7.14.2006
BREAKING DEVELOPMENTS IN LONG TERM CARE AND
SENIOR HOUSING LAW
Medical Malpractice Reform Adds Additional Mandatory
Requirements to Plaintiffs, Defendants and Counsel
Pursuant to legislation enacted in the last legislative session (effective June 7, 2006), potential
claimants in any civil action against a health care provider for personal injuries based upon
alleged professional negligence face more stringent filing requirements, which could help curb
baseless claims. RCW 7.70 et seq (regarding actions for injuries arising from health care),
which was amended by this new law, includes nursing homes in its definition of a health care
provider, and many of the new provisions of this law will affect personal injury/wrongful death
cases filed against nursing homes.
The legislature passed the new requirements after voters rejected dueling initiatives I-330 and
I-336 last fall. All health care providers, including nursing homes, hospitals, clinics and health
maintenance organizations should be aware of the changes to the existing law, and their
potential affects on medical negligence claims.
Here are some highlights of the new law:
Re-enacts eight-year statute of repose on all medical malpractice claims, which means
that in no event shall an action be commenced more than eight years after the act or
omission occurred;
Requires plaintiffs to file a certification of merit with their complaint;
Promotes voluntary arbitration of all claims;
Mandates that Plaintiffs provide all potential Defendants with notice of intent to file a
lawsuit 90 days prior to commencement of the action;
Provides stricter sanctions for attorneys who file frivolous lawsuits;
Forbids admission into evidence any statement or conduct expressing apology, fault or
a general sense of benevolence made by a health care provider within 30 days of the
act or omission, or within 30 days of discovery of the act or omission; and
Allows admission of evidence of compensation by someone other than the plaintiff or
their family (i.e., insurance).
Certification of Merit
Prior to the enactment of this law, plaintiffs were able to file suits against health care
providers without having a medical expert already buttressing their complaint. Now, plaintiffs
and their counsel will have to file a “certificate of merit” by a health care provider who meets
the qualifications of an expert (in the field of the alleged professional negligence) with their
complaint. The certificate must be executed by a qualified expert, and must state that he/she
believes that there is a reasonable probability that the defendant’s conduct did not follow the
accepted standard of care required to be exercised by the defendant. If there is more than one
defendant in the action, the plaintiff must file a certificate of merit for each defendant. If the
plaintiff fails to file a certificate of merit for each defendant with the complaint, the
plaintiff’s case against that defendant will be dismissed. A plaintiff is excused from filing a
certificate of merit with the complaint if the suit is filed within 45 days of the running of the
statute of limitations. In this situation, however, the plaintiff must file the certificate of merit
no later than 45 days of filing the complaint or the case will be dismissed.
Health care providers will be shielded from a dismissal resulting from the failure to file a
certificate, which means that the filing of the claim can not be used against health care
providers in professional liability insurance rate settings, personal credit history, or
professional licensing and credentialing. The effect of this new law is twofold. First, aggressive
plaintiff’s counsel should be inhibited from filing baseless claims due to the requirement of
obtaining expert certification prior to filing suit. Second, even if a claim is filed without a
certificate of merit, health care providers will not have their reputation or finances damaged
by an unfounded claim.
Voluntary Arbitration
In enacting the new provisions, the legislature declared its intent to provide parties the option
for a more fair, efficient and streamlined alternative to trials. One of the tools used to
implement this goal is the provision establishing voluntary arbitration. Either the plaintiff or
defendant may elect to submit the dispute to arbitration by including such election in the
complaint/answer filed at the commencement of the action. Once one party has elected to
submit the dispute to arbitration, the other side must agree in order to arbitrate. There are,
however, a few caveats that health care providers should keep in mind.
If either side elects not to arbitrate, the party choosing not to arbitrate must file a declaration
with the court, along with either the complaint or answer. The declaration must contain a
statement that the attorney representing the party presented the party with a copy of the
provisions of the newly enacted law before commencing the action/filing of the answer, and
that the party elected not to submit this dispute to arbitration. Both plaintiffs and defendants
must comply with this new provision. If either the plaintiff or the defendant, or both, do not
elect to arbitrate upon filing the complaint or answer, the parties can agree to submit the
matter to arbitration at a later time.
New Pre-Suit Notice Requirements/Mandatory Mediation
Prior to commencing any action based upon a health care provider’s professional negligence,
the plaintiff must give defendants at least 90 days notice of the intention to commence the
2
action. If the notice is served within 90 days of the expiration of the statute of limitations, the
time to file suit will be extended to the end of the 90-day period.
After filing the pre-suit notice and before a superior court trial, all causes of action shall be
subject to mandatory mediation. The rules for mandatory mediation have not changed, but the
new 90-day notice enables mediation to take place prior to the commencement of the case
should the parties so agree. This may facilitate a cost-effective and efficient outcome that is
beneficial to all parties. The requirement of mandatory mediation, however, does not apply to
actions subject to mandatory arbitration and to actions where the parties, subsequent to the
initiation of the claim, agreed to submit the claim to arbitration.
For more information, please contact the Long Term Care and Senior Housing Law Group at:
Lane Powell PC
206.223.7000 Seattle
503.778.2100 Portland
360.754.6001 Olympia
longtermcareandseniorhousing@lanepowell.com
www.lanepowell.com
We provide The Long Term Care and Senior Housing Law Hot Sheet as a service to our clients,
colleagues and friends. It is intended to be a source of general information, not an opinion or
legal advice on any specific situation, and does not create an attorney-client relationship with
our readers. If you would like more information regarding whether we may assist you in any
particular matter, please contact one of our lawyers, using care not to provide us any
confidential information until we have notified you in writing that there are no conflicts of
interest and that we have agreed to represent you on the specific matter that is the subject of
your inquiry.
© 2006 Lane Powell PC
Seattle - Portland - Anchorage - Olympia - London
3