HB 2741

Title: An act relating to health care claims against state and governmental health care providers arising out of tortious conduct.

Brief Description: Concerning health care claims against state and governmental health care providers arising out of tortious conduct.

Sponsors: Representatives Rodne and Eddy; by request of Attorney General.

Hearing Date:

Staff: Edie Adams (786-7180).

Background:

A tort claim against either the state or a local government may not be filed in court until the claimant complies with certain notice requirements established in statute, called the "claim filing statute." One of the purposes of the claim filing statute is to allow governmental entities time to investigate, evaluate, and settle claims prior to the instigation of a civil proceeding. A tort claim against the state must be presented to and filed with the Office of Risk Management Division. A tort claim against a local governmental entity must be presented to an agent designated by the local governmental entity to receive the claims.

A claim must be presented on a standard claim form, maintained by the Office of Risk Management Division, that contains specified information, including a description of the injury or damages, the conduct or circumstances that brought about the injury or damage, the names of all persons involved, and the amount of damages claimed. A claimant may not commence a civil tort action against the state or a local governmental entity until 60 days after the claim is presented. The statute of limitations for the claim is tolled during this 60 day period.

In 2009 legislation was enacted that exempted claims based on injuries resulting from health care from the requirements of the state and local government claim filing statutes. The legislation specified that these health care-related claims are governed solely by the procedures set forth in the law governing civil actions for injuries resulting from health care (health care actions).

The law governing health care actions provides that any action based upon a health care provider's professional negligence may not be commenced unless the defendant has been given at least ninety days' notice of the intention to commence the action. This 90-day notice requirement for health care actions was established in 2006 as part of comprehensive legislation addressing medical malpractice issues, including civil liability for injuries resulting from health care.

In 2010 the Washington Supreme Court invalidated the 90-day notice requirement for health care actions in the case Waples v. Yi. The Court found that the statute violated separation of powers principles because and it irreconcilably conflicts with court rules governing the commencement of actions and it is a procedural rule that falls within the powers of the judicial branch to establish rules governing how lawsuits are initiated and maintained.

Waples v. Yi involved a suit against a private health care provider. A case currently on direct review at the Washington Supreme Court, McDevitt v. Harborview, raises the issue of whether the 90-day notice requirement for health care actions remains valid with respect to health care actions against governmental entities, based on the fact that Article II, § 26 of the Washington Constitution gives the Legislature the authority to direct by law the manner in which suits may be brought against the state.

Summary of Bill:

Provisions of the state and local government claim filing statutes that exempt claims involving injuries from health care are eliminated. A civil action against a state or local government entity involving injuries from health care may not be commenced until after the claim is presented to the governmental entity in accordance with the requirements of the claim filing statutes.

Appropriation: None.

Fiscal Note: Not requested.

Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is passed.