The Washington State Supreme Court has overturned the state’s certificate of merit requirement for malpractice suits.
To prevent frivolous malpractice lawsuits, Washington and many other states enacted laws requiring potential plaintiffs to file a certificate of merit. In states that require it, a plaintiff has to get a qualified medical expert to sign off on a document attesting that there is merit to the person’s claim. Failure to do so will result in a case being dismissed.
In the Washington case, the plaintiff alleged that doctors at a medical center failed to diagnose her ovarian cancer for several years and by the time it was diagnosed, her chances for survival had dropped precipitously. The plaintiff’s case was dismissed because she failed to file a certificate of merit. Her attorneys appealed, and argued that the certificate of merit requirement is unconstitutional. The Washington’s State Supreme Court agreed, and held that the requirement was unconstitutional because it unduly hinders the right of access to courts, and because it violates the separation of power between the judiciary and legislature.
The court held that requiring a certificate of merit be filed before discovery has taken place puts an undue burden on the plaintiff. “Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims,” the court wrote. “Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed. Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs’ right of access to courts.”
The court noted that courts in other states—including Arkansas, Mississippi, and Ohio—have invalidated similar requirements. Last February, however, a similar challenge in New Jersey ended differently when a New Jersey appeals court decided that the state’s certificate of merit requirement was constitutional and was an important tool in screening out frivolous malpractice cases. About half of the states have certificate of merit or similar requirements for plaintiffs seeking to institute a malpractice suit.