Sunday, September 20, 2009
The President famously announced last week in his healthcare address to a joint session of Congress that he would order the Agency for Healthcare and Research Quality, a division of the Department of Health and Human Services, to support state demonstration projects on medical liability reform. The initiative appears to be an attempt to reach across the aisle to Republican opponents of the President's plan, who have argued that medical liability reform--or "tort reform"--is an essential part of any healthcare reform plan. The President's memo for the Secretary of HHS is here.
On the very same day last week that the President sent his memo to the Secretary, the Supreme Court of Washington issued an opinion reminding us that whatever the federal government may support, there still may be some limits on medical liability reform. Particularly, state constitutional "open courts" provisions may restrain some states in "demonstrating" their reforms.
"Open courts" provisions simply say that courts must be open and available to litigants. Maryland's open courts provision, one of the earliest, is typical:
That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land.
At least forty state constitutions have such a clause; they trace their roots directly to Magna Carta. (The federal constitution, of course, does not have an explicit open courts clause. But courts often look to the open courts language in Marbury v. Madison as a sign of federal constitutional protection: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.") State courts by and large have interpreted open courts provisions to mean that the legislature can't curtail state court claims that existed at the time of the adoption of their state's provision. That principle seems clear enough, but these provisions get interesting against the myriad particular (and often slight, but significant) ways that states encroach on access. (Shameless self-promotion: For more on open courts and access to justice, see my 2007 piece on open courts and the right to counsel.)
Open courts jurisprudence is notoriously muddled. But there is one consistency: Open courts attacks on state medical liability reform and, more generally, tort reform--strict damage caps, short statutes of limitations, and the like--have mostly failed.
This may be all the more reason to pay attention to Washington's ruling.
Washington required plaintiffs in medical malpractice claims to file a "certificate of merit" prior to initiating suit. The state supreme court held that this violated the state's constitutional open courts principles. The analysis is remarkably short; it begins with the Marbury quote above, and continues:
The people have a right of access to the courts; indeed, it is "the bedrock foundation upon which rest all the people's rights and obligations." This right of access to courts "includes the right of discovery authorized by the civil rules." As we have said before, "[i]t is common legal knowledge that extensive discovery is necessary to effectively pursue either a plaintiff's claim or a defendant's defense."
Requiring medical malpractice plaintiffs to submit a certificate prior to discovery hinders their right of access to the courts. Through the discovery process, plaintiffs uncover the evidence necessary to pursue their claims. Obtaining the evidence necessary to obtain a certificate of merit may not be possible prior to discovery, when health care workers can be interviewed and procedural manuals reviewed. Requiring plaintiffs to submit evidence supporting their claims prior to the discovery process violates the plaintiffs' right of access to courts. It is the duty of the courts to administer justice by protecting the legal rights and enforcing the legal obligations of the people. Accordingly, we must strike down this law.
There's certainly nothing unconstitutional (federal) about the federal government funding state demonstration projects related to medical liability reform. But unless the President's demonstration program includes a preemption provision--which would seem both unlikely (because the whole point is to support new state laws experimenting with reform) and extraordinary (because it could only be designed to impede state constitutional rights that might get in the way of state reforms)--states are still bound by their constitutions. The Washington Supreme Court's ruling is a healthy (pardon the pun) reminder that state constitutional rights are still relevant and may play an important role in state reform efforts.