Bennett v. United States

539 P.3d 361

Certification from the United States District Court for the Western District of Washington in Bette BENNETT, Plaintiff,

v.UNITED STATES of America, Defendant.

No. 101300-1

Supreme Court of Washington, En Banc.

Argued June 13, 2023

Filed December 7, 2023

Darrin E. Bailey, Bailey Onsager, P.C., 1109 1st Ave. Ste. 501, Seattle, WA, 98101-2988, for Plaintiff.

Teal Luthy Miller, Attorney at Law, 700 Stewart St. Ste. 5220, Seattle, WA, 98101-4438, Kristen R. Vogel, US Attorney for Western District of WA, 700 Stewart Street, Suite 5220, Seattle, WA, 98101, for Defendant.

Sara Avet Cassidey, Washington Attorney General's Office, 7141 Cleanwater Dr. Sw., P.O. Box 40126, Olympia, WA, 98504-0126, for Amicus Curiae on behalf of State of Washington.

Gregory Mann Miller, Carney Badley Spellman PS, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, Christine Stanley, 2001 E. Madison Street, Seattle, WA, 98122, for Amicus Curiae on behalf of Planned Parenthood.

Isaac Chandler Prevost, Carney Badley Spellman, P.S., 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, for Amicus Curiae on behalf of Cedar River Clinics.

Valerie Davis McOmie, Attorney at Law, 4549 Nw. Aspen St., Camas, WA, 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA, 99201-0305, for Amicus Curiae on behalf of Wa State Assoc. for Justice Foundation.

Gregory Mann Miller, Isaac Chandler Prevost, Carney Badley Spellman, P.S., 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, for Amici Curiae on behalf of Wa State Medical Association, Wa State Hospital Association, American Medical Association.

YU, J.

¶1 This case concerns the constitutionality of Washington's eight-year statute of repose for medical malpractice actions. The statute of repose provides "that in no event shall an action be commenced more than eight years after" the "alleged professional negligence," subject to certain exceptions not applicable here. RCW 4.16.350(3). If a medical malpractice action is "not commenced" within eight years, then the action "shall be barred"—even if the patient is unable to determine the cause of their injury within that time frame. Id.

¶2 In this case, plaintiff Bette Bennett alleges that she incurred a traumatic brain injury caused by defendant United States’ medical negligence. However, the cause of Bennett's injury was not diagnosed until the eight-year repose period had already expired. As a result, it was impossible for Bennett to timely commence her medical malpractice action. The United States accordingly moved to dismiss her complaint as time barred. Before ruling on the motion to dismiss, the federal district court certified two questions to this court, asking whether the statute of repose violates (1) the privileges and immunities clause of article I, section 12 of the Washington Constitution or (2) the right to access the courts pursuant to article I, section 10 of the Washington Constitution.

¶3 In answering these questions, we reaffirm the legislature's broad authority to set time limits for commencing an action. We also recognize that when exercising this authority, the legislature must weigh competing interests and make difficult choices as a matter of policy. We do not seek to constrain the legislature's authority or to second-guess its policy decisions. However, it is our duty to faithfully apply the Washington Constitution as interpreted in this court's precedent. In accordance with our precedent, we must conclude that the medical malpractice statute of repose in RCW 4.16.350(3) implicates the heightened protections of our state privileges and immunities clause. We must also conclude that as enacted in 2006, the statute of repose does not satisfy article I, section 12 ’s "reasonable ground" test. Therefore, the answer to the first certified question is yes: RCW 4.16.350(3) ’s eight-year statute of repose for medical malpractice actions violates the privileges and immunities clause of article I, section 12 as a matter of independent state law. We decline to reach the second certified question.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶4 Bennett is married to a service member in the United States Navy.¹ On May 18, 2009, Bennett underwent sinus surgery at Bremerton Naval Hospital, after which "splints were placed [in Bennett's nose] to keep her nasal airway open." Clerk's Papers (CP) at 11.

¶5 One week later, Bennett "experienced significant bleeding from her nose" and was taken by ambulance to the Bremerton Naval Hospital emergency room. Id. The on-call physician examined Bennett, removed the splints from her nose, and inserted nasal packing. When the physician "pushed the packing up her nose, [Bennett] heard a noise that sounded like cracking, felt acute pain, and passed out." Id. Bennett was rushed to the operating room to control her nosebleed. She was later discharged, but she "returned on May 29, 2009 to have the packing removed from her nasal cavity." Id. at 12.

¶6 Bennett "subsequently developed a complex constellation of symptoms including migraines, malaise, light sensitivity, memory loss, and other neurocognitive impairment." Id. Bennett sought treatment from "a series of neurologists and other specialists," but they "were unable to diagnose the cause of her symptoms." Id. Finally, in August 2017, a neuropsychologist determined that Bennett's symptoms were "consistent with a traumatic brain injury" and referred her to another specialist. Id. In December 2017, the specialist diagnosed Bennett "with traumatic brain injury to her prefrontal cortex caused by the nasal pack insertion in [May] 2009." Id.

¶7 In August 2018, Bennett filed an administrative tort claim with the Department of the Navy in accordance with federal law. See 28 U.S.C. § 2675. The Department of the Navy denied her claim and informed Bennett that she had six months to commence an action in federal district court. Within six months, Bennett filed a complaint for medical malpractice in the United States District Court for the Western District of Washington pursuant to the Federal Tort Claims Act (FTCA), Pub. L. No. 79-601, 60 Stat. 812-852.

¶8 The United States moved to dismiss Bennett's complaint as time barred based on the eight-year statute of repose in RCW 4.16.350(3). The United States argued that "[a]t the latest, the alleged negligent acts or omissions ... occurred on or prior to May 29, 2009." CP at 28. Therefore, pursuant to the statute of repose, Bennett's "cause of action was extinguished eight years later on May 29, 2017"—several months before her traumatic brain injury was diagnosed, and over a year before she filed her administrative tort claim. Id. In response, Bennett did not challenge the United States’ timeline or assert that there were any relevant factual disputes. Instead, Bennett argued that the statute of repose could not apply as a matter of law, both because it is preempted by the FTCA and because it violates the Washington Constitution.

¶9 Before ruling on the motion to dismiss, the federal district court certified two questions to this court, asking whether the statute of repose violates article I, sections 10 and 12 of the Washington Constitution. We declined to answer the certified questions at that time because the federal district court had not yet ruled on Bennett's FTCA preemption argument, which "could make it unnecessary to reach the state law issues." Ord., Bennett v. United States , No. 99220-7, at 2 (Wash. Dec. 4, 2020).

¶10 The federal district court subsequently denied the United States’ motion to dismiss, ruling that the statute of repose was preempted by the FTCA. However, the Ninth Circuit Court of Appeals reversed on interlocutory appeal, holding that the FTCA "incorporates and applies state laws that serve as statutes of repose rather than overriding them." Bennett v. United States , 44 F.4th 929, 931 (9th Cir. 2022). Therefore, the Ninth Circuit Court of Appeals remanded to the federal district court to decide "the threshold question of the constitutionality of Section 4.16.350 under the Washington state constitution. Depending on the outcome of that issue, this action may either be dismissed for lack of jurisdiction or proceed to the merits of Bennett's claims." Id. at 938.

¶11 On remand, the federal district court certified the same two questions to this court regarding the constitutionality of the statute of repose. We retained the certified questions for decision and accepted six amici briefs on the merits.²

ISSUES

¶12 A. Does the statute of repose in RCW 4.16.350(3)³ violate the privileges and immunities clause of the Washington State Constitution, article I, section 12 ?

¶13 B. Does the statute of repose in RCW 4.16.350(3) unconstitutionally restrict a plaintiff's right to access the court in violation of the Washington State Constitution, article I, section 10 ?

ANALYSIS

A. Background law on commencement of civil actions

¶14 To provide context for the questions presented, it is first necessary to review Washington law regarding timely commencement of civil actions generally and medical malpractice actions specifically.

¶15 Before the 1970s, medical malpractice actions "were governed by the limitations period in the general tort statute of limitations." Gunnier v. Yakima Heart Ctr., Inc., P.S. , 134 Wash.2d 854, 860, 953 P.2d 1162 (1998). The general tort statute of limitations "describes the actionable event as the accrual of a cause of action." Ruth v. Dight , 75 Wash.2d 660, 666, 453 P.2d 631 (1969) (emphasis added) (citing former RCW 4.16.010 (1891); former RCW 4.16.080(2) (1937)); see also RCW 4.16.005. Thus, cases addressing timely commencement of civil actions often focused on when the action "accrued." E.g. , Ruth , 75 Wash.2d 660, 453 P.2d 631 ; Lindquist v. Mullen , 45 Wash.2d 675, 277 P.2d 724 (1954), overruled in part on other grounds by Ruth , 75 Wash.2d at 667, 453 P.2d 631.

¶16 "In many instances an action accrues immediately when the wrongful act occurs." 1000 Va. Ltd....