Last week the Washington Supreme Court extended a life preserver to plaintiffs who brought med mal claims against public hospitals between July 1, 2010 and December 27, 2012 without giving the hospitals 90-days presuit notice. The Court withdrew its earlier opinions in McDevitt v. Harborview and clarified that its ruling upholding the presuit notice requirement as to public hospitals would apply only prospectively. These substantive points aside, this decision also provides helpful guidance on two matters to judges and practitioners alike: (1) be precise about the scope of the holding, rule of law announced, or relief requested; and (2) don’t give up on motions for reconsideration just because they are rarely granted. More after the jump.
To understand McDevitt we have to go back three years to the Court’s ruling in Waples v. Yi. In that case, which involved med mal claims against a private healthcare provider, the Court invalidated the statutory 90-day presuit notice requirement for med mal suits as a violation of the separation of powers doctrine. This holding rested on the premise that it is for the judiciary to establish procedural rules governing the commencement of suits and that because the notice requirement was akin to a procedural rule, not a substantive standard, it conflicted with court rules and was therefore an unconstitutional encroachment on judicial power. In so ruling, the Court used arguably sweeping language and did not distinguish between suits against private providers and public institutions.
Just after Waples was decided, Glen McDevitt brought med mal claims against Harborview Medical Center, the preeminent public trauma hospital in the state located in Seattle. He filed suit just as the three-year limitations period for his tort claims was about to expire and without giving Harborview 90-days’ advance notice of his claims.
Harborview then moved for summary judgment on the ground that McDevitt failed to give notice. McDevitt argued that Waples struck down the 90-day notice requirement as a condition precedent for suits against for private and public defendants alike. The trial court denied Harborview’s motion, and the Supreme Court granted direct review.
Initially, the Court (5-4, Justice James Johnson) reversed the trial court, explaining that (1) the legislature, as part of its power to alter the scope of sovereign immunity, could set presuit notice requirements for claims against public hospitals as state agencies, similar to notice requirements for tort suits against the state and local governments; (2) the notice requirement passes the rational basis test because of pubic hospitals’ interest in tracking and covering potential liability and because the requirement does not impost an unreasonable burden on claimants against public hospitals compared to claimants against private providers; and (3) Waples, in hindsight, did not involve a facial challenge to the notice requirement but, rather, only an as-applied challenge, and it therefore did not invalidate the notice requirement as to public hospitals.
In dissent, Justice Chambers took the majority to task for creating two classes of med mal plaintiffs – those with claims against private providers and those with claims against public providers – which, he argued, was contrary to the legislature’s intent that public and private providers would be treated the same.
The controversy didn’t end there. In a rare move, the Court granted McDevitt’s motion for reconsideration, withdrew the earlier opinions, and issued new opinions, this time affirming the trial court.
On reconsideration, Justice James Johnson authored the lead opinion, which was joined by only two other justices (Owens and Wiggins). While rearticulating all of the reasons summarized above for upholding the presuit notice requirement for claims against public hospitals, the lead opinion reasoned further that this decision should apply only prospectively. Such prospective application is warranted, the opinion explained, when (1) a decision establishing a new rule overruling clear precedent upon which the parties relied or that was not clearly foreshadowed in the earlier decision, (2) retroactive application would impede policy objectives of the new rule, and (3) retroactive application would cause substantially inequitable results. Here, prospective-only application was appropriate because (1) Waples was a sweeping ruling but did not involve the state and thus did not foreshadow the situation here; (2) the legislature changed the notice requirement in the interim; and (3) related to point one, it would be inequitable to penalize McDevitt for relying on Waples.
Justice Chambers concurred in the result only, reemphasizing that the lead opinion was endorsing a notice scheme that the legislature never intended.
Justice Fairhurst, joined by Chief Justice Madsen, dissented in part, arguing that Waples could not be read as a sweeping ruling striking down the notice requirement on its face because the controversy did not involve a public hospital.