In a prior blog on our list, we questioned the constitutionality of the Maryland law requiring medical malpractice plaintiffs to file certificates of meritorious claim, otherwise known as certificates of qualified expert, wherein an expert is required to attest that a breach of care occurred and caused the plaintiff injury. We questioned the statute due to its unfairness and the special burden it places upon malpractice plaintiffs to substantiate their claims at a very early stage in the litigation process.
Yesterday, the Washington Supreme Court ruled it’s own state certification statute unconstitutional as it unduly burdens the right of access to the courts and violates the separation of powers provisions of both the state and federal constitutions. The case, styled Putman v. Wenatchee Valley Med. Ctr., No. 80888-1 (en banc) represents a clear, articulate and well-reasoned opinion and is a “must read” for any attorney practicing plaintiff’s medical malpractice.
In holding the statute unconstitutional due to its undue burden upon the rights of malpractice plaintiffs, the court noted that the certification statute unfairly requires plaintiffs to produce evidence of negligence at a very early stage in the litigation process without the benefit of discovery that would otherwise be allowed in any other non-medical malpractice cases. Without needed discovery, plaintiffs and their attorneys are sometimes unable to substantiate or dispel what is otherwise contained in the medical records. This, the court concluded, hinders a plaintiff’s ability to develop the necessary facts to support their claims and subjects their case to premature dismissal.
In holding the statute unconstitutional due to its violation of the separation of powers doctrine, the court noted that the certification statute is procedural in nature and thus, when it interferes with a court rule governing procedure, the court rule must prevail over the conflicting legislative enactment. In Putman, the Washington court concluded that the requirement that a plaintiff submit evidence supporting a claim before having an opportunity to conduct discovery fundamentally conflicts with the judicial rule of civil procedure allowing for notice pleading (Rule 8) which requires only fair notice to the defendant of the facts upon which the claims are based. Likewise, the court ruled that lawyers in malpractice cases are not required by the judicial rules to submit verifying materials in malpractice claims as in other cases involving dissolution of marriage, separation declaration, and other type claims enumerated within that rule (Rule 11). Thus, the certification statute’s requiring validation of the merits conflicts with that rule.
The first and only time a Maryland court has addressed the constitutionality of Maryland’s certification statute was in the case of Attorney General v. Johnson. Since that time, Maryland’s certification statute has been expanded legislatively and judicially to the point where many legitimate claims are being dismissed due alleged defects in the certification process.
The attorneys at Belsky, Weinberg & Horowitz are uniquely familiar with Maryland’s certification requirement, having been plaintiff’s counsel in the seminal case of D’Angelo v. St. Agnes Healthcare. Please contact our firm for further information on the subject.