Washingtion Upholds 90-Day Presuit Notice Requirement for Medical Malpractice Claims Against Governmental Defendants

A man fractured his femur and underwent surgery at a county hospital. The man alleged he was subsequently denied anticoagulant medication. Ten days after his surgery, the man presented to the emergency room with swelling in his leg, which was diagnosed as deep venous thrombosis.


Three years after presenting to the emergency room with swelling in his leg, the man sued the county hospital for medical negligence. The hospital filed a motion for summary judgment for failure to comply with the 90-day presuit notice requirement for medical negligence claims. The plaintiff replied that the Washington Supreme Court had struck down the 90-day presuit notice requirement for medical malpractice claims against both private and public defendants in Waples v. Yi, 169 Wash.2d 152, 161, 234 P.3d 187 (2010). The district court denied the hospital’s motion. On appeal, the plaintiff argued that requiring presuit notice for victims of government medical malpractice alone impermissibly discriminated between governmental and nongovernmental defendants in violation of the Equal Protection Clause of the U.S. Constitution.


The Supreme Court of Washington reversed the district court’s denial, explaining that Waples was limited to claims against private defendants. The court reasoned that the legislature may establish conditions precedent, including presuit notice requirements, to inform the state of future cost and delay associated with court resolution of an issue. The court held that the requirement did not violate the Equal Protection Clause because, under rational basis review, the 90-day presuit notice requirement is reasonable and does not constitute a substantial burden on the ability of governmental tort victims to obtain relief.


Waples was an as-applied challenge to the constitutionality of the 90-day presuit notice requirement. As such, the holding was limited to situations in which the statute was applied in the same way, i.e., to a nongovernmental defendant. The holding did not invalidate the requirement in its entirety.


See: McDevitt v. Harborview Medical Center, 2012 WL 6700411 (Wash., December 27, 2012) (not designated for publication).