Glen A. McDEVITT, an unmarried man, Respondent,
HARBORVIEW MEDICAL CENTER, a King County Public Hospital, and John Doe and Jane Doe; University of Washington dba UW Medicine/Physicians, and The State of Washington, a governmental entity, Petitioners.
Thomas Francis McDonough, Attorney at Law, Edmonds, WA, Mika N. Blain, Attorney
at Law, Klamath Falls, OR, for Respondent.
Michael F. Madden, Amy Magnano, Bennett Bigelow & Leedom, P.S., Seattle, WA, for Petitioners.
J.M. JOHNSON, J.
[179 Wn.2d 62] ¶ 1 In Waples v. Yi, 169 Wash.2d 152, 161, 234 P.3d 187 (2010), this court held that separation of powers principles invalidated the 90 day presuit notice requirement against medical malpractice defendants, as adopted by the legislature in former RCW 7.70.100(1) (2006). We now further explain that holding, recognizing express constitutional authority in article II, section 26 for the legislature to direct " in what manner, and in what courts, suit may be brought against the state." We conclude that the 90 day presuit notice requirement is constitutional as applied against the State on the grounds that the legislature may establish conditions precedent, including [179 Wn.2d 63] presuit notice requirements. While recognizing the statutory waiver of sovereign immunity, we have upheld similar procedural requirements for suit against the State (e.g., those codified in former RCW 4.92.110 (1977) and former RCW 4.96.020(4) (1993)). Thus, we hold that the presuit notice requirement of former RCW 7.70.100(1) as applied to the State is a constitutionally valid statutory precondition for suit against the State because it was adopted by the legislature as provided in article II, section 26 of the Washington Constitution.
¶ 2 However, in this case, because the plaintiff reasonably relied upon this court's holding in Waples and chose to forgo the notice requirement of former RCW 7.70.100(1), we conclude that our decision merits prospective-only application and will not apply to this case. For that reason, although it was based on an overbroad interpretation of Waples that conflicts with our present holding, we affirm the King County Superior Court's denial of Harborview's motion for summary judgment.
FACTS AND PROCEDURAL HISTORY
¶ 3 On July 9, 2007, Glen A. McDevitt was paragliding and crashed into tree branches that threw him onto a roof, a chimney, and then the ground. He sustained a fracture to his left femur and underwent surgery at Harborview Medical Center on July 10, 2007. After surgery and upon discharge, McDevitt alleged in his first amended complaint that he " was taken off" anticoagulant medication. Clerk's Papers at 9. Harborview denied this allegation in its answer. [179 Wn.2d 64] On July 20, 2007, McDevitt went to the emergency room at Northwest Hospital because of significant swelling in his left leg, where he was diagnosed with deep venous thrombosis.
¶ 4 McDevitt filed his lawsuit against Harborview on July 20, 2010. Harborview moved for summary judgment based on the undisputed fact that McDevitt failed to comply with the 90 day presuit notice requirement of former RCW 7.70.100(1). Harborview requested that McDevitt's lawsuit be dismissed with prejudice. In response, McDevitt argued that our decision in Waples invalidated the presuit notice requirement against both private and public defendants. Harborview then argued that we did not have occasion to consider the constitutional validity of the presuit notice requirement as applied to lawsuits against the State. King County Superior Court denied Harborview's motion for summary judgment. Harborview petitioned this court for discretionary review, which was granted. McDevitt v. Harborview Med. Ctr., 171 Wash.2d 1012, 249 P.3d 1029 (2011).
¶ 5 The appropriate standard of review for an order granting or denying summary judgment is de novo, and the appellate
court performs the same inquiry as the trial court. Aba Sheikh v. Choe, 156 Wash.2d 441, 447, 128 P.3d 574 (2006). Additionally, constitutional questions are issues of law and are also reviewed de novo. City of Redmond v. Moore, 151 Wash.2d 664, 668, 91 P.3d 875 (2004).
A. Presuit Notification Requirement
¶ 6 Article II, section 26 of the Washington Constitution provides, " The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state." This court has historically recognized that the legislature has the constitutionally sanctioned power to [179 Wn.2d 65] alter the common law doctrine of sovereign immunity. See Billings v. State, 27 Wash. 288, 291, 67 P. 583 (1902) (recognizing that " only by virtue of [a] statute [passed under article II, section 26] that an action can be maintained against the state" ); Coulter v. State, 93 Wash.2d 205, 207, 608 P.2d 261 (1980) (stating that " the abolition of sovereign immunity is a matter within the legislature's determination" ). The legislature first exercised this constitutional authority to abolish state sovereign immunity in 1961 and subsequently amended its waiver in 1963. Former RCW 4.92.090 (1961). The current version of the statute reads as follows, " The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation." RCW 4.92.090. Subsequent court decisions read the waiver as also abolishing any derivative immunity previously available to local governmental entities. Kelso v. City of Tacoma, 63 Wash.2d 913, 916-19, 390 P.2d 2 (1964); Evangelical United Brethren Church v. State, 67 Wash.2d 246, 252, 407 P.2d 440 (1965). The legislature later codified these rulings abolishing the immunity of local government entities in 1967. Former RCW 4.96.010(1967).
¶ 7 In Hunter v. North Mason High School, 85 Wash.2d 810, 818-19, 539 P.2d 845 (1975), we invalidated former RCW 4.96.020 (1967) as a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. Former RCW 4.96.020, which was passed under article II, section 26, required that notice of tort claims against the State be made within 120 days from the date the claims arose. See Hunter, 85 Wash.2d at 813, 818-19, 539 P.2d 845. Through this statute, the legislature essentially created a truncated statute of limitations of 120 days for tort claims against government entities. See id. at 813, 539 P.2d 845. Other potential plaintiffs, however, needed only to act against private defendants within the statute of limitations period of three years. Id. The court reasoned that this arrangement " produce[d] [179 Wn.2d 66] two classes of tort victims and place[d] a substantial burden on the right to bring an action of one of them." Id. Thus, we ruled that former RCW 4.96.020 was unconstitutional on its face. See id. at 818-19, 539 P.2d 845.
¶ 8 As part of our reasoning in Hunter, we also noted that " [t]he unequivocal waiver of sovereign immunity in the 1963 act thus clearly indicates that ‘ the [State's] waiver of tort immunity is unbridled by procedural conditions pertaining to the consent to be sued.’ " Id. at 818, 539 P.2d 845 (dictum) (alteration in original) (quoting Cook v. State, 83 Wash.2d 599, 613, 521 P.2d 725 (1974) (Utter, J., concurring)). This reasoning was not only unnecessary to the primary equal protection holding of the case, but subsequent decisions from this court have also allowed the legislature to establish certain conditions precedent before suit can be brought against the State. See Coulter, 93 Wash.2d at 207, 608 P.2d 261 (upholding the presuit requirements of former RCW 4.92.110 for tort damages against the State under an article II, section 26 rationale); Medina v. Pub. Util. Dist. No. 1 of Benton County, 147 Wash.2d 303, 312, 53 P.3d 993 (2002) (upholding the presuit notice requirement of former RCW 4.96.020(4) for tort damages against local government entities under an article II, section 26 rationale); see also Debra L. Stephens & Bryan P. Harnetiaux, The Value of Government Tort Liability: Washington State's Journey from Immunity to Accountability, 30 Seattle U.L.Rev. 35, 42 (2006) (" The Washington legislature's waiver of sovereign immunity is ... not without limitations. Rather, the waiver contains some procedural limitations, including provisions
in the 1963 act requiring notice of claims, restricting execution on judgments, and providing for a specific fund from which payment of claims and judgments must be made." ). Accordingly, the application of the 90 day presuit notice requirement of RCW 7.70.100(1), the statute at issue, against the State should be treated no differently.
¶ 9 In Coulter, which was decided in 1980, we distinguished Hunter and specifically noted that our decision [179 Wn.2d 67] in that case was based on an equal protection rationale, rather than on an unequivocal waiver of sovereign immunity. Coulter, 93 Wash.2d at 207, 608 P.2d 261. Additionally, we cited " the proposition that the abolition of sovereign immunity is a matter within the legislature's determination." Id. (citing Haddenham v. State, 87 Wash.2d 145, 149, 550 P.2d 9 (1976)). There, former RCW 4.92.110 required that the plaintiff file a claim with the chief fiscal officer of the executive branch, and we reasoned that it is " clear that [the legislature] is providing ‘ in what manner’ suit shall be brought against the State." Id. (quoting article II, section 26). Ultimately, we decided that the presuit notification requirement of former RCW 4.92.110 was within the authority of the legislature to enact under article II, section 26. Id. The same principle with respect to local government entities was also at issue in Medina. There, former RCW 4.96.020(4) required a 60 day presuit notice to local government entities in all tort actions. Medina, 147 Wash.2d at 308, 53 P.3d 993. We upheld this presuit notice requirement as being within the constitutional power of the legislature under article II, section 26.  Id. at 314-15, 53 P.3d 993.
[179 Wn.2d 68] ¶ 10 Like Coulter and Medina, where presuit notice requirements were upheld under article II, section 26, the 90 day presuit notice requirement of former RCW 7.70.100(1) as applied to state defendants should also be upheld under article II, section 26. In 2009, the legislature chose to exempt " claims involving injuries from health care" from the requirements of former RCW 4.92.110 (2006) and former RCW 4.96.020(4) (2006) after it passed former RCW ...