Schroeder v. Weighall , 179 Wash. 2d 566 ( 2014 )

Gordon McCloud, J.

¶1 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 of the Washington State Constitution, and we therefore reverse the trial court’s summary judgment order dismissing Schroeder’s medical malpractice action.

FACTS

¶2 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.

¶3 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.

¶4 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. Weighall asserted that the action 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

¶5 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 plaintiff’s minority, incompetency, or incarceration, but RCW 4.16.190(2) eliminates tolling for minors in medical malpractice actions.

¶6 Schroeder and his mother discovered Weighall’s alleged omission in 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, 2010. In reality, the combined effect of 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

¶7 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 of Review

¶8 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 I, Section 12

¶9 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 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 of Moses Lake, 145 Wn.2d 702, 735,42 P.3d 394 (2002) (Grant County I), rev’d in part, 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

1. RCW 4.16.190(2) Grants an “Immunity” under Article I, Section 12

¶10 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 Grant County II, 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)).

¶11 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. If the 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.

¶12 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.

¶13 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.”

¶14 This court has also recognized that “[m]edical malpractice claims are fundamentally negligence claims, rooted in the common law tradition.” Putman v. Wenatchee Valley Med. Ctr., PS, 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

¶15 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, 37-38, 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 (1936) (striking down provision in regulatory statute that grandfathered 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).

¶16 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.

¶17 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.

¶18 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 significantly greater effect on insurance premiums than the eight-year statute of repose did. Id. 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. of Resp’ts at 43 n.29.

¶19 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, 125 L. Ed. 2d 211 (1993))). But our reasonable ground analysis 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.

¶20 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 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] answering] a stale claim.” Br. of Resp’ts at 39 n.26 (quoting Laws of 2006, ch. 8, § 301).⁶

¶21 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 (citation omitted) (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 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.

¶22 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. of Resp’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.

¶23 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.

3. RCW 4.16.190(2) Also Raises Concerns Underlying Our State Equal Protection Cases

¶24 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.

¶25 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.” ’ ” Id. (internal quotation marks omitted) (quoting Am. Legion Post No. 149 v. Dep’t of Health, 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 Griffin v. Eller, 130 Wn.2d 58, 65, 922 P.2d 788 (1996) (citing In re Pers. Restraint of 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. 572-74. 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.

¶26 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 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) (collecting 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 semisuspect 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

¶27 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.

Madsen, C.J., and C. Johnson, Fairhurst, Stephens, Wiggins, and González, JJ., concur.

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 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. Id. 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 in DeYoung v. 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 If RCW 4.16.190(2) had not applied, the one-year statute of limitations 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 had run. RCW 4.16.350(3).

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 of Seattle 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. 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 of 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).

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] plaintiff’s 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 plaintiff’s 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))).

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.

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”).