9th Circuit: Wash. Law on Malpractice Suits Doesn’t Apply

A Washington state law that requires plaintiffs to file a declaration declining arbitration when filing a medical malpractice suit does not apply in federal courts, the 9th Circuit Court of Appeals ruled.

The appellate panel reversed a decision by the US District Court in Tacoma that dismissed a lawsuit filed by a former jail inmate against medical providers at the Pierce County Detention Center because he did not file the declaration required by Revised Code of Washington section 7.70A.020.

The law is one of the last vestiges of a package of tort reform bills passed in 2006 which had many of its provisions overturned by the Washington Supreme Court. The high court ruled in 2009 that a law that requires plaintiffs to file certificates of merit was unconstitutional. In 2014, the court overturned a law that made minors subject to the same statute of limitations as other plaintiffs with medical malpractice claims.

The 9th Circuit panel said no state appellate court has yet ruled on RCW 7.70A.020. The statute requires plaintiffs to file a declaration declining arbitration when commencing a medical malpractice claim.

“This is in direct conflict with Rule 3’s assertion that only the complaint must be filed to commence an action,” the panel’s opinion says.

Jeffery S. Martin was incarcerated in 2017 for violating the terms of probation that were set when he convicted of several misdemeanors in 1992, including assault and driving under the influence of intoxicants. While in jail, he sought treatment for a condition that caused severe pain, dryness and itchiness to both eyes.

An amended civil complaint filed in December 2020 states that medical staff at the jail — who were employed by NaphCare, an Alabama corporation — ignored his complaints initially and did not administer prescribed medications after he was finally seen by an “outside ophthalmologist.”

Eventually Martin had to undergo surgery to relieve dangerous high pressure levels in his eyes, but afterward staff at the jail continued to deny him needed medications, he alleges. As a result, Martin — once a construction foreman — has no depth perception or peripheral vision and is extremely sensitive to light, making him “effectively blind,” the complaint says.

Martin’s malpractice lawsuit names Pierce County, NaphCare, Dr. Miguel Balderrama, nurses and other jail staff as defendants. The suit says NaphCare practices “a de facto policy of displaying deliberate indifference” to inmates’ medical needs to reduce costs.

US District Judge Benjamin H. Settle dismissed Martin’s malpractice claims last March because he did not file the required declaration.

On appeal, Martin’s attorney, Bardi D. Martin, argued that that the statute is unenforceable in Washington courts and does not create any penalty for failing to comply, unlike the other statutes that passed as part of the tort-reform package in 2006. He said enforcing the declaration requirement in federal courts would encourage defendants to remove cases to federal courts in order to dismiss them for non-compliance.

The 9th Circuit did not rule on whether the declaration requirement is enforceable in state court, but did decide that the statute conflicts with federal rules of procedure. The panel said there is a “growing consensus” among the federal circuit courts that requirements that plaintiffs provide certificates stating that their cases have merit to not apply in federal courts. Washington’s declaration requirement similarly conflicts with federal rules, which require only that plaintiffs file a civil complaint.

“We hold that Washington’s arbitration declaration requirement does not apply in the federal courts,” the opinion says. “The district court should have applied the federal rules, not RCW 7.70A.020 in this case.”

The 9th Circuit remanded the case to the trial court for further proceedings.