Glen A. McDevitt, Respondent, v. Harborview Medical Center et al., Petitioners, 179 Wash. 2d 59

Chambers, J. ¶24 (concurring in result only) — While I concur in result, the lead opinion is wrong in its statutory analysis, ignores the clear direction of the legislature to avoid inconsistent presuit notice requirements, fails to treat similar government and private entities the same, and reaches an absurd result. It confuses what the legislature could constitutionally do with what the legislature did do in the 2009 medical malpractice reform legislation.

The lead opinion acknowledges that “[t]he purpose of these exemptions was to avoid inconsistent presuit notice requirements in medical malpractice cases” (referring to former RCW 4.92.110 (2006) and former RCW 4.96.020(4) (2006)), a statement with which I agree. Lead opinion at 68. But the lead opinion’s result is just the opposite.

Under the lead opinion’s reasoning, government health care providers are given the benefit of a presuit notice requirement that other health care providers are not, and government health care providers were given the benefit of a more generous presuit notice requirement than any other government entity was at the time. This is an absurd result. Clearly, as recent legislative action amply shows, it is not what our legislature intended either.

Laws of 2013, ch. 82; Laws of 2012, ch. 250. ¶25 At the time this case was filed, all other government entities were entitled to 60 days’ notice of a claim before a suit could be filed. This presuit notice requirement gives public agencies the opportunity to promptly settle meritorious claims. This uniformity is important to maintain an even playing field with understandable rules.

However, under the lead opinion’s strained logic, a portion of a statute we have previously held to be unconstitutional is resuscitated to create a very special and privileged group of government health care providers who enjoyed 90 days of presuit notice. To explain why government health care providers, and only government health care providers, are entitled to 30 more days, the lead opinion simply says, “This difference is de minimis.” Lead opinion at 68.

It was either the intent of the legislature to create an ultraspecial class or it was not; when discerning the intent of the legislature, the de minimis standard is not an analytical standard we use. If we are to have inconsistent presuit notice requirements among government agencies, the legislature, not this court, should create them. ¶26 The lead opinion has confused what the legislature could do under

article II,

section 26 of our state constitution with what our legislature intended to do in its most recent attempt at medical malpractice reform. The lead opinion offers no rational basis for giving government health care providers a very special 90-day preclaim filing requirement, when all other state and local entities are entitled to only a 60-day preclaim filing period, and private health care providers are entitled to none. Our legislature clearly does not think that is fair; it has since amended the law to give government hospitals the same claims period as other government agencies.

Laws of 2012, ch. 250; see also Laws of 2013, ch. 82. The lead opinion’s result leaves us not with legislation that was painstakingly drafted after deep discussion with the stakeholders. At best, it results in law that is simply an accident.

At worst, it results in law that is in clear derogation of the legislature’s intent, either for consistent preclaim periods among government agencies or for malpractice reform that treats governmental and private health care providers the same. ¶27 I believe we should begin, as we did the first time this statute was before us, with the principle that the law applies equally to all. “ ‘The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.

One of the first duties of government is to afford that protection.’ ” Putman v. Wenatchee Valley Med. Ctr., PS, 166 Wn.2d 974, 979, 216 P.3d 374 (2009) (quoting Marbury v. Madison, 5 U.S. (1 Crunch) 137, 163, 2 L. Ed. 60 (1803)). This is not merely rhetorical. The very language of the repudiation of sovereign immunity reflects our legislature’s embrace of that principle: “The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.” RCW 4.92.090.

The 2009 legislature went further with respect to health care providers. The general provision establishing the preclaim notice requirement, former RCW 4.92.100 (2009), was amended to exclude health care injuries, providing more equal treatment for plaintiffs and defendants alike. Former RCW 4.92.100(1) (“Claims involving injuries from health care are governed solely by the procedures set forth in

chapter 7.70 RCW and are exempt from this chapter.”). This change again expressed the legislature’s intent at the time that public health care providers would be treated exactly like private health care providers. Thus, RCW 4.92.090 and former RCW 7.70.100 (2006) are in absolute harmony with the legislature’s intent to treat government and private entities (in this case, health care providers) the same. f 28 I recognize that this does not end our inquiry.

As the lead opinion properly recognizes, under our constitution, the legislature has the power to “direct by law, in what manner, and in what courts, suits may be brought against the state.” Wash. Const, art. II, § 26. I agree that the legislature may discriminate and provide special protections for state and local governments within constitutional limits. ¶29 But having the power to grant preferential treatment to yourself is not the same as having exercised that power.

If the legislature wants to carve out an exception to its admonition that it was to be treated to the same extent as private persons and corporations, it can do so. If the legislature wants to act under

article II,

section 26 to bestow on public health care providers special treatment or a competitive advantage over private hospitals, the legislature should take that action, not this court. Given the competing interest between private and public health care providers, this should be debated in the legislature and not imposed by this court. ¶30 Today, the court writes a statute that our legislature did not consider and could not have intended.

Article II,

section 26 does not vest this court with the authority to legislate. ¶31 However, because I do agree that the lead opinion’s decision should be applied prospectively only, I concur in the result today. This is a unique case. In Waples v. Yi, 169 Wn.2d 152, 161, 234 P.3d 187 (2010), this court held the presuit notice requirement of former RCW 7.70-.100(1) was unconstitutional on its face. Waples used sweeping language, not the language of an “as applied” holding. The plaintiff, indeed, the entire world, was entitled to rely on this court’s holding.

The lead opinion has now seen fit to exempt government health care defendants from that rule. Under these exceptional circumstances, I agree the holding should be prospective only. C. Johnson, Stephens, and González, JJ., concur with Chambers, J. Pro Tem. Justice Tom Chambers is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution

article IV,

section 2(a). We have held that the State’s power to discriminate is not unfettered. In Hunter v. North Mason High School, 85 Wn.2d 810, 818-19, 539 P.2d 845 (1975), Justice Utter wrote that we cannot uphold nonclaim statutes simply because they serve to protect the public treasury. Absent that justification, there is no basis, substantial or even rational, on which their discrimination between governmental plaintiffs and others can be supported.

They thus cannot stand under the equal protection clause of the Fourteenth Amendment or Const, art. 1, § 12. (Footnote omitted.) I strongly object to the lead opinion’s dismissive labeling of language in Hunter as dictum. We are not a federal court; we are not limited by the federal constitution’s “cases” and “controversies” requirement that gave rise to its restrictive “dicta” jurisprudence. U.S. Const, art. III, § 2; see Wash. State Farm Bureau Fed’n v. Gregoire, 162 Wn.2d 284, 319 n.32, 174 P.3d 1142 (2007) (Chambers, J., concurring). See generally Michael C. Dorf, Dicta and

Article III, 142 U. Pa. L. Rev. 1997 (1994). Reasoning in a Washington State Supreme Court opinion does not become “dictum” merely because a later court finds it to be inconvenient. Again, the legislature must comply with other constitutional principles. We must not forget that exercises of

article II,

section 26 power are subject to other constitutional constraints. ZDI Gaming, Inc. v. Wash. State Gambling Comm’n, 173 Wn.2d 608, 619, 268 P.3d 929 (2012); Hunter, 85 Wn.2d at 818-19. It may be that a well-drawn statute would not run afoul of the equal protection principles laid down in Hunter. The lead opinion is certainly correct that this court has upheld other claims periods that favor the State and its subdivisions. See, e.g., Medina v. Pub. Util. Dist. No. 1. of Benton County, 147 Wn.2d 303,313,53 P.3d 993 (2002) (upholding 60-day waiting period); Hall v.

Niemer, 97 Wn.2d 574, 581, 649 P.2d 98 (1982) (upholding claim filing condition precedent that placed “reasonable procedural burden [that was] not substantial and [did] not constitute a real impediment to relief”); Coulter v. State, 93 Wn.2d 205, 207, 608 P.2d 261 (1980) (upholding claim filing statute that did not reduce the statute of limitations). But in those cases, we were faced with statutes where the legislature deliberately and publicly exercised its

article II,

section 26 power to “ ‘direct by law, in what manner, and in what courts, suits may be brought against the state.’ ” Hall, 97 Wn.2d at 581 (quoting Const, art. II, § 26). We were not faced with a statute that was transformed from one that benefited all categories of providers equally to benefiting the State only. A statute that draws purely arbitrary categories violates equal protection. Medina, 147 Wn.2d at 314 (citing State v. Thorne, 129 Wn.2d 736, 771, 921 P.2d 514 (1996)). I also respectfully disagree with the lead opinion’s equal protection analysis.

A statute that draws purely arbitrary categories violates equal protection. See, e.g., Medina, 147 Wn.2d at 314 (citing Thorne, 129 Wn.2d at 771). Due to this court’s holding today, former RCW 7.70.100 has become purely arbitrary, at least in relation to the statute the legislature thought it was drafting. The legislature’s constitutional authority to direct how the State may be sued is subject to the equal protection clause, and equal protection is offended when power is wielded in an arbitrary manner. See generally id. at 324-29 (Chambers, J., dissenting).