at 149-50.
28 LAWS OF 2006, ch. 8, § 302.
29 Id.
30 Schroeder, 179 Wn.2d at 574.
31 Id. at 576.
32 Id. (quoting LAWS OF 2006, ch. 8, § 301).
33 RCW 4.16.350(3).
34 Maj. Op.
