FILE IN CLERKS OFFICE IUPREMS COURT, STATE OF WAll iiMCI1CM
DATE JAN 1 6 2014
~~9·
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
JARYD SCHROEDER,
Appellant, NO. 87207-4
v. ENBANC STEVEN WEIGHALL, M.D., and COLUMBIA BASIN IMAGING, P.C., a Washington corporation, Filed JAN 1 6 2014 Respondents,
and
KADLEC REGIONAL MEDICAL CENTER,
Defendant.
GORDON McCLOUD, }.-Petitioner Jaryd Schroeder challenges the·
constitutionality of RCW 4. 16. 190(2), which eliminates tolling of the statute of
limitations for minors in the context of medical malpractice claims. We hold that
RCW 4.16.190(2) violates article I, section 12 ofthe Washington State Constitution, Schroeder v. Weighall, MD., et al. No. 87207-4
and we therefore reverse the trial court's summary judgment order dismissing
Schroeder's medical malpractice action.
FACTS
On May 22, 2001, Schroeder sought treatment from the respondents, Dr.
Steven Weighall and Columbia Basin Imaging. Schroeder was nine years old at the
time and suffered from headaches, nausea, dizziness, weakness in his legs, and
double vision. He underwent an MRI (magnetic resonance imaging), which
Weighall reviewed and found to be normal. Schroeder's symptoms persisted.
On either November 9 or 19, 2009, 1 when he was 17, Schroeder underwent
another MRI. This time the radiologist who reviewed the image found an Arnold
Chiari Type I Malformation, a condition in which brain tissue protrudes into the
spinal canal. The radiologist also reviewed the 2001 MRI and concluded that the
condition had been present to the same extent at that time.
On January 13, 2011, the day before his 19th birthday, Schroeder filed a
medical malpractice action against Weighall, Columbia Basin Imaging, PC, and a
third party subsequently dismissed by stipulation. W eighall asserted that the action
1 The record contains conflicting information as to the date of the second MRI, but the difference is irrelevant to the questions presented here.
2 Schroeder v. Weighall, MD., et al. No. 87207-4
was barred by the statute of limitations codified at RCW 4.16.350 and subject to the
minority tolling exemption codified at RCW 4.16.190(2). 2
RCW 4.16.350 provides that a lawsuit alleging medical malpractice must be
filed within three years of the "act or omission" giving rise to the claim or one year
after the patient "discovered or reasonably should have discovered" that the injury
was caused by the act or omission in question. The statute also imputes a parent's
or guardian's knowledge to the injured minor. RCW 4.16.350. RCW 4.16.190(1)
provides that the statute of limitations applicable to any legal action shall be tolled
during a plaintiffs minority, incompetency, or incarceration, but RCW 4.16.190(2)
eliminates tolling for minors in medical malpractice actions.
Schroeder and his mother discovered W eighall' s alleged om1sswn m
November 2009. On that date, Schroeder was still a minor. If not for RCW
4.16.190(2), the one-year statute of limitations applicable to his claim would have
tolled until his 18th birthday on January 14, 201 0. In reality, the combined effect of
2 Weighall also argued that the action was barred by RCW 4.16.350(3), the eight- year statute of repose for medical malpractice actions, but the parties subsequently agreed to stay the proceedings pending this court's decision in Unruh v. Cacchiotti, 172 Wn.2d 98, 257 P.3d 631 (2011). In that decision, we held that RCW 4.16.350(3) applied only prospectively. Unruh, 172 Wn.2d at 110-11. When Weighall read Schroeder's first MRI in 2001, RCW 4.16.350 was not in effect, having been ruled unconstitutional by this court inDeYoungv. Providence Medical Center, 136 Wn.2d 136, 141,960 P.2d 919 (1998). The legislature reenacted the statute in 2006, but under Unruh it did not begin to run for Schroeder until 2006 and thus did not bar his action in January 2011. 3 Schroeder v. Weighall, MD., et al. No. 87207-4
RCW 4.16.350 and .190(2) placed Schroeder's January 13, 2011 filing date about
two months outside the statute of limitations. On that basis, the trial court dismissed
his action. 3
Schroeder appealed the dismissal directly to this court, arguing that RCW
4.16.190(2) violated article I, section 10 and article I, section 12 of the Washington
State Constitution.
ANALYSIS
Standard ofReview
We review the constitutionality of a statute de novo. Kitsap County v.
Mattress Outlet, 153 Wn.2d 506, 509, 104 P.3d 1280 (2005) (citing Ino Ino, Inc. v.
City of Bellevue, 132 Wn.2d 103, 114, 937 P.2d 154, 943 P.2d 1358 (1997)).
Because we conclude that RCW 4.16.190(2) violates article I, section 12, we do not
address Schroeder's article I, section 10 challenge.
Article L Section 12
Article I, section 12 of the Washington Constitution provides that "[n]o law
shall be passed granting to any citizen, class of citizens, or corporation other than
3 IfRCW 4.16.190(2) had not applied, the one-year statute oflimitations would have tolled until Schroeder's 18th birthday. Had this occurred, Schroeder's filing date would have fallen just within the one-year statute of limitations applicable to claims discovered after the typical three-year statute has run. RCW 4.16.350(3). 4 Schroeder v. Weighall, MD., et al. No. 87207-4
municipal, privileges or immunities which upon the same terms shall not equally
belong to all citizens, or corporations." As we have noted in several recent cases,
this court has construed article I, section 12 as "substantially similar" to the federal
equal protection clause for many, many years. Seeley v. State, 132 Wn.2d 776, 788,
940 P.2d 604 (1997) (collecting cases). In Grant County Fire Protection District
No.5 v. City ofMoses Lake, 145 Wn.2d 702,735,42 P.3d 394 (2002) (Grant County
I), rev 'd in part by Grant County Fire Protection District No. 5 v. City of Moses
Lake, 150 Wn.2d 791, 812, 83 P.3d 419 (2004) (Grant County II), however, we also
recognized that article I, section 12 differed from and was more protective than the
federal equal protection clause and required a very different .analysis in certain
situations. The Grant County cases acknowledged our state constitution's particular
concern with the "undue political influence" exercised by a privileged few and drew
on early decisions addressing that concern through the reasonable ground analysis.
Grant County II, 150 Wn.2d at 805-11. 4
4 These early decisions include Sherman Clay & Co. v. Brown, 131 Wash. 679, 680- 81, 231 P. 166 ( 1924) (invalidating ordinance that required sellers of secondhand goods to keep them for 10 days prior to sale but exempted sellers of"' stoves, furniture, or the total contents of any room or house bought on the premises where such goods have been in use'" (quoting Seattle Ordinance 45727)); State v. W. W. Robinson Co., 84 Wash. 246, 146 P. 628 (1915) (invalidating statute that exempted cereal and flouring mills from act imposing onerous conditions on other similarly situated persons and corporations); City ofSeattle v. Dencker, 58 Wash. 501, 108 P. 1086 (1910) (invalidating ordinance that imposed tax on sale of goods by automatic devices but not on sale of goods by hand); City of Spokane v. 5 Schroeder v. Weighall, MD., et al. No. 87207-4
1. RCW 4.16.190(2) Grants an "Immunity" under Article I, Section 12
In Grant County I, we held that article I, section 12, unlike the federal equal
protection clause, applies to special interest legislation-laws that confer a benefit
on a privileged or influential minority. Grant County I, 145 Wn.2d at 731. In the
second Grant County case, we modified that holding, recognizing that that
independent "privileges" analysis applies only where a law implicates a "privilege"
or "immunity" as defined in our early cases distinguishing the "'fundamental
rights"' of state citizenship. Grant County II, 150 Wn.2d at 812-13 (quoting State
v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902)).
After Grant County II, we have subjected legislation to a two-part test under
this "privileges" prong of article I, section 12 analysis. First, we ask whether a
challenged law grants a "privilege" or "immunity" for purposes of our state
constitution. Grant County II, 150 Wn.2d at 812. Ifthe answer is yes, then we ask
whether there is a "reasonable ground" for granting that privilege or immunity.
Grant I, 145 Wn.2d at 731.
Macho, 51 Wash. 322, 98 P. 755 (1909) (invalidating city ordinance that imposed criminal liability on employment agencies but not on other similarly situated business); and In re Habeas Corpus for Camp, 38 Wash. 393, 80 P. 547 (1905) (invalidating ordinance that prohibited the peddling of produce within city limits but exempted farmers who grew the produce themselves). 6 Schroeder v. Weighall, MD., et al. No. 87207-4
Not every benefit constitutes a "privilege" or "immunity" for purposes of the
independent article I, section 12 analysis. Rather, the benefits triggering that
analysis are only those implicating "fundamental rights . . . of . . . state . . .
citizenship." Vance, 29 Wash. at 458.
The benefit that RCW 4.16.190(2) confers is limited liability-an immunity
from suits pursued by certain plaintiffs. This court has long recognized that the
privileges and immunities contemplated in article I, section 12 include the right to
pursue common law causes of action in court. 5 Thus, at least where a cause of action
derives from the common law, the ability to pursue it is a privilege of state
citizenship triggering article I, section 12's reasonable ground analysis. A law
limiting the pursuit of common law claims against certain defendants therefore
grants those defendants an article I, section 12 "immunity."
This court has also recognized that "[m]edical malpractice claims are
fundamentally negligence claims, rooted in the common law tradition." Putman v.
5 Vance, 29 Wash. at 458 (fundamental rights of state citizenship include "the rights to the usual remedies to collect debts and to enforce other personal rights"); Alton V. Phillips Co. v. State, 65 Wn.2d 199,204,396 P.2d 537 (1964) (law that "expands the [only one particular] plaintiffs right of recourse in our courts" violates article I, section 12); Cotten v. Wilson, 27 Wn.2d 314, 317-20, 178 P.2d 287 (1947) (under article I, section 12, the legislature must have a "'reasonable ground"' for increasing a personal injury plaintiffs burden in actions against a particular class of defendant (quoting State ex rel. Bacich v. Huse, 187 Wash. 75, 80, 59 P.2d 1101 (1936), overruled on other grounds by Puget Sound Gillnetters Ass 'n v. Moos, 92 Wn.2d 939, 603 P.2d 819 (1979))). 7 Schroeder v. Weighall, MD., et al. No. 87207-4
Wenatchee Valley Med. Ctr., 166 Wn.2d 974, 982, 216 P.3d 374 (2009). RCW
4.16.190(2) limits the ability of certain plaintiffs-those whose injuries occurred
during childhood-to bring medical malpractice claims. It therefore grants. an
immunity (and burdens a privilege) triggering the reasonable ground test under
article I, section 12.
2. There Is No Reasonable Ground For Limiting Medical Malpractice Defendants' Liability to Patients Injured During Minority
The article I, section 12 reasonable ground test is more exacting than rational
basis review. Under the reasonable ground test a court will not hypothesize facts to
justify a legislative distinction. See, e.g., City of Seattle v. Rogers, 6 Wn.2d 31, 3 7-
38, 106 P.2d 598 (1940) (striking down regulatory exemption despite city's
argument that the exempted party constituted "a class by itself'). Rather, the court
will scrutinize the legislative distinction to determine whether it in fact serves the
legislature's stated goal. See, e.g., State ex rel. Bacich v. Huse, 187 Wash. 75, 82, 59
P .2d 1101 ( 193 6) (striking down provision in regulatory statute that grandparented
in protections for those holding gillnetting licenses in 1932-33, in part because it did
"not accomplish the purpose suggested by [the State's] argument"), overruled on
other grounds by Puget Sound Gillnetters Ass 'n v. Moos, 92 Wn.2d 939, 603 P.2d
819 (1979)).
8 Schroeder v. Weighall, MD., et al. No. 87207-4
This court addressed a statute similar to RCW 4.16.190(2) in DeYoung v.
Providence Medical Center, 136 Wn.2d 136, 141, 960 P.2d 919 (1998), where we
held that an eight-year statute of repose applicable to medical malpractice claims
violated article I, section 12. In the pre-Grant County cases we applied rational basis
review and found that the statute of repose could not survive even that most
deferential form of scrutiny. DeYoung, 136 Wn.2d at 149. While we recognized
that addressing escalating insurance rates was a legitimate legislative goal, we also
found clear evidence in the legislative record that the challenged statute would not
advance that goal in any appreciable way. Id. at 149-50.
The evidence in question was a report by the National Association of
Insurance Commissioners finding that less than one percent of all insurance claims
nationwide were made by adults pursuant to incidents of malpractice occurring more
than eight years prior. Id. at 149. In light of that evidence we concluded that the
"relationship between the goal of alleviating any medical insurance crisis and the
class of persons affected by the eight-year statute of repose is too attenuated to
survive rational basis scrutiny." Id.
Under DeYoung, the relationship of the class of persons affected by RCW
4.16.190(2) to the goal of reducing insurance costs must be deemed "too attenuated
to survive [even] rational basis scrutiny" unless RCW 4.16.190(2) will have a
9 Schroeder v. Weighall, MD., et al. No. 87207-4
significantly greater effect on insurance premiums than the eight-year statute of
repose did. I d. The respondents in this case offer no evidence for this greater effect,
but they speculate that it might have motivated the legislature to enact the minority
tolling statute: "[T]he legislature, mindful of DeYoung, [might have] believed that.
. . medical malpractice claims of nondisabled minors are numerous enough that
eliminating tolling as to their claims would materially affect [medical malpractice
insurance] rates." Br. ofResp'ts at 43 n.29.
Such speculation might suffice under rational basis review. DeYoung, 136
Wn.2d at 148 ("the rational basis standard may be satisfied where the 'legislative
choice ... [is] based on rational speculation unsupported by evidence or empirical
data"' (quoting Fed. Commc 'ns Comm 'n v. Beach Commc 'ns, Inc., 508 U.S. 307,
315,113 S.Ct.2096, 125L.Ed.2d211 (1993))). Butourreasonablegroundanalysis
does not permit us to hypothesize facts. Huse, 187 Wash. at 82; Rogers, 6 Wn.2d at
37. If we are to uphold RCW 4.16.190(2), that law must be justified in fact as well
as theory. Neither the respondents nor the legislative record provides any factual
support for the theory that RCW 4.16.190(2) will reduce insurance premiums.
In addition to their insurance premium theory, the respondents advance
another argument on behalf of the minority tolling statute: that it serves the important
purpose of limiting stale medical malpractice claims. The respondents assert that
10 Schroeder v. Weighall, MD., et al. No. 87207-4
stale claims are particularly burdensome in the medical malpractice context, where
defendants are subject to rapidly changing standards of care. They note (correctly)
that the legislature has expressed its interest, in this context, in preventing "even one
defendant [from] answer[ing] a stale claim." Br. of Resp'ts at 39 n.26 (quoting
LAWS OF 2006, ch. 8, § 301). 6
We recognize-as we did in DeYoung-that "compelling a defendant to
answer a stale claim is a substantial wrong, []and setting an outer limit to operation
of the discovery rule is [thus] an appropriate aim." DeYoung, 136 Wn.2d at 150
(citing Ruth v. Dight, 75 Wn.2d 660, 665, 453 P.2d 631 (1969)). But RCW
4.16.190(2) is not addressed to stale claims generally, it is (at best) addressed to stale
claims arising from medical malpractice injuries to minors. Thus, the principle for
which the statute really stands is not that "compelling even one defendant to answer
a stale claim is a substantial wrong." LAWS OF 2006, ch. 8, § 301. Rather, it is that
a stale claim is a substantial wrong when it arises from a medical incident that
occurred when the plaintiff was under 18. According to this legislative scheme, a
stale claim is not a substantial wrong-at least, not substantial enough to warrant
6 The legislature also included this statement of purpose in its 2006 amendment to RCW 4.16.350, which reinstated the eight-year statute of repose struck down in DeYoung. 11 Schroeder v. Weighall, MD., et al. No. 87207-4
preventative legislation-when it is brought by a plaintiff who was unable to sue at
the time of injury for any reason other than minority.
The respondents attempt to explain this distinction by arguing that "parents or
guardians may, and often do, sue on an injured child's behalf." Br. ofResp'ts at 19.
According to the respondents, an injured minor's parent or guardian has a "vested
interest in recover[y ]," which prevents RCW 4.16.190(2) from having any
significant preclusive effect on minors' medical malpractice claims. Wash. Supreme
Court oral argument, Schroeder v. Weighall, No. 87207-4 (May 16, 2013), at 39
min., 28 sec., audio recording by TVW, Washington State's Public Affairs Network,
available at http://www.tvw.org.
This explanation, of course, directly conflicts with the respondents' assertion
that the minority tolling statute will eliminate so many medical malpractice claims
that insurance rates will drop as a result. If the statute is to be justified on the basis
that it will greatly reduce medical malpractice claims, it cannot also be justified on
the ground that it will not prevent very many plaintiffs from having their day in
court. If it is to be justified on the basis that it is a substantial wrong to permit even
one stale medical malpractice claim to proceed, then there can be no rational
explanation for the legislature's failure to eliminate tolling for other incompetent
plaintiffs.
12 Schroeder v. Weighall, MD., et al. No. 87207-4
3. RCW 4.16.190(2) Also Raises Concerns Underlying Our State Equal Protection Cases
RCW 4.16.190(2) also raises concerns other than special interest favoritism.
While the statute clearly confers a benefit on one group of citizens, it also has the
potential to burden a particularly vulnerable minority. Our Grant County analysis
emphasized article I, section 12's concern with special interest legislation, but it did
not overrule our long line of article I, section 12 cases addressing laws that burden
vulnerable groups. In those cases-our state equal protection cases based on article
I, section 12-we have characterized article I, section 12 analysis as "substantially
similar" to federal equal protection analysis. Seeley, 132 Wn.2d at 787 n. 7.
Those state equal protection cases therefore hold that article I, section 12
requires us to apply different levels of scrutiny depending on whether the challenged
law burdened a suspect class, a fundamental right, an important right or semisuspect
class, or none of the above. E.g., State v. Hirschfelder, 170 Wn.2d 536, 550, 242
P.3d 876 (2010). Those cases clearly establish that we apply intermediate scrutiny
to laws that burden both "'an important right and a semi-suspect class not
accountable for its status."' I d. (internal quotation marks omitted) (quoting Am.
Legion Post No. 149 v. Dep't ofHealth, 164 Wn.2d 570, 609, 192 P.3d 306 (2008)
(quoting Madison v. State, 161 Wn.2d 85, 103, 163 P.3d 757 (2007))); see also
13 Schroeder v. Weighall, MD., et al. No. 87207-4
Griffin v. Eller, 130 Wn.2d 58, 65, 922 P.2d 788 (1996) (citing In re Runyan, 121
Wn.2d 432, 448, 853 P.2d 424 (1993)); Westerman v. Cary, 125 Wn.2d 277, 294,
892 P.2d 1067 (1994); State v. Schaaf, 109 Wn.2d 1, 17-19, 743 P.2d 240 (1987).
RCW 4.16.190(2) burdens an important right-a "privilege" for purposes of the
article I, section 12 reasonable ground analysis. See supra, pp. 6-8. We have
recognized the significance of this interest in other contexts as well, 7 and it is
undeniably "important" for purposes of our state equal protection analysis.
Notably, RCW 4.16.190(2) also has the potential to burden a particularly
vulnerable population not accountable for its status. In Schaaf, we declined to hold
that children were a semisuspect class, but we did so because we concluded that
children in general were more socially integrated-and thus better represented in the
democratic process-than the "'discrete and insular minorities"' considered suspect
classes for purposes of federal equal protection analysis. Schaaf, 109 Wn.2d at 17-
19 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 472 n.24, 105
S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (Marshall, J., concurring in part and dissenting
7 E.g., Unruh, 172 Wn.2d at 111 n.9 (noting that challenge to RCW 4.16.190(2) raises '"compelling"' state constitutional questions about the right of access to the courts (quoting Gilbert v. Sacred Heart Med. Ctr., 127 Wn.2d 370, 378, 900 P.2d 552 (1995))); Hunter v. N. Mason High Sch., 85 Wn.2d 810, 814, 539 P.2d 845 (1975) ("right to be indemnified for personal injuries is a substantial property right, . . . in many cases fundamental to the injured persons' physical well-being and ability to continue to live a decent life"). 14 Schroeder v. Weighall, MD., et al. No. 87207-4
in part)). While RCW 4.16.190(2) applies by its terms to minors generally, it is
evident from the arguments presented in this case that the law places a
disproportionate burden on the child whose parent or guardian lacks the knowledge
or incentive to pursue a claim on his or her behalf. Courts in numerous other
jurisdictions have recognized this problem, noting that statutes analogous to RCW
4.16.190(2) have the greatest impact on children in the foster care system, children
whose parents are themselves minors, and children whose parents are simply
unconcerned. See Piselli v. 75th St. Med., 371 Md. 188, 215-19, 808 A.2d 508
(2002) (collectin·g cases). It goes without saying that these groups of children are
not accountable for their status. Thus, even if minors generally do not constitute a
semi suspect class under article I, section 12, the group of minors most likely to be
adversely affected by RCW 4.16.190(2) may well constitute the type of discrete and
insular minority whose interests are a central concern in our state equal protection
cases.
CONCLUSION
For the foregoing reasons, we find that RCW 4.16.190(2) violates article I,
section 12 of the Washington Constitution. We therefore reverse the trial court's
order dismissing Schroeder's claim.
15 Schroeder v. Weighall, MD., et al. No. 87207-4
WE CONCUR:
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16 Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J.M. Johnson, J.
No. 87207-4
J.M. JOHNSON, J. (dissenting)-Statutes of limitation are critical to
the effective functioning of our civil litigation system. Such statutes provide
finality in situations where memories are likely to have faded, records have
been misplaced, and it is onerous to prove the relative standard of care at the
time of the incident. Statutes of limitation further encourage claimants to
bring actions in a timely manner while evidence is still fresh.
Although tort claims are subject by the legislature to various statutes of
limitation, RCW 4.16.190 provides a tolling privilege to minors with
nonmedical malpractice claims and incapacitated adults. This type of
privilege is permissible where, as here, there is a reasonable ground for
granting it. Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150
Wn.2d 791, 812, 83 P.3d 419 (2004) (Grant County II); Grant County Fire
Prot. Dist. No. 5 v. City of Moses Lake, 145 Wn.2d 702, 731, 42 P.3d 394
(2002) (Grant County I).
-1- Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J.M. Johnson, J.
In crafting the tolling exception in RCW 4.16.190(2), the legislature
properly considered the differences between minors and adults, as well as the
special circumstances facing medical malpractice defendants. RCW
4.16.190(2), therefore, comports with article I, section 12 of the Washington
Constitution. Furthermore, the statute is rationally related to the legitimate
state objective of decreasing medical malpractice costs and reducing the
number of stale claims. Consequently, the statute comports with the
Fourteenth Amendment to the United States Constitution. The plain language
of RCW 4.16.190(2) and RCW 4.16.350 operate to bar Jaryd Schroeder's
claim. Because I would affirm summary judgment, I dissent.
Statutes of limitations in general operate to immunize alleged
tortfeasors from lawsuits once claims become stale. Many courts, including
this one, have recognized that the legislature has a legitimate interest in
protecting potential defendants against stale claims. See, e.g., Stenberg v. Pac.
Power & Light Co., 104 Wi1.2d 710, 714, 709 P.2d 793 (1985) (noting that
statutes of limitation have the valid goal of protecting against stale claims);
Ruth v. Dight, 75 Wn.2d 660, 664-66, 453 P.2d 631 (1969) (recognizing for
various reasons that "compelling one to answer stale claims in the courts is in
-2- Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J .M. Johnson, J.
itself a substantial wrong"); Deen v. Egleston, 597 F.3d 1223, 1233 (11th Cir.
201 0) (observing that "[d]efending law suits is hard; defending malpractice
suits is harder; and defending old malpractice suits is harder still"); Owens v.
White, 380 F.2d 310,315 (9th Cir. 1967) (acknowledging that justice requires
that physicians not be faced with stale claims because the passage of time
eliminates their ability to present a meritorious defense).
RCW 4.16.190 has historically tolled statutes of limitation during a
period of incompetency, which covers those under the age of 18. RCW
4.16.190 and RCW 4.16.350 were amended in 2006 as part of a complicated
legislative compromise reached by our legislators, then-Governor Gregoire,
the trial lawyers, physicians, hospital administrators, and government staff.
Waples v. Yi, 169 Wn.2d 152, 168, 234 P.3d 187 (2010) (J.M. Johnson, J.,
dissenting). The 2006 amendment package was part of a legislative effort to
manage the problems created by what the legislature deemed to be excessive
medical malpractice and other litigation. Id. The legislature considered the
2006 amendments to address '"one of the most important issues facing the
citizens of Washington State."' Id. (quoting LAWS OF 2006, ch. 8, § 1). As a
result, tolling no longer applies to minors with medical malpractice claims
pursuant to RCW 4.16.190(2).
-3- Schroeder v. Weighall, MD., eta!., No. 87207-4 Dissent by J .M. Johnson, J.
A. RCW 4.16.190(2) Comports With Article I, Section 12 of the Washington State Constitution
In the article I, section 12 privileges and immunities context, legislation
is analyzed under a two-part test: (1) whether the challenged law grants a
privilege or immunity under our state constitution, Grant County II, 150
Wn.2d at 812, and, (2) if yes, whether there is a reasonable ground for granting
that privilege or immunity, Grant County I, 145 Wn.2d at 731. In this case,
the majority is correct that RCW 4.16.190 grants a privilege or immunity. It
is, however, based on reasonable ground. Consequently, the statute comports
with article I, section 12.
I agree .with the majority that RCW 4.16.190 grants a privilege or
immunity by affecting certain plaintiffs' ability to bring a cause of action after
his or her incapacity is terminated. Majority at 7; Madison v. State, 161 Wn.2d
85, 119-21, 163 P.3d 757 (2007) (J.M., Johnson, J., concurring) (setting forth
the rights that the term "privileges and immunities" has historically
encompassed, including the right "to institute and maintain actions of any kind
in the courts of the state" (quoting Corfield v. Coryell, 6 F. Cas. 546, 551-52
(C.C.E.D. Pa.1823) (No. 3,230))). Although I conclude that RCW 4.16.190
grants a privilege, I firmly disagree with the majority's assertion that there is
no reasonable ground for the lines drawn by the statute. See majority at 8-12.
-4- Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J.M. Johnson, J.
In performing a privileges and immunities analysis, we must be
extremely cautious to ensure that the classes are framed correctly. Here, it is
possible to define the classes in two different ways. The majority adopts
Schroeder's untenable framing of the classes--that RCW 4.16.190 grants
healthcare providers an immunity from defending against stale claims
originating from injuries to minors. This framing of the classes defies logic
and does violence to article I, section 12 privileges and immunities. By
framing the classes in such a way, the majority overlooks the plain fact that
statutes of limitation are the rule and tolling provisions are the exception.
RCW 4.16.190 does not create an impermissible immunity from
lawsuits. Instead, it establishes a permissible privilege of tolling for minors
with nonmedical malpractice tort claims and incapacitated adults. Framing
the classes in this way is more in line with the plain language of the statute,
which is phrased in terms of granting tolling to potential plaintiffs rather than
exempting healthcare providers from lawsuits.
The grounds for granting a tolling privilege to minors with nonmedical malpractice tort claims and incapacitated adults are reasonable
The legislative purpose in passing RCW 4.16.190(2) and the other 2006
amendments was two-fold: (1) to assist in solving a crisis in the medical
-5- Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J.M. Johnson, J.
insurance industry and (2) to prevent the substantial wrong of making even
one defendant have to answer a stale claim. LAWS OF 2006, ch. 8, §§ 301-
302. It goes without saying that the longer the gap between the act, omission,
or injury and the filing of a lawsuit, the more likely it is that memories will
fade, records will be misplaced, and witnesses will go missing. Stale claims
increase costs associated with litigation-costs that are ultimately passed on
to patients. This justification rests on common sense and the economics of
litigation rather than hypothetical facts beyond the scope of the reasonable
ground test.
Eliminating the stale claims of those exempted from tolling by RCW
4.16.190(2) should reduce the total number of stale claims defendants must
face. It is important to recognize, however, that eliminating all categories of
tolling would have this same effect. Consequently, there must be a reasonable
ground for this seemingly incremental approach.
The immediate and obvious distinction between incapacitated minors
and incapacitated adults is that minors are much more likely than adults to
have someone supervising them who has legal authority to act on their behalf.
The legislature can reasonably assume that minors' interests are being
protected by a parent or guardian. See Harlfinger v. Martin, 435 Mass. 38,47
-6- Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J.M. Johnson, J.
n.14, 754 N.E.2d 63 (2001) (upholding a statute eliminating tolling for minors
and finding that the legislature may reasonably assume that the interests of
minors will be protected by their guardians). Parents and guardians are
endowed with the power under our state laws to make a myriad of decisions
on behalf of their children.
Moreover, there is a valid distinction between medical malpractice and
other tort claims. In revising the tolling provision, the legislature simply
accounted for scientific and technological realities present in medical
malpractice cases. Massachusetts' highest court has wisely noted that
[t]he problem of defending stale medical malpractice claims is further exacerbated by the fact that the standard of care is itself subject to rapid and dramatic change, fueled by advances in medical science and technology. From a defendant's perspective, demonstrating the standard of care of many years past, and that the defendant's treatment of the plaintiff did not deviate from it, can be very difficult when, by modern standards, the same care would represent a major deviation.
Harl.finger, 435 Mass. at 43 n.8 (rejecting an equal protection challenge to a
statute eliminating tolling for minors). As a consequence, the harm done by
requiring a healthcare provider to defend against stale claims is often more
profound than for other categories of tortfeasors. The distinctions underlying
RCW 4.16.190(2) are, without a doubt, real and substantial.
-7- Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J.M. Johnson, J.
Ultimately, RCW 4.16.190(2) represents the legislature's pursuit of a
specific policy agenda. The legislature is the governmental body responsible
for identifying policy goals and implementing them. Unlike this court, the
legislature possesses mechanisms for gathering public input such as hearings
and committees. The United States Supreme Court has long recognized "that
judicial inquiries into legislative or executive motivation represent a
substantial intrusion into the workings of other branches of government." Vill.
of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 n.18, 97
S. Ct. 555, 50 L. Ed. 2d 450 (1977). We should accordingly refrain from
second-guessing the legislative motivation behind RCW 4.16.190(2) unless
we have evidence to justify such suspicion. We do not. I would, therefore,
hold that RCW 4.16.190(2) is constitutional under article I, section 12.
B. The Majority Properly Refrains from Addressing the Freestanding Article I, Section 10 Argument
The majority properly declines to address the argument that RCW
4.16.190(2) runs afoul of article I, section 10 of the Washington State
Constitution, deciding the case solely on article I, section 12 grounds. See
majority at 4. Although I would hold that RCW 4.16.190(2) comports with
article I, section 12, I would also decline to address any freestanding article I,
section 10 claim.
-8- Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J.M. Johnson, J.
Nowhere does Schroeder argue that article I, section 10 alone provides
a sufficient basis for invalidating RCW 4.16.190(2). Amicus curiae
Washington State Association for Justice Foundation (WSAJF) alone raises
the argument that article I, section 10 provides a freestanding basis to
invalidate RCW 4.16.190(2). Br. of Amicus Curiae WSAJF at 4-5.
As a general rule, we will decide a case only on the basis of the issues
argued by the parties in their briefs. RAP 12.l(a); see Salstrom 's Vehicles,
Inc. v. Dep't of Motor Vehicles, 87 Wn.2d 686, 690, 555 P.2d 1361 (1976).·
Consequently, we avoid basing our decisions on issues raised only by amici
curiae. E.g., State v. Clarke, 156 Wn.2d 880, 894, 134 P.3d 188 (2006);
Rabon v. City of Seattle, 135 Wn.2d 278, 291 n.4, 957 P.2d 621 (1998);
Schuster v. Schuster, 90 Wn.2d 626, 629, 585 P.2d 130 (1978). For this
reason, I would decline to decide the case on the basis of a freestanding article
I, section 10 claim.
C. RCW 4.16.190(2) Comports With the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
Schroeder contends that RCW 4.16.190(2) violates the equal protection
clause of the Fourteenth Amendment. The federal equal protection clause
requires that similarly situated persons receive equal treatment. State v.
Harner, 153 Wn.2d 228, 235, 103 P.3d 738 (2004). The majority also raises -9- Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J.M. Johnson, J.
concerns under our state equal protection cases. Majority at 13-15. Our state
equal protection cases have characterized our state analysis as "substantially
similar" to federal equal protection analysis. Seeley v. State, 132 Wn.2d 776,
787 n.7, 940 P.2d 604 (1997).
In analyzing state and federal equal protection challenges, we apply one
of three levels of scrutiny: strict scrutiny, intermediate scrutiny, or rational
basis. Harris v. Charles, 171 Wn.2d 455, 462, 256 P.3d 328 (2011) (quoting
Harner, 153 Wn.2d at 235-36).
Here, we must apply rational basis scrutiny. Minors are not a suspect
class or a semisuspect class. State v. Schaaf, 109 Wn.2d 1, 19, 743 P.2d 240
(1987); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,441,
105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Tunstall v. Bergeson, 141 Wn.2d
201,226, 5 P.3d 691 (2000) (reaffirming that rational basis applies to juvenile
claims (citing In reBoot, 130 Wn.2d 553, 572-73, 925 P.2d 964 (1996))).
Schroeder concedes that rational basis must be applied. Br. ofPet'r at 30.
In order to pass rational basis scrutiny, "the legislative classification is
upheld unless the classification rests on grounds wholly irrelevant to the
achievement of legitimate state objectives." Harner, 153 Wn.2d at 235-36.
This test is extremely deferential to legislative determinations. Those
-10- Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J.M. Johnson, J.
attacking a classification that is reviewed under the rational basis standard .
"have the burden 'to negat[ e] every conceivable basis which might support
it."' Fed. Commc 'ns Comm 'n v. Beach Commc 'ns, Inc., 508 U.S. 307, 315,
113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993) (quotingLehnhausen v. Lake Shore
Auto Parts Co., 410 U.S. 356, 364, 93 S. Ct. 1001, 35 L. Ed. 2d 351 (1973)).
The legislature did not single out RCW 4.16.190(2) when stating the
purposes behind its 2006 amendments. It is clear, however, from the
statement of purpose attached to RCW 4.16.350 that the legislative intent was
to help reduce medical malpractice insurance rates and prevent defendants
from having to defend against stale claims. See LAws OF 2006, ch. 8, §§ 3 01-
302. To the extent that healthcare providers face fewer claims, it is likely that
their medical malpractice insurance premiums will decrease. The benefits of
such premium decreases will be passed on to Washington state citizens. The
legislature undoubtedly has broad authority and discretion over this type of
social and economic policy. See Beach Commc 'ns, 508 U.S. at 313. RCW
4.16.190(2) is rationally related to legitimate state objectives. Accordingly,
RCW 4.16.190(2) does not violate the equal protection clause of the
Fourteenth Amendment or state equal protection embodied in article I, section
12.
-11- Schroeder v. Weighall, MD., et al., No. 87207-4 Dissent by J.M. Johnson, J.
When crafting RCW 4.16.190(2), the legislature properly considered
the differences between minors and adults, as well as the unique
circumstances surrounding medical malpractice defense. The statute passes
muster under both the reasonable ground test of article I, section 12, as well
as rational basis scrutiny required by the equal protection clause of the
Fourteenth Amendment. The plain language ofRCW 4.16.190(2) and RCW
4.16.350 operates to bar Schroeder's claim. Accordingly, this court should
affirm summary judgment.
-12- Schroeder v. Weighall, MD., eta!., No. 87207-4
-13-