1 THE REPEAL OF WASHINGTON'S INFANT TOLLING STATUTE IN MEDICAL MALPRACTICE CASES: STATE CONSTITUTIONAL CHALLENGES Cheryl L. Harner* I. INTRODUCTION Until 1986, the State of Washington was one of many jurisdictions with a tolling statute that suspended the statute of limitations period for minors until they reached majority. 1 These statutes recognized a strongly held principle of the common law and our tort system: "children are to be protected from the destruction of their rights by the running of the statute of limitations." ' The legislative rationale underlying such statutes is that children should not be barred from bringing action merely because their parents failed to bring the claim before the statute of limitation ran. The Washington Supreme Court recognized that rationale in Ohler v. Tacoma General Hospital. 4 Ohler held that a twenty-one year old woman did have a cause of action regardless of her parents' prior knowledge of a possible cause of action for medical malpractice because that knowledge had not been communicated to her before she reached majority status. Presently, however, the tort system's method of compensating personal injuries is being eroded at an alarming rate. This erosion is a consequence of the torrent of medical malpractice litigation 5 * Ms. Harner is a 1987 J.D. Candidate at Gonzaga University School of Law. 1. WASH. REV. CODE (1977) provides in part: "If a person entitled to bring an action mentioned in this chapter... be, at the time the cause of action occurred either under the age of eighteen years...the time of such disability shall not be a part of the time limited for the commencement of the action." 2. Williams v. Los Angeles Metropolitan Transit Auth., 68 Cal. 2d 599, 603, 440 P.2d 497, 499, 68 Cal. Rptr. 297, 299 (1968). 3. Roe v. Doe, 56 Misc. 2d 59, 65, 287 N.Y.S.2d 292, 298 (Fain. Ct. 1968) Wn. 2d 507, 512, 598 P.2d 1358 (1979). 5. See AMERICAN MEDICAL ASSOCIATION SPECIAL TASK FORCE ON PROFESSIONAL LIABIL-
2 134 GONZAGA LAW REVIEW [Vol. 22:133 that has generated million dollar verdicts and settlements 6 and has created sustained increases in insurance premiums.' Several state legislatures have responded to this malpractice crisis' by producing new or revising old statutes that touch the health care system. Tolling statutes for minors with medical malpractice claims have frequently been amended to bar claims at some time prior to the minor reaching majority status. In March 1986, the Washington legislature reacted to this crisis by amending the tolling statute for minors to impute a parent's knowledge to the child. 9 The stat- ITY & INSURANCE IN THE 80's, REPORT 1 at 1 (Oct. 1984) [hereinafter cited as AMA SPECIAL TASK FORCE REP. No.1]. The report notes that the number of physicians sued in malpractice suits nearly tripled from 1978 to In 1983 there were sixteen malpractice suits for every 100 doctors, which was 20 percent more than in In 1984, 60 percent of all obstetricians and gynecologists in the United States had been sued, 20 percent of them three or more times. AMA SPECIAL TASK FORCE REP. No. 1 at 10, 11. However, it was pointed out by Patricia Danzon, a professor at Duke University's Center for Health Policy Research and Education that "[alfter 1976, average claim frequency countrywide actually fell.. " Danzon, The Frequency and Severity of Medical Malpractice Claims, 27 J.L. & ECON. 115, 116 (1984). 6. Between 1982 and 1983, the number of million dollar malpractice verdicts against health care providers more than doubled according to Jury Verdict Research, Inc., of Solon, Ohio. AMA SPECIAL TASK FORCE REP. No. 1, at 12. More than 250 medical malpractice settlements exceeded $1 million in 1982, a tenfold increase in just four years. Again the Malpractice Crunch, N.Y. Times, Feb. 4, 1985, at A18, col. 1 (editorial). Professor Danzon noted that while claim frequency declined after 1976, "severity (average dollar indemnity, per paid claim, including court awards and payments in out-of-court settlements) continued to outpace the rate of inflation." Danzon, supra note 5, at See AMA SPECIAL TASK FORCE REP. No. 1, at 8 ("Between 1975 and 1983, medical liability premiums increased by more than 80 percent in general.") In New York, a fifty-two percent rate increase was approved for the Medical Malpractice Insurance Association. Again the Malpractice Crunch, supra note 6. Medical Liability Mutual Insurance Company, another New York insurer also asked for a 60 percent rate increase during that same year. Malpractice Fees: Doctors vs. Insurers, N.Y. Times, Feb. 28, 1985, at 14, col. 4. Across the United States, medical malpractice premiums were approximately 1.5 billion dollars as of February A.M.A. BEST'S INSURANCE MANAGEMENT REPORTS, quoted in The A.M.A.'s Campaign to Reduce Malpractice Suits, N.Y. Times, Feb. 10, The increase in medical malpractice litigation in the past twenty years and the rising costs of medical malpractice insurance have prompted doctors to practice defensive medicine. This overcautious approach by the medical profession has resulted in subjecting patients to numerous and often unnecessary diagnostic tests and a hesitancy to perform newly perfected medical techniques. The higher costs of practicing defensive medicine are ultimately passed on to the patient-consumer by the raising of fees, not only by physicians, but all medical service providers. AMERICAN OSTEOPATHIC ASSOCIATION, FIRST NATIONAL CON- FERENCE ON MEDICAL MALPRACTICE, 5-6 (1970). 9. Ch. 305, Wash. Laws amends WASH. REV. CODE (1977) to read: "For purposes of this section, notwithstanding RCW , the knowledge of a custodial parent or guardian shall be imputed to a person under the age or (sic) eighteen years. Any
3 1986/871 INFANT TOLLING STATUTE 135 ute requires that any action based on negligence of a licensed health care provider or entity shall be commenced within three years of the act or omission or within one year after the patient or his representative discover or reasonably should have discovered the injury." 0 The statute also reads, "in no event shall an action be commenced more than eight years after said act or omission."" This Comment will examine legislative actions that have limited infant tolling statutes as a response to the medical malpractice crisis. Many suits have been filed challenging the constitutionality of such actions. Courts have addressed due process and equal protection claims under state and federal constitutional provisions and are split as to the proper standard of review to apply. In an effort to predict the outcome of prospective actions challenging Washington's new infant tolling limitation provision, this Comment will analyze Washington Supreme Court cases in which constitutional challenges to other legislative actions were decided. II. AN HISTORICAL PERSPECTIVE ON TORT REFORM: STATUTE OF LIMITATIONS The tort system in the United States is ensconsed in the common law tradition and the fundamental values of our society.' 2 It protects our interests in freedom from bodily and mental harm, freedom of locomotion, exclusive possession of land, and stability of family relations."3 Since 1970, however, state legislatures have enacted statutes to curb the flow of increasing malpractice litigation and to limit the liability of health care providers. Some legislatures have creatively attacked the increased litigation by establishing medical review boards, 4 while others have created arbitration boards. 15 Many, however, have enacted statutes that shorten the traditional tort periods of limitation, severely limiting action not commenced in accordance with this section shall be barred." 10. Id. 11. Id. 12. See Lambert, "Who's Tinkering" with the Tort System - and Why? A Response, NATIONAL MEDICOLEGAL SYMPosIuM at 6 (1970). 13. Id. at Morris, Response to Ribicoff: Medical Malpractice Suits v. Patient Care, 37 INS. COUNS. J. 206, 238 (1970). 15. Note, The Indiana Medical Malpractice Act: Legislative Surgery on Patients' Rights, 10 VAL. U1. REV. 303, 306 (1976).
4 GONZAGA LAW REVIEW [Vol. 22:133 the time frames in which individuals may bring medical malpractice actions. These types of statutes have been attacked on the ground that they, in effect, gouge our evolving tort system and the common law from which it sprang. 1 Prior to the 1970's deluge of medical malpractice claims, the majority of states treated such claims as torts governed by tort law. There was no formal distinction between malpractice litigation and other tort litigation. 1 7 The malpractice crisis prompted most legislatures to create differences between medical malpractice and other torts by enacting special statutes for malpractice litigation that include special limitations provisions. 8 The tort system has long recognized circumstances warranting tolling of applicable statutes of limitations. Most malpractice statutes! 9 recognize three such circumstances: 1) situations where a patient, through no fault of his own, failed to discover that he had been a victim of malpractice; 2) concealment of malpractice by a health care provider in order to allow the statute of limitation period to run; and 3) situations in which the patient is under a legal disability rendering him incapable of bringing suit. Most jurisdictions treat infancy as a legal disability. 20 Tolling provisions for infants are generally found in tort or contract statutes, but, as mentioned previously, they can also be found in special malpractice statutes. When found in tort or contract statutes, these provisions usually do not allow the statute of limitations to commence running until a minor reaches majority status. 21 Tolling provisions in malpractice statutes, however, are not usually applicable to all plaintiffs under the age of majority. 22 There are several 16. See supra note 12, at D. LOUISELL & H. WILLIAMS, MEDICAL MALPRACTICE 13-1, 13-2 (1983). 18. Id. at 13-2, Currently, only six jurisdictions have failed to enact statutes that specifically address malpractice litigation. This type of action must still be brought under tort or contract theory in Alaska, District of Colombia, New Jersey, Pennsylvania, Puerto Rico, and West Virginia. New Hampshire's malpractice statute was found unconstitutional in Id. 19. D. HARNEY, MEDICAL MALPRACTICE (1973). 20. D. LOUISELL & H. WILLIAMS, supra note 17, at Other legal disabilities recognized by malpractice statutes for the purpose of tolling limitations provisions include incompetency by reason of mental disease, mental retardation, or prison. 21. Supra note 17, at 13-50, Supra note 17, at Arizona's medical malpractice tolling provision applies only to minors injured while under the age of seven. Minors injured over the age of seven,
5 1986/87] INFANT TOLLING STATUTE reasons for excepting some plaintiffs: 1) when a great number of years elapse before a claim is made on an injury, the memory of the health care provider may have failed; 2) witnesses may have died or documentary evidence may have been destroyed or lost; 23 and 3) it is also believed that lower medical malpractice insurance rates will result by limiting the amount of time in which claims may be filed. 24 It is provisions such as these that have become embroiled in constitutional litigation. 25 Washington's recently enacted malpractice tolling limitation provision which imputes a parent's knowledge to the infant 26 will undoubtedly become subject to this same type of litigation. III. THE REPEAL OF INFANT TOLLING PROVISIONS IN MALPRACTICE LITIGATION: IS IT CONSTITUTIONAL? Most state courts deciding challenges to infant tolling provisions base their holdings in state constitutional law regardless of whether the challenges relied on federal or state equal protection and due process clauses. 2 7 The 1970's marked a period when state courts departed from applying federal constitutional doctrines in the criminal procedure arena. 2 This departure was triggered by conservative Burger Court holdings and the knowledge that the United States Supreme Court has indicated that a state decision which reaches beyond federal precedent will not be subject to federal review if the decision has been solidly and solely grounded in however, can still toll the statute of limitations under the state's general statute applying to any type of action occurring to infants under age eighteen. ARIZ. REV. STAT. ANN At the opposite pole, Ohio's malpractice tolling provision expressly provides that it "applies to all persons regardless of legal disability" (emphasis added). A minor over ten must institute action within one year after injury or be barred. R.C (B) cited at D. LOUISELL & H. WILLIAMS, supra note 17, at A. HOLDER, MEDICAL MALPRACTICE LAW 319 (1975) S. PEGALIS & H. WACHSMAN, AMERICAN LAW OF MEDICAL MALPRACTICE 6:7, at (1981). 25. It is not only the limitation provisions that are being attacked on constitutional grounds; all aspects of medical malpractice statutes have become fertile grounds for constitutional litigation. See, e.g., Anderson v. Wagner, 79 Ill. 2d 295, 402 N.E.2d 560 (1979). (The Illinois Supreme Court prefaced its Anderson analysis with a detailed discussion of the many kinds of provisions that have been included in medical malpractice statutes and their constitutional validity). 26. See supra note 9 and accompanying text. 27. See e.g., Rohrabaugh v. Wagoner, 413 N.E.2d 891 (Ind. 1980). 28. Wilkes, The New Federalism in Criminal Procedure in 1984: State Court Evasion of the Burger Court? 62 Ky. L.J. 421, (1974).
6 GONZAGA LAW REVIEW [Vol. 22:133 state constitutional provisions. 2 9 The United States Supreme Court delivered it's opinion concerning the tolling of limitation periods for minors in Vance v. Vance when it determined that a minor has no right to have the limitation period tolled. 3 This opinion virtually guarantees the outcome of federal constitutional challenges to statutes limiting or extinguishing tolling of limitations. Furthermore, the Court has declared the strict scrutiny test will only be applied when a fundamental right or racial classification is involved. 2 The Vance decision is one reason why state courts are developing independent systems of state constitutional law. 33 Because 29. See Michigan v. Long, 463 U.S. 1032, (1983). In this case the state court relied extensively on federal law to reach its decision. The Supreme Court, on review, created a detailed basis for determining when federal courts have the jurisdictional power to review state holdings that are allegedly grounded in state law U.S. 514 (1882). 31. Id. at The Supreme Court rejected the argument that the Louisiana law providing that all unrecorded liens and mortgages would expire unless recorded within a particular time period should be tolled for a minor, stating: But the Constitution of the United States, to which appeal is made in this case, gives to minors no special rights beyond others, and it was within the legislative competency of the State of Louisiana to make exceptions in their favor or not. The exemptions from the operation of statute of limitations usually accorded to infants and married women do not rest upon any general doctrine of law that they cannot be subjected to their action, but in every instance upon express language in those statutes giving them time after majority, or after cessation of coveture, to assert their rights. No such provision is made here for such exception, but, in place of it, the legislature has made it the duty of the proper officer of the court to act for them. It was also the duty of the under tutor appointed in this case. If the foregoing conclusions be sound, they answer also effectually the suggestion in regard to the fourteenth amendment of the Constitution of the United States. Id. at There have been a number of recent decisions that have relied on Vance. In Pittman v. United States, 341 F.2d 739 (9th Cir. 1965), the court emphatically denied that failure to toll a limitation period during infancy violated constitutional due process and equal protection rights: Further, plaintiff contends that roughly 40 percent of the nation's population is under the disability of minority and that to deprive them of rights (because of the possibility that no adult will initiate proceedings) violates due process and equal protection when adults can go vindicate their own rights. We find no cases supporting such a proposition. Pittman at 741. See also, Cessna v. Montgomery, 63 Ill. 2d 71, 344 N.E.2d 447 (1976); State ex. rel. Krupke v. Witkowski, 256 N.W.2d 216 (Iowa 1977). 32. See, G. GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 671 (10th ed. 1980). See infra note 38, for a discussion of the standards of review. 33. See Barrio v. San Manuel Div. Hosp. 692 P.2d 280 (Ariz. 1984). The Arizona Su-
7 1986/87] INFANT TOLLING STATUTE 139 our justice system does not require state courts' opinions to be binding upon each other, and because most state courts are opting to base decisions on state constitutional law, there is no clear pattern emerging on which to predict the future of tolling limitations provisions. 4 A. Limitation Tolling Challenges Based On State Equal Protection Clauses Most state constitutions contain equal protection clauses. Washington's clause provides that, "[N]o law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." 35 State medical malpractice statutes containing infant tolling limitations have been attacked as violative of such clauses. The results have usually turned on the state court's willingness to recognize a minor's interest in preserving a claim as being worthy of special constitutional protection. 3 6 Courts have generally applied the traditional rational basis test 3 " to resolve these challenges, but some have attempted to apply the intermediate test used by the Supreme Court in Craig v. Boren. 8 These attempts, however, have resulted in the application preme Court ruled that even though the legislature has the power to set limits upon the period in which malpractice claims may be brought, those limits will be determined unconstitutional if they abrogate the right to bring an action for negligence. The court further held that a cause of action to recover damages for negligence is a "fundamental" right guaranteed by the Arizona Constitution. 34. Many state constitutional provisions accord individual rights to their citizens in degrees that vary widely from the rights given by the federal constitution. See Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983). In addition, state courts operating under virtually identical state constitutional provisions will often render opposing opinions. Contrast Sax with Rohrabaugh v. Wagoner, 413 N.E.2d 891 (Ind. 1980). 35. WASH. CONST. art. 1, 12 (privileges and immunities clause). 36. See Barrio v. San Manuel Div. Hosp., 692 P.2d 280 (Ariz. 1984); Rohrabaugh v. Wagoner, 413 N.E.2d 891 (Ind. 1980); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980); Schwan v. Riverside Methodist Hosp., 6 Ohio St. 3d 300, 452 N.E.2d 1337 (1983). 37. See infra note U.S. 190 (1976). Three distinct standards of review for equal protection challenges have been developed by the Supreme Court. The rational basis test requires only that the legislative reason[s] for enacting a statute be rational. The court has sanctioned a very liberal definition of "rational." See e.g., United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980); McGowan v. Maryland, 366 U.S. 420 (1961); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911). The strict scrutiny test was formulated for use when a legisla-
8 140 GONZAGA LAW REVIEW [Vol. 22:133 of intermediate tests that vary in differing degrees from the Supreme Court test. 3 9 It should be noted, though, that the Supreme Court cannot be applauded for its conceptual clarity or its consistency of application of the intermediate test. 4 " 1. Decisions Employing The Rational Basis Test. Three recent holdings represent the kinds of resourceful manipulation of the rational basis test state courts employ to determine the validity of infant tolling provisions. In Barrio v. San Manuel Division Hospital,' the Arizona Supreme Court struck down a malpractice statute that provided for a three year period of limitations to commence running on a child's seventh birthday. The Arizona Court of Appeals had previously recognized the rational basis test as the appropriate standard of review and, consequently, determined the statute did not violate the equal protection clause of the Arizona Constitution. 42 The supreme court agreed that the Arizona Constitution does give the legislature the power to set limits on the time pbriod in which a person may bring an action for negligence,' 3 but went on to explain that the constitution also guarantees the right to bring an action for negligence as a fundamental right." The court found it was not necessary to analyze the equal protection issue under these circumstances and focused, instead, on whether the statute abrogated the right to bring an action for negligence. 45 The court applied a "reative action intentionally discriminates against racial or ethnic minorities. This test requires the legislative action be necessary to promote a compelling state interest. See e.g., Washington v. Davis, 426 U.S. 229 (1976); Louisiana v. United States, 380 U.S. 145 (1965). The court announced the intermediate test in Reed v. Reed, 404 U.S. 71 (1971). This standard is to be applied when government actions create gender discrimination. The legislation, in this circumstance, must not merely be rational, it must serve important government objectives and must be substantially related to achievement of those objectives. 39. See e.g., Coffey v. Bresnahan, 506 A.2d 310 (N.H. 1986); Carson, 120 N.H. 925, 424 A.2d Compare, Heckler v. Mathews, 465 U.S. 728 (1984) with Califano v. Goldfarb, 430 U.S. 199 (1977) P.2d 280 (Ariz. 1984). 42. Id. at A.R.S. CONST. art 18 6 provides; "The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to a statutory limitation." P.2d at Id. at It did, however, concede that there are states which do not view the common law action for negligence as a fundamental right and that those states have deter-
9 1986/87] INFANT TOLLING STATUTE sonable election" test to discover whether the limitation provision "abrogated"' 6 the right to bring an action or merely "regulated" that right,4 7 and concluded that the malpractice action was effectively abrogated, rendering the malpractice tolling limitation provision unconstitutional.' 8 Indiana's Supreme Court justified its application of the rational basis test in Rohrabaugh v. Wagoner'" by citing two Supreme Court analyses. It rendered its' decision only after evaluating a number of issues. The first conclusion drawn was that children between the ages of six and twenty-one are not members of a suspect class. 50 The court then applied the rational basis test formulated in Royster Guano Co. v. Virginia 51 which stated that the classification must "be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike. '' 2 The court also cited Reed mined the validity of tolling limitation provisions on equal protection grounds. Id. at 283 citing Johns v. Wynnewood School Bd. of Educ., 656 P.2d 248, 249 (Okla. 1982); Licano v. Krausnick, 663 P.2d 1066, 1068 (Colo. App. 1983); DeSantis v. Yaw, 290 Pa. Super. 535, 434 A.2d 1273 (1981) (the limitation statute was upheld under the authority of the Pennsylvania Supreme Court decision, Von Colin v. Pennsylvania R.R. Co., 367 Pa. 232, 80 A.2d 83 (1951) criticizing ruling). 46. The court cites an earlier decision, Ruth v. Indus. Comm'n, 107 Ariz. 572, 575, 490 P.2d 828, 831 (1971) in which it determined that the abrogation clause of AR.S. CONST., art. 18, 6 will be implicated when the right of action is "completely abolished." 692 P.2d at P.2d at Id. at N.E.2d 891 (Ind. 1980). 50. Id. at 893. The Indiana court found minors did not fit the definition of a suspect class as defined in San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1 (1973) reh'g denied, 411 U.S. 959 (1973): Equal protection analysis requires strict judicial scrutiny of legislative classification only when the classification impinges impermissibly upon the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class... saddled with such disabilities, or subjected to such history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. The Indiana court conceded that, "the legal treatment of children has not been free of discrimination," but went on to add; "the disparate treatment accorded children has been based in recent times upon knowledge of a process of growth, a process which all human beings are subject." Id. at U.S. 412 (1920). 52. Id. at 415.
10 GONZAGA LAW REVIEW [Vol. 22:133 v. Reed 53 as authority for the same test. Although the Royster formulation of the rational basis test was used by the Court for many years, its application was consistently less demanding until the Court determined Reed v. Reed in 1971."' In Reed, the Court appeared to give greater teeth to the rationality requirement when the issue involved gender discrimination. 5 1 As a result of Reed, when the issue involves gender discrimination the applicable standard is whether the classification is "substantially related to the state's goals." 56 In view of the significant changes in the application of the rational basis test from Royster to Reed, and the Indiana court's reliance on both, it does appear that the court could be analogizing gender discrimination and age discrimination. However, the court's later declaration that, "the burden was on the appellants below to negate every conceivable basis which might have supported the classification, ' 57 indicates its rejection of that analogy. This opinion does have the capability of confusing any interpreter attempting to clarify the standard of review. The Rohrabaugh court seemed eager to find the legislative action reasonable. The court gave a number of reasons to bolster the rationality of the malpractice statute's limitations provision: 1)throughout history children have been exploited by parents and employers while their legal status remained in flux; 2)legislatures have often given rights to children that are not available to adults such as to hunt and fish without a license and exemption from the military draft while, on the other hand, children have been limited in their rights to vote, marry, and operate motor vehicles; and 3) health care services would suffer if a minor's interest could be litigated seventeen years after treatment was procured. 8 In addition, the court deferred to the legislative opinion that a child's interests U.S. 71 (1971). 54. Id. The Court appeared to be using the rational basis test with "bite" as it struck down a provision favoring men over women in the appointment of administrators, even though it failed to recognize gender as a suspect classification. See Gunther, supra note 32, at See supra notes 53 and U.S. 71 at 76, quoting Royster Guano Co. v. Virginia, 253 U.S. 412 at Rohrabaugh, 413 N.E.2d at 894, quoting from Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585, 597 (Ind. 1980). 58. Rohrabaugh, 413 N.E. 2d at
11 1986/871 INFANT TOLLING STATUTE would be adequately protected by parents or guardians. 5 9 Children between the ages of six and eighteen and adults, it was finally concluded, "are similarly circumstanced with regard to their ability to bring malpractice actions." 0 This opinion represents the pinnacle of judicial deference. Schwan v. Riverside Methodist Hospitals' struck down Ohio's infant tolling provision while purporting to use the rational basis test. The Ohio statute provided that, "a minor who has not attained his tenth birthday shall have until his fourteenth birthday in which to file an action for malpractice against a physician or hospital." 6 In essence, this statute treated minors age ten and older the same as adults. The Ohio Supreme Court accepted the legislative reasoning that a malpractice statute was "necessary to [e]nsure a continuance of health care delivery to the citizens of Ohio,"" but could not accept the argument that the classification would rationally further the stated objective. " Age ten, the court explained, occurs and passes with little fanfare, and it would be unreasonable to assume that any adult or child would recognize any change in the child's status on that birthday. 65 In light of this conclusion, the limitations provision concerning minors was held unconstitutional on its face because it created an "irrational classification that did not rationally further the purpose of Am. Sub. H.B. No. 682." ' 6 Although the court made it very clear that, "it is the age of majority which establishes the only rational distinction," it failed to explain why the legislature could not be allowed to determine 59. Id. 60. Id Ohio St. 3d 300, 452 N.E.2d 1337 (1983). 62. OHfo REv. CODE ANN (B) (1981). 63. Schwan, 452 N.E.2d at 1339, quoting from Dennicola v. Providence Hosp., 57 Ohio St. 2d 115, 120, 387 N.E.2d 231, 234 (1979) N.E.2d at N.E.2d at The court ignores the fact that anyone seeking legal advice would be appraised of applicable statutes of limitations. It also appears to ignore the presumption that the general public is aware that legal actions may be extinguished by applicable statutes of limitations. Also, it seems the assumption is made that a parent or guardian would act in the child's best interests and litigate, if necessary. 66. This house bill formalized the legislative intent to combat the medical malpractice crisis. 452 N.E.2d at Id. at 1339.
12 GONZAGA LAW REVIEW [Vol. 22:133 the age classification utilizing the same information the court had at its disposal. The court was obviously concerned about minors being denied access to the legal system and manipulated the rational basis test to meet this concern. 2. Decisions Employing The Intermediate Test. At least one court has applied the intermediate standard of scrutiny to strike down an infant tolling provision. The New Hampshire legislature, in response to the malpractice crisis, enacted a statute that created a two year statute of limitations applicable to most medical malpractice actions brought by adults and minors over age eight. 6 8 Carson v. Maurer 69 is a consolidated appeal that challenged the constitutionality of various aspects of the statute, including the tolling limitation provision. Even though the plaintiffs challenged the provision on both federal and state grounds, the Supreme Court of New Hampshire elected to examine the issue only under the state equal protection clause. 7 The court initiated its analysis by declaring that an action to recover damages for personal injuries is not a fundamental right and that minority is not a type of suspect classification that would require strict scrutiny. 7 ' The court, however, recognized the right to recover for personal injuries as an important substantive right "... sufficiently important to require that the restrictions imposed on those rights be subjected to a more rigorous judicial scrutiny than allowed under the rational basis test. ' 72 It identified the Royster formulation 7 3 of the rational basis test as the proper standard of review while actually applying the rational basis test with a distinct "bite." The court did acknowledge that the Supreme Court only applied the "bite" to cases involving gender and illegitimacy, 74 but determined it was free from federal constitutional re- 68. N.H. Rev. STAT. ANN C:4 (Supp. 1979) N.H. 925, 424 A.2d 825 (1980) A.2d at Id. at Id. 73. See supra notes and accompanying text A.2d at 831. The Carson court justified its application of the rational basis "with bite" standard to the present case by stating, "[I1n interpreting our state constitution, however, we are not confined to federal constitutional standards and are free to grant individuals more rights than the Federal Constitution requires," citing, Opinion of the Justices, 118 N.H. 347, , 387 A.2d 333, 335 (1978).
13 1986/87] INFANT TOLLING STATUTE strictions in that its opinion was grounded in state law and it had previously used the "bite" test to examine economic and social legislation which did not involve distinctions based on gender or illegitimacy. 7 " The court concluded its analysis by stating that the legislature may not, in light of New Hampshire's savings statute, 76 deny malpractice plaintiffs the same rights afforded other persons under this statute. 77 In addition, it found the malpractice limitations provision did not "substantially further" the intent of the legislature 7 "because the number of malpractice claims brought by or on behalf of minors or mental incompetants is comparatively small. 79 The balancing act employed in this case emphasizes this court's intention to apply the higher level of scrutiny allowed by the rational basis test "with bite" when access to the courts is at issue. 3. Equal Protection In Washington: An Analysis Of Cases The Washington Supreme Court has for many years applied the same standards and levels of scrutiny as the United States Supreme Court when determining the constitutionality of state actions that are challenged on equal protection grounds. In 1973, the appellants in Hansen v. Huitt challenged a statute that denied unemployment compensation to pregnant women. The court struck the statute citing Frontiero v. Richardson," 1 a Supreme Court case, as controlling. 8 2 Frontiero held unconstitutional a statute that provided different levels of compensation for mili A.2d at 831, citing Opinion of the Justices, 113 N.H. 205, 213, 304 A.2d 881, 887 (1973); State v. Moore, 91 N.H. 16, 22, 13 A.2d 143, 148 (1940). 76. N.H. REv. STAT. ANN. 508:8 (1983). This statute operates to protect those with legal disabilities from destruction of their rights by the running of the statute of limitations A.2d at Id. at The legislature found:..that substantial increases in the incidence and size of claims for medical injury pose a major threat to effective delivery of medical care in the state and that the risks and consequences of medical injury must be stabilized in order to encourage continued provision of medical care to the public at reasonable cost, the continued existence of medical care institutions and the continued readiness of individuals to enter the medical care field N.H. LAWS ch. 417: A.2d at Wn. 2d 195, 517 P.2d 599 (1973) U.S. 677, (1973) Wn. 2d at 199, 200, 517 P.2d at 602.
14 GONZAGA LAW REVIEW [Vol. 22:133 tary dependents' support payments based on the dependents' sex. 8 The Washington court explained its reliance on Frontiero stating, "[T]he Equal Protection Clause of the fourteenth amendment and the privileges and immunities clause of the Washington State Constitution are substantially identical in their impact upon state legislation. '84 The Washington court, in 1974, upheld a statute that allowed the state to raise funds for public schools by taxing equally all school districts. 85 The petitioners in Northshore School District v. Kinnear contended the state's duty to administer education laws was so great that compliance with the fourteenth amendment fell short of compliance with the state's equal protection clause. 87 The court rejected this contention declaring, "[I1f the state's statutes controlling the funding and operation of the common schools are repugnant to the equal protection clause of the fourteenth amendment, they are similarly repugnant to the equal protection clause, and vice versa." 8 8 In 1976, in Housing Authority v. Saylors, 89 the court continued to defer to Supreme Court rulings when it stated, "[W]here language of our state constitution is similar to that of the federal U.S. 677, 688. The Supreme Court determined that, "classifications based upon sex... are inherently suspect, and must therefore be subjected to strict judicial scrutiny." Wn. 2d at 200, '517 P.2d at 603. The court also cited previous opinions that reinforced this conclusion. See State v. Perrigoue, 81 Wn. 2d 640, 503 P.2d 1063 (1973); Olsen v. Delmore, 48 Wn. 2d 545, 295 P.2d 324 (1956). 85. Northshore School Dist. v. Kinnear, 84 Wn. 2d 685, 530 P.2d 178 (1974). (Kinnear was overruled in part by Seattle School Dist. v. State, 90 Wn. 2d 476, 585 P.2d 71 (1978). The Washington Supreme Court's stance concerning the state and federal equal protection clauses in Kinnear, however, was not overruled). 86. Id. 87. Id. at 720, 530 P.2d at Id. at 720, 530 P.2d at 198. The court went on to say that, "[Iln case after case, [it] has given the same application to the equal privileges and immunities provisions of article 1, section 12, of the state constitution and the equal protection clause of the fourteenth amendment to the federal constitution and has given them both the same meaning." Id. at 721, 530 P.2d at 198. The court cited a number of previous decisions to emphasize this statement. See DeFunis v. Odegaard, 82 Wn. 2d 11, 507 P.2d 1169 (1973); Sparkman & McLean Co. v. Govan Inv. Trust, 78 Wn. 2d 584, 478 P.2d 232 (1970); Markham Advertising Co. v. State, 73 Wn. 2d 405, 439 P.2d 248 (1968); State ex. rel. Rhodes v. Cook, 72 Wn. 2d 436, 433 P.2d 677 (1977); State ex. rel. O'Brien v. Towne, 64 Wn. 2d 581, 392 P.2d 818 (1964); Clark v. Dwyer, 56 Wn. 2d 425, 353 P.2d 941 (1960) Wn. 2d 732, 557 P.2d 321 (1976).
15 1986/87] INFANT TOLLING STATUTE constitution,... the language of the state constitutional provision should receive the same definition and interpretation as that which has been given to the federal provision by the United States Supreme Court." 90 The Auto Drivers v. Retirement Systems 91 analysis clearly designated the rational basis test as the standard the court will apply to most statutes challenged on equal protection grounds. In this case, the court determined that a statute would not be invalidated as a denial of equal protection unless it: 1) affected a fundamental right; 2) created a suspect classification; or 3) rests on grounds wholly irrelevant to achieving a legislative state objective. 2 This analysis was adopted from a prior Supreme Court case, McGowan v. Maryland. 9 3 McGowan also gave the legislature broad discretion in creating classifications in social and economic legislation, and held that such legislation would be upheld if any state of facts could be reasonably conceived to substantiate it. 4 The Auto Drivers court concurred with this view Id. at 739, 557 P.2d at 325. See also, State v. Moore, 79 Wn. 2d 51, 483 P.2d 630 (1971); State v. Schoel, 54 Wn. 2d 388, 341 P.2d 481 (1959) Wn. 2d 415, 598 P.2d 379 (1979). 92. Id. at 422, 598 P.2d at 383, citing Nielson v. Washington State Bar Ass'n., 90 Wn. 2d 818, 820, 585 P.2d 1191 (1978), citing McGowan v. Maryland, 366 U.S. 420, , (1961). See also, Childers v. Childers, 89 Wn. 2d 592, , 575 P.2d 201, 209 (1978), citing Sparkman & McLean Co. v. Govan Inv. Trust, 78 Wn. 2d 584, 478 P.2d 232 (1970): It is the well established rule of law in this state that a statutory classification having some reasonable basis does not offend the equal protection clause or the privileges and immunities clause. O'Connell v. Conte, 76 Wn. 2d 280, 283, 456 P.2d 317 (1969); Boeing Co. v. State, 74 Wn. 2d 82, 86, 442 P.2d 970 (1968); State v. Persinger, 62 Wn. 2d 362, 382 P.2d 497 (1963). In order to successfully attack a particular classification, it must be shown that such classification is manifestly arbitrary, unreasonable, inequitable, and unjust. Treffrey v. Taylor, 67 Wn. 2d 487, 408 P.2d 269 (1965); Kelleher v. Minshull, 11 Wn. 2d 380, 119 P.2d 302 (1941). Accordingly, the question is not whether the statute is discriminatory in nature, nor is it a paramount concern if the classification results in some inequality. The crucial determination is whether there are reasonable and justifiable grounds giving rise to the classification. State v. Persinger, supra; State v. Kitsap County Bank, 10 Wn. 2d 520, 117 P.2d 228 (1941). Finally, in making this determination, it is recognized that the legislature has a wide range of discretion in defining the classifications and that such enactments are presumptively valid. O'Connell v. Conte, supra U.S. 420 (1961). 94. Id. at Wn. 2d at 422, P.2d at 383.
16 GONZAGA LAW REVIEW [Vol. 22:133 Section 502"e of Washington's new medical malpractice statute creates two issues for consideration under the state's equal protection clause: 7 1)whether the legislature had reasonable ground for solicitous treatment of licensed health care professionals; and 2) whether the legislature has created an unconstitutional distinction between victims of medical malpractice and victims of other tortious acts. In light of the Vance" holding and the continued deference of the Washington Supreme Court to United States Supreme Court rulings in the equal protection arena, it appears any equal protection challenges to Washington's infant tolling limitation provision will be defeated. B. Limitation Tolling Challenges Based On State Due Process Clauses Some states have due process clauses that accord their citizens additional rights beyond those guaranteed by the fourteenth amendment. 99 The state of Texas has such a provision. 100 The Texas Supreme Court utilized that provision to strike down an infant tolling statute in Sax v. Votteler.1 0 ' In Sax, parents brought a medical malpractice action against a physician for allegedly removing a minor's fallopian tube instead of the appendix. On appeal, the court held that the malpractice statute removing a tolling provision for minors which had allowed the tolling of a two year period of limitation by minors after reaching age six was unconstitutional under the due process clause of the Texas constitution The court noted three major considerations that, taken together, supported its decision: 1) minors in Texas have no right to bring a cause of action on their own unless their disability is removed; 03 2) the minor would lose his cause of action if the parents or guardians 96. See supra note WASH. CONST., art 1, 12 (privileges and immunities clause). 98. See supra notes 30, 31 and accompanying text. 99. These are called "open court" clauses. See generally Wiggins et al, article in this issue TEX. CONST., art. 1, 13, provides that: "[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due process of law." S.W.2d 661 (Tex. 1983) Id. at Id. at 666.
17 1986/87] INFANT TOLLING STATUTE failed to take action on his behalf;" 0 4 and 3) Texas law forbids a child to bring an action for negligence against parents The court concluded that a child could effectively be barred from any remedy if his parents negligently failed to file a timely suit Although the court agreed that the intent underlying the tolling provision was legitimate, it determined that the means chosen by the legislature to pursue their interests was not reasonable. The "open court" provision of the Texas due process clause would be violated because the statute did not provide an adequate substitute for the plaintiff to recover for her injuries. * Although it may appear that an "open court" clause is the loophole a late-filing minor is searching for, at least one other court operating under such a clause held opposite of Sax. The Indiana court, in Rohrabaugh v. Wagoner, 0 8 began its analysis with the assumption that the right of access to the courts was subject to legislative qualification It completed its analysis stating that it was within the legislative power to define the scope of its citizens' rights and that "open court" clauses do not provide a fundamental right that cannot be overcome by the legislature." 0 The Sax court diligently weighed a citizen's right to court access against the legislative need to curb the malpractice crisis and found in favor of the citizen. The Rohrabaugh court, on the other hand, announced it would defer to legislative actions with absolutely no balancing of interests. It seems that the key to discerning a court's direction on this due process issue under an "open court" provision is to evaluate the court's willingness to engage in an intense balancing of interests. Washington has no "open court" provision. Its due process clause is patterned after the federal clause and provides that, "[N]o person shall be deprived of life, liberty, or property without 104. Id. at Id Id. The court further contended that it cannot be assumed that parents will adequately protect the claims of their children Id. at N.E. 2d 891 (Ind. 1980) Id. at Id.
18 GONZAGA LAW REVIEW [Vol. 22:133 due process of law." ' The Washington Supreme Court has recognized that the state due process clause is controlled by the fourteenth amendment and is determined to give great weight to Supreme Court rulings when evaluating the extent of state due process protection." 2 Some opponents of Washington's infant tolling limitation provision would attack its validity on substantive due process grounds under the principles of Cleveland Board of Education v. La- Fleur."' In this case the Supreme Court ruled that mandatory termination provisions included in county maternity leave regulations violated the due process clause of the fourteenth amendment."" The Court recognized, at the threshold, an individual's "right to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."" ' 5 It cited a previous decision in which it held that "public school maternity leave rules affect one of the basic civil rights of man."" ' 6 The school boards argued that mandatory leave rules were necessary to preserve continuity of instruction, a valid state interest. The Court quashed that argument by applying the rational basis test and finding no rational relationship between mandatory leave rules and continuity of instruction. 1 7 The boards then argued it was necessary to keep physically unfit teachers out of the classroom. The Court, after a detailed analysis, concluded that a pregnant woman's ability to continue work past any fixed time is an individual matter and conclusive presumptions such as those embodied in the challenged rules violated the due process 111. WASH. CONST., art See In re Reismiller, 101 Wn. 2d 291, 678 P.2d 323 (1984); Matter of Young, 95 Wn. 2d 216, 622 P.2d 373 (1980); Olympic Forest Prod., Inc., v. Chausee Corp., 82 Wn. 2d 418, 511 P.2d 1002 (1973) U.S. 632 (1974) The school board regulation of Chesterfield Co., Virginia required a pregnant teacher to give a six month notice of an anticipated childbirth and to leave work four months before the anticipated birth. Re-employment was guaranteed only after the teacher presented a physician's certificate of physical fitness. Id.. at Pregnant teachers in Cleveland, Ohio, were required to take mandatory unpaid maternity leave five months before the anticipated birth. The teacher would not be allowed to return to work until the child reached the age of three months. Id. at Id. at 640, citing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) Id. citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) U.S. at 643.
19 1986/871 INFANT TOLLING STATUTE clause."' Although the Court has steadfastly continued to recognize gender as a suspect classification,' 19 it nonetheless applied the rational basis test in LaFleur to those rules that purportedly discriminated between the sexes. The Court determined the decision to bear or beget children was a fundamental civil right, but then proceeded to apply the rational basis test, albeit with a twisted bite. 120 The opponents of Washington's limitation tolling provision will argue that LaFleur reflects the Court's supportive attitude toward persons legislatively denied due process, and indicates the Court's unwillingness to find any rational relationship between a state objective and a statute that arbitrarily denies due process to any class. They will contend Washington's infant tolling provision is just one of the many nationwide malpractice provisions that arbitrarily set cut-off dates for minors to bring actions for negligence. LaFleur, however, could also be interpreted as supporting the notion that the rational basis test will always be used to determine the validity of any legislative act that denies substantive due process to any classification not based on race or gender. While either interpretation of the LaFleur opinion may be strongly argued, the Court's past behavior concerning minors must be taken into account when predicting the future of Washington's infant tolling provision. In view of the Court's long held rejection of the argument that minors have a right to have their causes of action tolled until majority,' 21 its failure to find minors a suspect class, and the Washington Supreme Courts' deference to United States Supreme Court decisions,' 12 any due process challenge to Washington's limitation tolling provision will likely be defeated Id. at U.S. 71 (1971) The rational basis test usually requires that the legislative reason[s] for enacting a statute be rational, in a very liberal sense. See supra, note 38. Here, the court would not recognize any reason for the provision as rational See supra note See supra notes 90, 112 and accompanying text.
20 152 GONZAGA LAW REVIEW [Vol. 22:133 C. Limitation Tolling Challenges Based On Prior Washington Departures From Federal Constitutional Interpretation. Some adversaries of Washington's infant tolling provision might reason that because the Washington Supreme Court has interpreted article 1, section 7, of the Washington Constitution 2 ' to be more protective of citizens' rights than the fourteenth amendment to the United States Constitution, 2 4 it will, likewise, interpret Washington's privileges and immunities and due process clauses to offer more protection to minors than does the Supreme Court's interpretation of the fourteenth amendment. 2 5 A thorough reading, however, of each of the cases in which the Washington Constitution was interpreted to be more protective of individual rights will quickly affirm the court's continued deference to Supreme Court rulings when state and federal constitutional clauses are similar. 12' As discussed previously, the Washington Supreme 123. WASH. CONST., art. 1, 7, provides "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." 124. The fourth amendment to the U.S. CONST. provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized See, Note, Juvenile Rights and Public School Searches, 21 GoNz. L. REV. 285, 295, n.60:.. State v. Chrisman, 100 Wn. 2d 814, 821, 676 P.2d 419, 424 (1984) (holding that WASH. CONST., art. 1, 7, unlike the Fourth Amendment to the United States Constitution, prohibits a police officer's warrantless entry into the residence of a person he has just arrested for a misdemeanor unless the officer can prove his safety was endangered, the person might escape, or that evidence of the crime would be destroyed); State v. Ringer, 100 Wn. 2d 686, 684 P.2d 1240 (1983) (holding that WASH. CONST., art 1, 7, unlike the Fourth Amendment to the United States Constitution, limits warrantless searches to that area in the person's immediate control and only for the removal of weapons or evidence of the crime); State v. White, 97 Wn. 2d 92, 108, 640 P.2d 1061, 1070 (1982) (holding that WASH. CONST., art 1, 7, unlike federal constitutional law, requires exclusion of evidence obtained during an arrest made under an unconstitutional statute) See e.g., State v. Chrisman, 100 Wn. 2d 814, 676 P.2d 419 (1984). ("[Iln the area of search and seizure we rely upon independent state grounds primarily because of the difference in language between Const., art. 1, 7, and the fourth amendment."); State v. Ringer, 100 Wn. 2d 686, , 674 P.2d 1240 (1984). (The court discusses the historical significance of the language in art. 1, 7, and how this language allows the court to provide a higher degree of protection to Washington citizens than would the federal constitution); State v. White, 97 Wn. 2d 92, 110, 640 P.2d 1061 (1982) ("[H]istorical evidence reveals that the framers of the Washington constitution intended Const., art. 1, 7, to have a meaning different from the federal provision.")
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Birth Trauma: Litigating Medical Malpractice Cases in Numerous States is currently litigating birth trauma cases throughout the country. The firm s attorneys are licensed to practice law in Texas, Louisiana
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