Medical Services Law Update

In Putnam v. Wenatchee Valley Medical Center, No. 08088-1, the Supreme court of Washington reversed a trial court ruling dismissing the plaintiff’s claim because she failed to file a certificate of merit from a medical expert as required under Washington state law.  The high court ruled the statute is unconstitutional because it unduly burdens the right of access to courts and violates the separation of powers.  “When the activity of one branch invades the prerogatives of another there is  aviolation of the doctrine of separation of powers.  The court must strike down this law because it violates the right of access to the courts and conflicts with the judiciary’s inherent power to set court procedures.”

In  Gierie v. Mercy Hospital, No. 07-31 (Me. Sup. Jud. Ct. Apr. 30, 2009), the plaintiff claimed his neurological impairment resulted from delivery malpractice.  The defense expert was a Board member of the medical malpractice insurance company that insured the defemdamt hospital at the time of trial, but was not the hospital’s insurer at the time of the alleged malpractice.  The trial court’s refusal to allow cross-examination about the expert’s Board membership was sustained on appeal with the Supreme Court, citing the state’s evidentiary rule barring evidence of insurance for purpose of establishing negligence.  Although this evidence may be used for demonstrating bias, it can also be excluded even for this purpose where its prejudicial impact outweighs its probative value the court noted.