Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

  • Taking Chances2:24

          In DeYoung v. Providence Medical Center, the Supreme Court of Washington State was asked to consider whether its Statute of Repose, which prevented injured plaintiff’s from filing medical malpractice cases more than eight years after the alleged negligent treatment, violated the Washington State Constitution.  The State’s high court overturned its Statute of Repose, and allowed the case to proceed.   

            In 1996, Shirlee DeYoung filed a malpractice claim against her doctor and his corporate employer for medical treatment she had received nearly sixteen years earlier.  In 1980, Ms. DeYoung received radiation treatment to her eyes.  She claimed that she first learned that the radiation caused damage to her right eye in 1995, and the following year, she discovered her left eye was injured.  She then filed her malpractice suit in August 1996.   

            At the time Ms. DeYoung filed suit, the Statute of Repose in Washington prohibited plaintiffs from filing medical malpractice claims more than eight years after their alleged negligent treatment.  Ms. DeYoung’s treating physician filed a motion for summary judgment, arguing that the case was time barred.  The trial court allowed the motion.  But Ms. DeYoung challenged the trial court’s ruling by arguing that the Statute of Repose was unconstitutional.  Ms. DeYoung claimed the statute interfered with her right to indemnification, which was a substantial property right under the state constitution.      

               In determining whether the statute was constitutional, the Supreme Court of Washington assessed whether the law was rationally related to protecting a legitimate state interest.  To perform this analysis the court began by looking at the legislative purpose of the statute. The statute had been enacted in 1976 in response to an insurance crisis.  Between 1972 to 1974, there was a substantial increase in the losses paid out by the doctor’s insurance companies, and the availability of medical malpractice insurance was decreasing.  

            In 1976, the statute of limitations for a medical malpractice claim was three years from when the plaintiff discovered her injury.  Therefore, a plaintiff like Ms. DeYoung could bring a claim against her doctor nearly fifteen years after he treated her, if she was unable to discover the cause of her injury earlier. The legislature believed that this “discovery rule” was contributing to insurance companies’ difficulty calculating and reserving for medical malpractice claims that could be brought at some indefinite time in the future, and their unwillingness to insure Washington doctors.  The legislature enacted the Statute of Repose to protect the insurance companies, and ultimately the physicians and their patients, recognizing that they might be preventing a small number of plaintiffs from recovering losses. The Statute of Repose established an absolute time limit on a plaintiff’s cause of action, without regard to when the injury was discovered.

            Finding the purpose of enacting the Statute of Repose legitimate, the Washington Supreme Court then inquired whether the statute was rationally related to that purpose.  They looked at data indicating that as of 1975 less than one percent of the medical malpractice claims reported were initiated more than eight years after the alleged negligence.  Because the statute affected so few claims, the court found it could not “avert or resolve a malpractice insurance crisis.”  Therefore, the court held the Statute of Repose was not rationally related to the state’s legitimate interest in stabilizing the insurance industry.   

            A number of other states have enacted statutes of repose, and this ruling does not affect them.  Unlike the State of Washington, the majority of these states have upheld their statutes as constitutional.  In Massachusetts, for example, a plaintiff cannot bring a medical malpractice case against a physician more than seven years after the alleged negligent treatment.  When the constitutionality of its Statute of Repose was challenged, the Supreme Judicial Court of Massachusetts upheld it.  The legislative purpose of the Massachusetts statute was to prevent defendants from facing a claim when evidence had been lost, memories had faded, and witnesses had disappeared.  The Court found this purpose to be legitimate, and held that the statute was rationally related to this purpose.

            In states like Massachusetts which have a Statute of Repose in effect, medical providers should retain their patients’ records for the number of years set forth by the statute.  In states like Washington, medical providers should keep their patients records indefinitely since there is not absolute time limit as to when a patient can sue them.


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Statute of Repose

by Attorney Frank E. Reardon

December 1999