Time limits on medical liability suits protect doctors, patients

Tanya Albert Henry , Contributing News Writer

A Washington woman didn’t file a lawsuit within the eight-year time frame allowed under a state law that lawmakers carefully thought out. She claims the law is unconstitutional and now the state Supreme Court will decide whether she can go forward with a negligence claim stemming from treatment she received in 2009.

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The court’s decision has the potential to upend a reasonable time period set to—in the legislature’s own words—“balance the interests of injured plaintiffs and the health care injury,” physicians tell the court.

With that in mind, the Litigation Center of the American Medical Association and State Medical Societies, the Washington State Medical Association (WSMA) and the Washington State Hospital Association (WSHA) are urging the court to not allow the lawsuit to proceed and rule that the state’s eight-year statute of repose does not violate Washington’s constitution or patients’ ability to access courts.

Instead, the law protects patients and health professionals alike, the brief says. The history behind the law shows that it must remain intact.

“The legislature expressly balanced the interests of injured plaintiffs and the health care industry in 2006 to set an outer limit to the discovery rule and restore finality to potential liability for health care providers, while retaining judicially-created exceptions,” the brief says. “It protects the public interest by ensuring the availability of health services by balancing the competing interests, thus promoting the public welfare.”

The law protects against claims that are stale, based on untrustworthy evidence or place undue burdens on physicians or other defendants because the events happened so long ago.

Eliminating the time limit, “would be harmful to the practice of medicine and the provision of health care throughout the state,” the AMA, WSMA and WSHA brief tells the court in the case, Bennett v. United States of America.

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.

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The case comes to the Washington Supreme Court from the federal U.S. District Court for the Western District of Washington.

Bette Bennett sued government-employed physicians at Naval Hospital Bremerton in Washington. A week after the sinus surgery in 2009, significant bleeding sent her back to the hospital where physicians inserted packing.

Later, she experienced migraines, malaise, light sensitivity, memory loss and more, but it wasn’t until 2017 that a neuropsychologist diagnosed her as having a traumatic brain injury to her prefrontal cortex caused by the 2009 nasal pack insertion.

Bennett said time limitations under the Federal Tort Claims Act (FTCA) should override the Washington state statute of repose, allowing her to bring her lawsuit. She further argues that the Washington statute of repose is unconstitutional.

Ultimately, the 9th U.S. Circuit Court of Appeals ruled that the FTCA did not override the Washington statute. However, it sent the case back to the District Court for the constitutionality question to be answered. That is the question now before the Washington Supreme Court.

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The law in question is a result of representatives from the WSMA, WSHA and the Washington State Trial Lawyers Association coming together in 2006 to work with lawmakers, the governor’s office, the state insurance commissioner and others to agree on the best parameters for how much time can go by before a plaintiff can no longer pursue medical liability lawsuit.

The brief says the “plaintiff’s argument disregards the deliberative policymaking process and the public collaboration behind it, as well as the legislature’s role as policy-setter for the finality rules for claims. Instead, she asks the court to commandeer the role of policymaker to invalidate the Legislature’s policy determinations. This is inconsistent with the court’s deference to the legislature’s policy setting role in this area.”

And, the brief says, it would be harmful to the practice of medicine.