For the second time, the Washington State Supreme Court has declared unconstitutional part of the 2006 medical professional liability reform that was intended to curb medical malpractice lawsuits. The first time was in the fall of 2009, when the court struck down a law requiring a certificate of merit from a medical expert before suing for medical malpractice. The court held that the law violated “both the separation of powers and the right of access to courts.”

This month, the court struck down the requirement that providers be given a 90-day notice before a medical malpractice suit could be filed. The decision was based on two cases: Waples v. Yi, and Cunningham v. Nicol. The Waples case involved a woman suing her dentist for negligent administration of novocaine, which caused physical disability and paralysis. The Cunningham case involved a suit against a radiologist who told a patient that her MRI was normal when she actually had a brain tumor. Both plaintiffs filed their cases without giving a 90-days notic to the defendants, and both plaintiffs lost their lawsuits and their state court appeals because of their failure to give the requisite notice. In a consolidated case, the Washington Supreme Court reversed the lower courts and held that the notice requirement was unconstitutional. In a 6-3 decision, the Court, similar to the 2009 decision, held that the requirement violates the separation of powers and right of access to courts, and that the law “does not address the primary rights of either party and deals only with the procedures to effect those rights.” 

“If these two simple reforms cannot survive in Washington, it creates serious concerns as to whether other reforms will survive in the future,” read a statement from Physicians Insurance Mutual Group, the largest medical professional liability writer in the state.