McNeal v. Allen

621 P.2d 1285, 95 Wash. 2d 265, 1980 Wash. LEXIS 1443

• Court: Washington Supreme Court
• Decided: December 31, 1980
• Docket: 46896-6
• Status: Published

Opinions

Rosellini, J. —

The respondent brought this action for medical malpractice, seeking damages in the amount of $500,000. Responding to the complaint, the appellants asserted a counterclaim that this allegation violated RCW 4.28.360, and was injurious to the reputation and peace of mind of the appellant doctors. They also filed a third party complaint against the respondent attorneys based upon the same allegations. These pleadings were dismissed upon motion of the respondents. At the same time, the amount of the alleged damage was stricken from the complaint.¹ RCW 4.28.360 provides:

In any civil action for personal injuries, the complaint shall not contain a statement of the damages sought but shall contain a prayer for damages as shall be determined. A defendant in such action may at any time request a statement from the plaintiff setting forth separately the amounts of any special damages and general damages sought. Not later than fifteen days after service of such request to the plaintiff, the plaintiff shall have served the defendant with such statement.

The trial court correctly held that the statute is procedural, rather than substantive, and reveals no legislative intent to abrogate the common law rule that allegations in pleadings are absolutely privileged and cannot form the basis for a damage action.

This rule is found in the law of defamation.

Allegedly libelous statements, spoken or written by a party or counsel in the course of a judicial proceeding, are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief. Gold Seal Chinchillas, Inc. v. State, 69 Wn.2d 828, 420 P.2d 698 (1966). The defense of absolute privilege or immunity avoids all liability. Gold Seal Chinchillas, Inc. v. State, supra; W. Prosser, Torts § 114 (4th ed. 1971); Restatement (Second) of Torts §§ 586-87 (1977). The amount of damages is obviously pertinent to the relief sought, and allegations with respect to it fall within the protection of the rule.

The privilege of attorneys is based upon a public policy of securing to them as officers of the court the utmost freedom in their efforts to secure justice for their clients. The attorney's purpose in publishing defamatory matter, his belief in its truth, or even his knowledge of its falsity, are of importance only in determining the amenability of the attorney to the disciplinary power of the court of which he is an officer. See Restatement (Second) of Torts § 587 (1977). In the same vein, the privilege of parties to judicial proceedings is based upon the public interest in according to all men the utmost freedom of access to the courts of justice for the settlement of their private disputes. Restatement (Second) of Torts, supra.

The fact that statements made in pleadings are absolutely privileged does not mean that an attorney may abuse the privilege with impunity. As we pointed out in Twelker v. Shannon & Wilson, Inc., 88 Wn.2d 473, 564 P.2d 1131 (1977), the attorney is subject to the supervision and discipline of the court. Under CR 12(f), immaterial, impertinent or scandalous matter may be stricken from the pleadings. The court may reprimand, fine and punish, as well as expunge from the records statements which exceed proper bounds. Twelker, supra. These are all procedures by which the court can see that attorneys abide by the provisions of RCW 4.28.360.

This section originated as part of a bill to regulate and restrict malpractice actions. The bill was amended and enacted in Laws of 1975, 2d Ex. Sess., ch. 56. As originally proposed the section applied only to such actions. It was amended to apply to all personal injury actions and was made a part of RCW 4.28, pertaining to commencement of actions.

The parties are agreed that the records of the legislature are silent as to the reasons for the enactment. The defendants quote from a Report of the Secretary's Commission on Medical Malpractice, Department of Health, Education and Welfare, at page 38, which indicates that its purpose was to eliminate unnecessary friction caused between the medical and legal professions by claims for "astronomical damages." According to the report, such claims

attract sensational newspaper coverage, impose needless anxiety and often unfounded notoriety upon defendant physicians, create a feeling of unfair persecution in the medical world and are of no special benefits to the plaintiff-patient.

It has also been suggested that publication of the fact that a patient is suing his doctor for a large sum may inspire others to bring similar suits, and that it may influence prospective jurors.

We do not know which, if any, of these considerations the legislature had in mind. Whatever the reasons for introducing this procedural innovation, the legislature made it apply to all personal injury actions, not just to medical malpractice actions.

The appellants maintain that the disciplinary actions which may be taken by the trial court are inadequate, because the damage has already been done with the filing of the complaint. For this reason, they suggest that the court should find implied in the statute a right of action for noncompliance with its provision. While a cause of action for damages might be a greater deterrent to deliberate disregard of the statutory provisions, there is no reason to anticipate that deliberate violations will occur. There is no showing that the legislature had any such prospect in mind. It is to be presumed that officers of the court will endeavor to abide by the rules governing procedure. When a violation does occur, it will be more than likely due to inadvertence springing from force of habit, as was the case here, than to willful disregard of the statute. The sanctions which the court may impose should be sufficient to correct old habits within a reasonable time, and if deliberate violations occur, the court can make the punishment severe enough to discourage emulation.

When similar provisions have been before the courts of Pennsylvania and New York (the only jurisdictions in which we find any authorities upon this subject), they have been held to be procedural, rather than substantive; and the remedy afforded has been to strike the offending allegations. See Dries v. Gregor, 90 Misc. 2d 398, 395 N.Y.S.2d 135 (1977); and Paytas v. Pennsylvania Power & Light Co., 29 Lehigh County L.J. 448 (C.P. 1959).

We can find in the statute no hint that the legislature intended to do anything more than amend a procedural rule. It recognized that the rule was procedural, rather than substantive, when it included it in the chapter dealing with pleadings. Furthermore, the statute, being in derogation of the common law, must be strictly construed and no intent to change that law will be found, unless it appears with clarity. In re Estate of Tyler, 140 Wash. 679, 684, 250 P. 456, 51 A.L.R. 1088 (1926); Kuehn v. Faulkner, 136 Wash. 676, 241 P. 290, 45 A.L.R. 571 (1925); Gem Trading Co. v. Cudahy Corp., 22 Wn. App. 278, 588 P.2d 1222 (1978), aff'd on other grounds, 92 Wn.2d 956, 603 P.2d 828 (1979). Nowhere in the section is there expressed an intent to create a cause of action for noncompliance with the procedural requirement set forth therein, nor is there any language from which such an intent can be implied.

The judgment is affirmed.

Stafford, Horowitz, Dolliver, Hicks, and Williams, JJ., and Hamilton, J. Pro Tern., concur.

1 It is not disputed that the statement of the amount of damages claimed was inadvertent. Prior to the enactment of RCW 4.28.360, the amount of the claim properly was included in the complaint, both under statute (RCW 4.32.040(3)) and court rule (CR 8(a)). This practice was deemed necessary to give notice to the defendant, and because of the rule that the judgment may not exceed the amount claimed in the complaint, unless the claim has been amended before the case has been submitted. See McKelvie v. Hackney, 58 Wn.2d 23, 360 P.2d 746 (1961); Ware v. Phillips, 77 Wn.2d 879, 468 P.2d 444 (1970). Whether, under RCW 4.28-.360, that rule has been abrogated in personal injury actions, is a question not presently before the court.