Bennett v. United States

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
DECEMBER 7, 2023
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
DECEMBER 7, 2023
ERIN L. LENNON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

CERTIFICATION FROM THE )
UNITED STATES DISTRICT )
COURT FOR THE WESTERN )
DISTRICT OF WASHINGTON ) No. 101300-1
IN )
)
BETTE BENNETT, )
) EN BANC
Plaintiff, )
)
v. )
) Filed: December 7, 2023
UNITED STATES OF AMERICA, )
)
Defendant. )
_______________________________)

YU, J.— This case concerns the constitutionality of Washington’s eight-year

statute of repose for medical malpractice actions. The statute of repose provides

“that in no event shall an action be commenced more than eight years after” the

“alleged professional negligence,” subject to certain exceptions not applicable

here. RCW 4.16.350(3). If a medical malpractice action is “not commenced”
Bennett v. United States, No. 101300-1

within eight years, then the action “shall be barred”—even if the patient is unable

to determine the cause of their injury within that time frame. Id.

In this case, plaintiff Bette Bennett alleges that she incurred a traumatic

brain injury caused by defendant United States’ medical negligence. However, the

cause of Bennett’s injury was not diagnosed until the eight-year repose period had

already expired. As a result, it was impossible for Bennett to timely commence her

medical malpractice action. The United States accordingly moved to dismiss her

complaint as time barred. Before ruling on the motion to dismiss, the federal

district court certified two questions to this court, asking whether the statute of

repose violates (1) the privileges and immunities clause of article I, section 12 of

the Washington Constitution or (2) the right to access the courts pursuant to article

I, section 10 of the Washington Constitution.

In answering these questions, we reaffirm the legislature’s broad authority to

set time limits for commencing an action. We also recognize that when exercising

this authority, the legislature must weigh competing interests and make difficult

choices as a matter of policy. We do not seek to constrain the legislature’s

authority or to second-guess its policy decisions. However, it is our duty to

faithfully apply the Washington Constitution as interpreted in this court’s

precedent. In accordance with our precedent, we must conclude that the medical

malpractice statute of repose in RCW 4.16.350(3) implicates the heightened

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protections of our state privileges and immunities clause. We must also conclude

that as enacted in 2006, the statute of repose does not satisfy article I, section 12’s

“reasonable ground” test. Therefore, the answer to the first certified question is

yes: RCW 4.16.350(3)’s eight-year statute of repose for medical malpractice

actions violates the privileges and immunities clause of article I, section 12 as a

matter of independent state law. We decline to reach the second certified question.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Bennett is married to a service member in the United States Navy. 1 On May

18, 2009, Bennett underwent sinus surgery at Bremerton Naval Hospital, after

which “splints were placed [in Bennett’s nose] to keep her nasal airway open.”

Clerk’s Papers (CP) at 11.

One week later, Bennett “experienced significant bleeding from her nose”

and was taken by ambulance to the Bremerton Naval Hospital emergency room.

Id. The on-call physician examined Bennett, removed the splints from her nose,

and inserted nasal packing. When the physician “pushed the packing up her nose,

[Bennett] heard a noise that sounded like cracking, felt acute pain, and passed out.”

Id. Bennett was rushed to the operating room to control her nosebleed. She was

1
At this procedural stage, the allegations in Bennett’s complaint “are assumed as true and
the complaint is construed in her favor.” Clerk’s Papers at 92 (citing Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)).

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later discharged, but she “returned on May 29, 2009 to have the packing removed

from her nasal cavity.” Id. at 12.

Bennett “subsequently developed a complex constellation of symptoms

including migraines, malaise, light sensitivity, memory loss, and other

neurocognitive impairment.” Id. Bennett sought treatment from “a series of

neurologists and other specialists,” but they “were unable to diagnose the cause of

her symptoms.” Id. Finally, in August 2017, a neuropsychologist determined that

Bennett’s symptoms were “consistent with a traumatic brain injury” and referred

her to another specialist. Id. In December 2017, the specialist diagnosed Bennett

“with traumatic brain injury to her prefrontal cortex caused by the nasal pack

insertion in [May] 2009.” Id.

In August 2018, Bennett filed an administrative tort claim with the

Department of the Navy in accordance with federal law. See 28 U.S.C. § 2675.

The Department of the Navy denied her claim and informed Bennett that she had

six months to commence an action in federal district court. Within six months,

Bennett filed a complaint for medical malpractice in the United States District

Court for the Western District of Washington pursuant to the Federal Tort Claims

Act (FTCA), Pub. L. No. 79-601, 60 Stat. 812-852.

The United States moved to dismiss Bennett’s complaint as time barred

based on the eight-year statute of repose in RCW 4.16.350(3). The United States

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argued that “[a]t the latest, the alleged negligent acts or omissions . . . occurred on

or prior to May 29, 2009.” CP at 28. Therefore, pursuant to the statute of repose,

Bennett’s “cause of action was extinguished eight years later on May 29, 2017”—

several months before her traumatic brain injury was diagnosed, and over a year

before she filed her administrative tort claim. Id. In response, Bennett did not

challenge the United States’ timeline or assert that there were any relevant factual

disputes. Instead, Bennett argued that the statute of repose could not apply as a

matter of law, both because it is preempted by the FTCA and because it violates

the Washington Constitution.

Before ruling on the motion to dismiss, the federal district court certified two

questions to this court, asking whether the statute of repose violates article I,

sections 10 and 12 of the Washington Constitution. We declined to answer the

certified questions at that time because the federal district court had not yet ruled

on Bennett’s FTCA preemption argument, which “could make it unnecessary to

reach the state law issues.” Ord., Bennett v. United States, No. 99220-7, at 2

(Wash. Dec. 4, 2020).

The federal district court subsequently denied the United States’ motion to

dismiss, ruling that the statute of repose was preempted by the FTCA. However,

the Ninth Circuit Court of Appeals reversed on interlocutory appeal, holding that

the FTCA “incorporates and applies state laws that serve as statutes of repose

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rather than overriding them.” Bennett v. United States, 44 F.4th 929, 931 (9th Cir.

2022). Therefore, the Ninth Circuit Court of Appeals remanded to the federal

district court to decide “the threshold question of the constitutionality of Section

4.16.350 under the Washington state constitution. Depending on the outcome of

that issue, this action may either be dismissed for lack of jurisdiction or proceed to

the merits of Bennett’s claims.” Id. at 938.

On remand, the federal district court certified the same two questions to this

court regarding the constitutionality of the statute of repose. We retained the

certified questions for decision and accepted six amici briefs on the merits.2

ISSUES

A. Does the statute of repose in RCW 4.16.350(3) 3 violate the privileges

and immunities clause of the Washington State Constitution, article I, section 12?

B. Does the statute of repose in RCW 4.16.350(3) unconstitutionally

restrict a plaintiff’s right to access the court in violation of the Washington State

Constitution, article I, section 10?

2
Bennett is supported by amicus Washington State Association for Justice Foundation.
Amici supporting the United States are (1) the State of Washington, (2) Planned Parenthood
Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, (3) Cedar River Clinics, (4) the
Washington State Medical Association and Washington State Hospital Association, and (5) the
American Medical Association.
3
As phrased by the federal district court, the certified questions refer to RCW 4.16.350 as
a whole. We rephrase the certified questions slightly to refer specifically to the statute of repose.

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ANALYSIS

A. Background law on commencement of civil actions

To provide context for the questions presented, it is first necessary to review

Washington law regarding timely commencement of civil actions generally and

medical malpractice actions specifically.

Before the 1970s, medical malpractice actions “were governed by the

limitations period in the general tort statute of limitations.” Gunnier v. Yakima

Heart Ctr., Inc., P.S., 134 Wn.2d 854, 860, 953 P.2d 1162 (1998). The general tort

statute of limitations “describes the actionable event as the accrual of a cause of

action.” Ruth v. Dight, 75 Wn.2d 660, 666, 453 P.2d 631 (1969) (emphasis added)

(citing former RCW 4.16.010 (1891); former RCW 4.16.080(2) (1937)); see also

RCW 4.16.005. Thus, cases addressing timely commencement of civil actions

often focused on when the action “accrued.” E.g., Ruth, 75 Wn.2d 660; Lindquist

v. Mullen, 45 Wn.2d 675, 277 P.2d 724 (1954), overruled in part on other grounds

by Ruth, 75 Wn.2d at 667.

“In many instances an action accrues immediately when the wrongful act

occurs.” 1000 Va. Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 575, 146 P.3d 423

(2006). However, “where the plaintiff is unaware of harm sustained,” the action

may not accrue until “the plaintiff discovers, or in the reasonable exercise of

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diligence should discover, the elements of the cause of action.” Id. at 575-76. This

is known as “the discovery rule of accrual.” Id. at 575.

This court first adopted the discovery rule of accrual in 1969 as a matter of

statutory interpretation. Ruth, 75 Wn.2d 660. In Ruth, we held that the word

“accrual” is “a term susceptible of interpretation from its very nature,” and we

adopted the discovery rule of accrual as “both a preservation of limitations on the

time in which the action may be brought and a preservation of the remedy, too,

where both parties are blameless as to delay in discovery of the asserted wrong.”

Id. at 666-67.

Ruth was a medical malpractice action, but in subsequent cases, we have

extended the discovery rule of accrual to various types of civil actions. E.g., 1000

Va. Ltd. P’ship, 158 Wn.2d at 579 (“contract claims involving latent construction

defects”). However, medical malpractice actions are “no longer subject to the

accrual rule” because “[t]he Legislature responded to Ruth in 1971 by enacting

RCW 4.16.350.” Gunnier, 134 Wn.2d at 861.

RCW 4.16.350(3) contains three provisions for timely commencement of

medical malpractice actions—a three-year statute of limitations, a one-year

discovery rule, and an eight-year statute of repose:

Any civil action for damages for injury occurring as a result of health
care which is provided after June 25, 1976 . . . based upon alleged
professional negligence shall be commenced within three years of the
act or omission alleged to have caused the injury or condition, or one

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year of the time the patient or [their] representative discovered or
reasonably should have discovered that the injury or condition was
caused by said act or omission, whichever period expires later, except
that in no event shall an action be commenced more than eight years
after said act or omission.

In Bennett’s case, the three-year statute of limitations and one-year discovery rule

are inapplicable because “the FTCA’s timing provisions act as a statute of

limitations that supersedes any state statute of limitations.” Bennett, 44 F.4th at

931. Nevertheless, her action remains subject to the eight-year statute of repose.

Id.

Statutes of repose provide time limits for bringing an action, but they “are

‘of a different nature than statutes of limitation.’” 1000 Va. Ltd. P’ship, 158

Wn.2d at 574 (quoting Rice v. Dow Chem. Co., 124 Wn.2d 205, 211, 875 P.2d

1213 (1994)). Broadly speaking, “‘[a] statute of limitation bars [a] plaintiff from

bringing an already accrued claim after a specific period of time. A statute of

repose terminates a right of action after a specified time, even if the injury has not

yet occurred.’” Id. at 574-75 (quoting Rice, 124 Wn.2d at 211-12).

Statutory repose periods are typically “‘measured not from the date on which

the claim accrues but instead from the date of the last culpable act or omission of

the defendant.’” Bennett, 44 F.4th at 935 (quoting CTS Corp. v. Waldburger, 573

U.S. 1, 8, 134 S. Ct. 2175, 189 L. Ed. 2d 62 (2014)). If the repose period expires

before the injured person discovers the cause of their injury, then the statute of

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repose simply “‘prohibit[s] a cause of action from coming into existence.’” Id.

(quoting CTS Corp., 573 U.S. at 16).

That is what happened in Bennett’s case. For purposes of its motion to

dismiss, the United States has “accepted as true” that Bennett could not have

reasonably discovered the cause of her injury until after the eight-year repose

period had already expired. Def.-Appellee’s Answering Br. at 12 n.1. Thus, the

statute of repose makes it impossible for Bennett to obtain a remedy in tort; her

cause of action was time barred before it even existed.

We are asked whether the statute of repose violates the privileges and

immunities clause of article I, section 12 or the right to access the courts pursuant

to article I, section 10. “We review the constitutionality of a statute de novo.”

Schroeder v. Weighall, 179 Wn.2d 566, 571, 316 P.3d 482 (2014). Likewise,

“[c]ertified questions from federal court are questions of law that we review de

novo.” Carlsen v. Glob. Client Sols., LLC, 171 Wn.2d 486, 493, 256 P.3d 321

(2011). “We presume statutes are constitutional, and the party challenging

constitutionality bears the burden of proving otherwise.” Woods v. Seattle’s Union

Gospel Mission, 197 Wn.2d 231, 239, 481 P.3d 1060 (2021), cert. denied, 142

S. Ct. 1094 (2022).

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B. The eight-year statute of repose for medical malpractice claims violates the
privileges and immunities clause of article I, section 12

In response to the first certified question, we hold that RCW 4.16.350(3)’s

statute of repose violates the independent state law protections of article I, section

12. The statute of repose implicates a fundamental right of state citizenship by

“limiting the pursuit of common law claims against certain defendants.”

Schroeder, 179 Wn.2d at 573. However, the statute of repose does not “in fact

serve[ ] the legislature’s stated goal[s].” Id. at 574. Therefore, we must conclude

that the statute of repose violates article I, section 12’s privileges and immunities

clause.

1. Overview of state law protections pursuant to article I, section 12

Article I, section 12 of the Washington Constitution provides, “No 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.” In many cases, “this court has construed

article I, section 12 as ‘substantially similar’ to the federal equal protection clause”

of the Fourteenth Amendment to the United States Constitution. Schroeder, 179

Wn.2d at 571 (quoting Seeley v. State, 132 Wn.2d 776, 788, 940 P.2d 604 (1997)).

However, we have “also recognized that article I, section 12 differ[s] from and [is]

more protective than the federal equal protection clause and require[s] a very

different analysis in certain situations.” Id. at 572. The requirement for an

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independent state law analysis arises from the different purposes underlying article

I, section 12’s privileges and immunities clause and the federal equal protection

clause.

While “the Fourteenth Amendment was intended to prevent discrimination

against disfavored individuals or groups,” article I, section 12 “was intended to

prevent favoritism and special treatment to the few while disadvantaging others.”

Woods, 197 Wn.2d at 242. As a result, article I, section 12 provides heightened

state law protections “when the threat is not of majoritarian tyranny but of a special

benefit to a minority and when the issue concerns favoritism rather than

discrimination.” Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 145

Wn.2d 702, 731, 42 P.3d 394 (2002) (Grant County I). Nevertheless, “not every

statute authorizing a particular class to do or obtain something involves a

‘privilege’ subject to article I, section 12.” Grant County Fire Prot. Dist. No. 5 v.

City of Moses Lake, 150 Wn.2d 791, 812, 83 P.3d 419 (2004) (Grant County II).

Instead, “the terms ‘privileges and immunities’ ‘pertain alone to those fundamental

rights which belong to the citizens of the state by reason of such citizenship.’” Id.

at 812-13 (quoting State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902)).

Thus, an independent state law analysis of article I, section 12 requires

courts to engage in “a two-part test.” Schroeder, 179 Wn.2d at 572. “First, we ask

whether a challenged law grants a ‘privilege’ or ‘immunity’ for purposes of our

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state constitution. If the answer is yes, then we ask whether there is a ‘reasonable

ground’ for granting that privilege or immunity.” Id. at 573 (citation omitted)

(quoting Grant County II, 150 Wn.2d at 812; Grant County I, 145 Wn.2d at 731).

If the privilege or immunity is not supported by reasonable grounds, then the

challenged law violates article I, section 12.

2. The statute of repose implicates a “privilege” or “immunity” for
purposes of article I, section 12

To determine whether the statute of repose “implicates a ‘privilege’ or

‘immunity,’” we must decide whether the statute implicates any of “the

‘fundamental rights’ of state citizenship.” Id. at 572 (internal quotation marks

omitted) (quoting Grant County II, 150 Wn.2d at 812-13). In accordance with our

precedent, we hold that the statute of repose implicates the fundamental right to

pursue a common law cause of action.

Fundamental rights of state citizenship for purposes of article I, section 12

are not necessarily the same as fundamental rights for purposes of the federal equal

protection clause. Instead, to locate fundamental rights of state citizenship for

purposes of article I, section 12, we typically look to “our early cases

distinguishing the fundamental rights of state citizenship.” Martinez-Cuevas v.

DeRuyter Bros. Dairy, 196 Wn.2d 506, 518-19, 475 P.3d 164 (2020). These rights

include

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“the right to remove to and carry on business [in the state]; the right,
by usual modes, to acquire and hold property, and to protect and
defend the same in the law; the rights to the usual remedies to collect
debts, and to enforce other personal rights; and the right to be exempt,
in property or persons, from taxes or burdens which the property or
persons of citizens of some other state are exempt from.”

Grant County II, 150 Wn.2d at 813 (quoting Vance, 29 Wash. at 458). In addition,

we have recognized the fundamental “right to an individual’s sexual orientation

and the right to marry,” as well as “the fundamental right to statutory protection for

citizens working in extremely dangerous conditions.” Woods, 197 Wn.2d at 242;

Martinez-Cuevas, 196 Wn.2d at 519 (citing CONST. art. II, § 35).

This court has already held that “‘the rights to the usual remedies . . . to

enforce other personal rights’” include “the right to pursue common law causes of

action in court.” Schroeder, 179 Wn.2d at 573 & n.5 (quoting Vance, 29 Wash. at

458). We have “also recognized that ‘[m]edical malpractice claims are

fundamentally negligence claims, rooted in the common law tradition.’” Id. at 573

(alteration in original) (quoting Putman v. Wenatchee Valley Med. Ctr., PS, 166

Wn.2d 974, 982, 216 P.3d 374 (2009)). Therefore, our precedent holds that when

a statute “limits the ability of certain plaintiffs . . . to bring medical malpractice

claims,” the statute “grants an immunity (and burdens a privilege) triggering the

reasonable ground test under article I, section 12.” Id. at 573-74.

The United States seeks to distinguish this precedent by arguing that Bennett

is not, in fact, asserting the fundamental right to pursue a common law cause of

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action. Instead, according to the United States, Bennett asserts only “a supposed

fundamental right to an unlimited discovery rule.” Def.-Appellee’s Answering Br.

at 20. The United States argues that this “unlimited discovery rule” cannot be part

of the fundamental right to pursue a common law cause of action because the

discovery rule of accrual did not exist at common law when article I, section 12

was adopted. The United States further contrasts this case with Schroeder, in

which “[t]he specific right at issue” was “the right to tolling of a statute of

limitations during minority,” which did exist at common law prior to statehood.

Id. at 43-44 (citing CODE OF 1881, § 37).

We cannot follow the United States’ approach to this issue because it is

inconsistent with our precedent. Schroeder did not narrowly consider “the right to

tolling of a statute of limitations during minority,” and it did not discuss or cite any

provisions from the Washington Territorial Code. Contra id. Instead, Schroeder

broadly defined the right in question as “the right to pursue common law causes of

action in court,” reaffirmed that medical malpractice actions are “‘rooted in the

common law tradition,’” and applied the reasonable ground test to “scrutinize the

legislative distinction” that existed in current law. 179 Wn.2d at 573-74 (quoting

Putman, 166 Wn.2d at 982). The United States’ narrow reading of Schroeder is

thus inconsistent with the actual analysis we applied in that case.

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Moreover, although the existence of a fundamental right of state citizenship

is generally determined by reference to early case law, the scope of fundamental

rights can, and must, change over time. For example, although the fundamental

right “to marry” was likely recognized when article I, section 12 was adopted in

1889, it certainly did not include the right “to marry whomever [we] choose” until

much later. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042

(1923); Woods, 197 Wn.2d at 243 (emphasis added); see Loving v. Virginia, 388

U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); Obergefell v. Hodges, 576 U.S.

644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). Nevertheless, for purposes of

article I, section 12, the fundamental right to marry applies to everyone; its scope is

not limited to the right to marry as it was recognized in 1889. Woods, 197 Wn.2d

at 243-44.

Thus, the question in this case is not whether there is a fundamental right to

the discovery rule of accrual.4 Instead, the question is whether the statute of repose

implicates the fundamental “right to pursue common law causes of action in court”

by granting “privileges or immunities which upon the same terms shall not equally

belong to all citizens, or corporations.” Schroeder, 179 Wn.2d at 573; CONST. art.

4
Indeed, we have recognized that eliminating the discovery rule of accrual with “a
general statute of repose applying to all tort claims” might not violate article I, section 12 at all.
DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 145 n.1, 960 P.2d 919 (1998).

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I, § 12. In light of this court’s controlling precedent, we must hold that the answer

is yes.

If a medical malpractice action does not accrue within the eight-year repose

period, then it can never be brought. In such a case, as in Schroeder, the defendant

is granted “an article I, section 12 ‘immunity’” from the plaintiff’s common law

cause of action. 179 Wn.2d at 573. Such immunity explicitly does “not equally

belong to all citizens, or corporations” because the statute of repose “is tolled upon

proof of fraud, intentional concealment, or the presence of a foreign body not

intended to have a therapeutic or diagnostic purpose or effect,” and it “does not

apply to a civil action based on intentional conduct . . . for injury occurring as a

result of childhood sexual abuse.” CONST. art. I, § 12 (emphasis added); RCW

4.16.350(3). Thus, only “certain defendants” are entitled to immunity pursuant to

the statute of repose, thereby “triggering article I, section 12’s reasonable ground

analysis.” Schroeder, 179 Wn.2d at 573.

3. The statute of repose is not supported by reasonable grounds

In the second step of our article I, section 12 analysis, we must “scrutinize

the legislative distinction to determine whether it in fact serves the legislature’s

stated goal.” Id. at 574. In accordance with our precedent, we must conclude that

the legislature’s stated rationale is not, in fact, served by the statute of repose as

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enacted in 2006. Therefore, the statute of repose cannot satisfy the reasonable

ground test.

a. Background on RCW 4.16.350(3)’s statute of repose

Because the reasonable ground test requires careful consideration of the

legislative purposes underlying the challenged statute, it is first necessary to briefly

review the legislative history of the statute of repose.

As discussed above, after this court first recognized the discovery rule of

accrual for tort actions, the legislature responded “in 1971 by enacting RCW

4.16.350.” Gunnier, 134 Wn.2d at 861. As originally enacted, RCW 4.16.350 did

not contain a separate statute of repose. Instead, RCW 4.16.350 provided only that

a medical malpractice action “based upon alleged professional negligence shall be

commenced within (1) three years from the date of the alleged wrongful act, or

(2) one year from the time that plaintiff discovers the injury or condition was

caused by the wrongful act, whichever period of time expires last.” LAWS OF 1971,

ch. 80, § 1. The eight-year statute of repose was added in 1976, and RCW

4.16.350 was subsequently amended several more times. LAWS OF 1975-76, 2d Ex.

Sess., ch. 56, § 1.

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By 1998, the operative language of RCW 4.16.350 was essentially 5 identical

to the current statute. LAWS OF 1998, ch. 147, § 1. That same year, this court

struck down the statute of repose as unconstitutional in DeYoung v. Providence

Medical Center, 136 Wn.2d 136, 960 P.2d 919 (1998). DeYoung predates our

recognition of heightened protections for article I, section 12 claims, so we applied

only “rational basis” review. Id. at 144. We concluded that the statute of repose

could have legitimate purposes, including responding “to a perceived insurance

crisis” and “the barring of stale claims.” Id. at 147, 150. Nevertheless, we held

that the statute was “too attenuated to survive rational basis scrutiny” due to “the

minuscule number of claims subject to the repose provision.” Id. at 149-50.

Eight years after DeYoung, the legislature “reenacted” the same statute of

repose, using the same operative language. LAWS OF 2006, ch. 8, § 302. This time,

however, the legislature added a separate section “expressly stating [its] rationale”

to “respond to the court’s decision in DeYoung.” Id. § 301. The legislature’s

stated rationale was that the statute of repose “will tend to reduce rather than

increase the cost of [medical] malpractice insurance” and “will provide protection

against claims, however few, that are stale, based on untrustworthy evidence, or

that place undue burdens on defendants.” Id. The legislature “further [found] that

5
The only difference between the current statute and the version that existed in 1998 is
that masculine pronouns (“his”) have now been replaced with binary pronouns (“his or her”).
Compare LAWS OF 1998, ch. 147, § 1, with LAWS OF 2011, ch. 336, § 88.

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an eight-year statute of repose is a reasonable time period in light of the need to

balance the interests of injured plaintiffs and the health care industry.” Id.

We recognize the legislature’s good faith in responding to our opinion in

DeYoung. Setting the outer time limit for commencement of a civil action is a

difficult but necessary task in light of the important policy interests at stake. In

this case, the legislature’s task was even more challenging because our article I,

section 12 jurisprudence was still developing when the legislature reenacted the

statute of repose in 2006. Nevertheless, we must apply the protections of article I,

section 12 in accordance with this court’s controlling precedent. To do so, we

must “scrutinize the legislative distinction to determine whether it in fact serves the

legislature’s stated goal.” Schroeder, 179 Wn.2d at 574.

b. As reenacted in 2006, the statute of repose is not supported by
reasonable grounds

When the legislature reenacted the statute of repose, it provided three

specific rationales for doing so: controlling malpractice insurance costs, barring

stale claims, and balancing the interests of patients and health care providers.

LAWS OF 2006, ch. 8, § 301. We reaffirm that these are all legitimate legislative

purposes. See DeYoung, 136 Wn.2d at 147-48, 150.

We also reaffirm that “[t]he article I, section 12 reasonable ground test is

more exacting than rational basis review” because, unlike rational basis review, the

reasonable ground test does not allow courts to “hypothesize facts to justify a

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legislative distinction.” Schroeder, 179 Wn.2d at 574. Nevertheless, the

legislature is not required to satisfy an evidentiary burden before exercising its

broad authority to legislate. The reasonable ground test requires heightened

scrutiny, but it does not mean that every legislative classification implicating a

fundamental right of state citizenship is “‘subject to courtroom fact-finding.’”

DeYoung, 136 Wn.2d at 147 (quoting Gossett v. Farmers Ins. Co., 133 Wn.2d 954,

979, 948 P.2d 1264 (1997)). Instead, we must interpret the language of the statute

of repose and the legislature’s stated rationale to determine whether “the principle

for which the statute really stands” is consistent with its underlying rationale.

Schroeder, 179 Wn.2d at 576. In other words, there must be a nexus between the

legislature’s stated purpose and the challenged statute, which cannot rest solely on

hypothesized facts.

The legislature’s first asserted rationale for the statute of repose was that “to

the extent that the eight-year statute of repose has an effect on medical malpractice

insurance, that effect will tend to reduce rather than increase the cost of

malpractice insurance.” LAWS OF 2006, ch. 8, § 301. Thus, the legislature did not

assert that the statute of repose would, in fact, decrease the cost of medical

malpractice insurance. Moreover, our precedent holds that we cannot “hypothesize

facts” to conclude that the statute of repose would have such an effect. Schroeder,

179 Wn.2d at 574. Therefore, the legislature’s legitimate interest in reducing

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Bennett v. United States, No. 101300-1

medical malpractice insurance premiums does not provide a reasonable ground for

the statute of repose.

Next, the legislature stated that the statute of repose “will provide protection

against claims, however few, that are stale, based on untrustworthy evidence, or

that place undue burdens on defendants” because “compelling even one defendant

to answer a stale claim is a substantial wrong, and setting an outer limit to the

operation of the discovery rule is an appropriate aim.” LAWS OF 2006, ch. 8,

§ 301. We have previously interpreted this language when deciding an article I,

section 12 challenge to a different statute, former RCW 4.16.190(2) (2006), “which

eliminate[d] tolling of the statute of limitations for minors in the context of medical

malpractice claims.” Schroeder, 179 Wn.2d at 569. As a result, our analysis in

Schroeder necessarily informs our analysis in this case.

Schroeder determined that this legislative rationale properly related to the

“‘substantial wrong’” of “‘compelling a defendant to answer a stale claim.’” Id. at

576 (quoting DeYoung, 136 Wn.2d at 150). We then considered whether the

challenged statute had a sufficient nexus to its stated rationale, and we held that it

did not. To the contrary, the plain language of the challenged statute in Schroeder

was “not addressed to stale claims generally” because it applied only to “medical

malpractice injuries to minors.” Id. Thus, in direct contrast to its stated rationale,

the challenged statute in Schroeder indicated that “a stale claim is not a substantial

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Bennett v. United States, No. 101300-1

wrong—at least, not substantial enough to warrant preventative legislation—when

it is brought by a plaintiff who was unable to sue at the time of injury for any

reason other than minority.” Id.

In this case, we must similarly conclude that the eight-year statute of repose

in RCW 4.16.350(3) is not addressed to stale claims generally, in light of the

explicit exemptions and tolling provisions noted above. Thus, like the statute in

Schroeder, “the principle for which the statute [of repose] really stands is not that

‘compelling even one defendant to answer a stale claim is a substantial wrong.’”

Id. (quoting LAWS OF 2006, ch. 8, § 301). Rather, the statute of repose stands for

the principle that requiring a medical malpractice defendant to answer a stale claim

is a substantial wrong unless (1) the action is brought by a plaintiff who can prove

“fraud, intentional concealment, or the presence of a foreign body” or (2) the

action is based on “injury occurring as a result of childhood sexual abuse.” RCW

4.16.350(3). Thus, according to its plain language, the statute of repose does not in

fact serve the legislature’s stated rationale of preventing stale claims generally.

The United States argues that the statute’s exceptions “make the statute more

reasonable, not less, because they limit the harshest consequences of the rule.”

Def.-Appellee’s Answering Br. at 59. As a general proposition, we agree; indeed,

we have already held that “[t]here are reasonable grounds for the tolling and other

statutory provisions which except a cause of action from the eight-year bar.”

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Bennett v. United States, No. 101300-1

DeYoung, 136 Wn.2d at 146. However, for purposes of article I, section 12, the

question is not whether the statute’s exceptions are reasonable. Instead, the

question is whether barring those remaining claims, which are subject to the statute

of repose, in fact serves the legislature’s stated rationale. See Schroeder, 179

Wn.2d at 576-77. Based on this court’s controlling precedent, we must hold that

the answer is no.

Finally, in its statement of rationale, the legislature asserted “that an eight-

year statute of repose is a reasonable time period in light of the need to balance the

interests of injured plaintiffs and the health care industry.” LAWS OF 2006, ch. 8,

§ 301. Along the same lines, the United States argues that “the reenacted statute of

repose was part of a larger compromise” and that the statute of repose “aligns with

the judgment of many other state legislatures.” Def.-Appellee’s Answering Br. at

57-58. In accordance with our precedent, we must hold that the asserted legislative

compromise, by itself, is insufficient to show that the statute of repose is supported

by reasonable grounds.

Most notably, the challenged statute in Schroeder was adopted alongside the

statute of repose at issue here; indeed, they were neighboring sections of the same

bill. LAWS OF 2006, ch. 8, §§ 302-303. The plaintiff’s article I, section 12 claim

was successful in Schroeder despite the underlying legislative compromise, a point

that the dissent explicitly highlighted in that case. See 179 Wn.2d at 581 (J.M.

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Bennett v. United States, No. 101300-1

Johnson, J., dissenting) (“RCW 4.16.190 and RCW 4.16.350 were amended in

2006 as part of a complicated legislative compromise.”). Therefore, to hold that

the legislative compromise underlying the statute of repose is sufficient to defeat

Bennett’s article I, section 12 claim in this case, we would need to disavow

Schroeder, which no party has asked us to do.

In addition, to the extent the United States urges us to follow the law of

other states, we decline to do so. We have already acknowledged that “[a] clear

majority” of other states have upheld “the constitutionality of medical malpractice

statutes of repose.” DeYoung, 136 Wn.2d at 150 n.4. Nevertheless, we have

previously declined “to draw generalizations” from other jurisdictions “because the

cases involve both state and federal constitutional claims . . . [and] the statutes vary

widely.” Id. We follow the same path today.

In sum, the answer to the first certified question is yes: RCW 4.16.350(3)’s

eight-year statute of repose for medical malpractice actions violates the heightened

protections of article I, section 12’s privileges and immunities clause as a matter of

independent state law. Therefore, we need not reach the second certified question

regarding access to the courts pursuant to article I, section 10.

CONCLUSION

We reaffirm the legislature’s authority to set time limits for commencement

of civil actions, and we recognize the challenging nature of that task in light of the

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 Bennett v. United States, No. 101300-1

competing policy interests at stake. Nevertheless, in accordance with our

precedent, we must hold that RCW 4.16.350(3)’s statute of repose for medical

malpractice claims violates the privileges and immunities clause of article I,

section 12 as a matter of independent state law. We decline to reach the second

certified question.

WE CONCUR:

Darvas, J.P.T.

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Bennett v. United States of Am.

No. 101300-1

MADSEN, J. (concurrence/dissent)—I agree with the majority that RCW

4.16.350(3)’s statute of repose grants immunity only to “‘certain defendants’” under

article I, section 12 of the Washington Constitution. Majority at 17 (quoting Schroeder v.

Weighall, 179 Wn.2d 566, 573, 316 P.3d 482 (2014)). I depart from the majority’s

conclusion that reasonable grounds do not support the challenged statute. Id. at 17, 20-

25.

In DeYoung v. Providence Medical Center, we struck down, as unconstitutional,

the predecessor to RCW 4.16.350(3) because we were forced to speculate about the

reasonable bases underlying it. 136 Wn.2d 136, 149-50, 960 P.2d 919 (1998).

Lawmakers reenacted the statute of repose, adding specific and extensive findings.

LAWS OF 2006, ch. 8, §§ 301, 302. Again, the majority strikes down the statute, this time

based on a lack of nexus with the legislature’s “legitimate legislative purposes.” Majority

at 20, 21. I disagree.

While courts may not speculate or “hypothesize facts to justify a legislative

distinction,” Schroeder, 179 Wn.2d at 574, such hypothesis is unnecessary here.
No. 101300-1

The legislature consulted DeYoung and responded accordingly, stating,

The purpose of this section and section 302 of this act is to respond to the
court’s decision in DeYoung. . . by expressly stating the legislature’s
rationale for the eight-year statute of repose in RCW 4.16.350.

LAWS OF 2006, ch. 8, § 301. The legislature then outlined those rationales: to control the

cost of medical malpractice insurance, to recognize that requiring defense against a stale

claim is a substantial wrong, and to balance the interests of injured plaintiffs and the

health care industry. Id.

Statutes of repose eliminate an avenue of redress for injured litigants based on

policy considerations. 1000 Va. Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 574-75,

146 P.3d 423 (2006); Josephine Herring Hicks, Note, The Constitutionality of Statutes of

Repose: Federalism Reigns, 38 VAND. L. REV. 627, 632 (1985). Among other things,

statutes of repose are intended to prevent plaintiffs from bringing stale or frivolous claims

against defendants when evidence may have been lost or witnesses are no longer

available. See 1519-1525 Lakeview Blvd. Condo. Ass’n v. Apt. Sales Corp., 144 Wn.2d

570, 578, 29 P.3d 1249 (2001) (recognizing the purposes underlying the construction

statute of repose); see also Hicks, supra, at 632 (“As time passes, records are lost,

memories fade, technology advances, and intervening circumstances arise, creating

problems for a defendant attempting to present a proper defense.”). Designed to avoid

stale claims, statutes of repose will capture only a nominal amount of such claims. See,

e.g., LAWS OF 2006, ch. 8, § 301 (eight-year statute of repose will protect “against claims,

however few, that are stale” or “based on untrustworthy evidence”).

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No. 101300-1

The legislature was aware of these considerations when reenacting the statute of

repose. Though RCW 4.16.350(3) would affect only a small number of stale claims,

requiring defendants to answer even one is a substantial wrong. Id. As DeYoung noted,

the preceding “repose provision affecting so few claims” could not have a meaningful

impact on the medical malpractice industry. 136 Wn.2d at 148-49. The legislature

responded that though the current repose statute “alone may not solve” a malpractice

insurance crisis, to the extent the statute “has an effect” on the malpractice industry, “that

effect will tend to reduce rather than increase the cost of malpractice insurance.” LAWS

OF 2006, ch. 8, § 301 (emphasis added). Finally, the legislature balanced the interests of

injured plaintiffs against those of the health care industry by finding an eight-year period

to be reasonable. Id.

In my view, it is one thing for courts to reject legislation that required speculation

as to reasonable grounds—as we did in DeYoung. It is another thing to reject the

legislature’s articulated rationale, enacted explicitly to answer this court’s stated concern,

as unreasonable. Indeed, DeYoung acknowledged that the prior statute of repose could

have legitimate purposes, such as responding to the insurance crisis and barring stale

claims. See majority at 19-20. As discussed above, the legislature took our advice.

Yet the majority still finds the stated rationales wanting, primarily because

lawmakers failed to factually connect those rationales to the statute. See id. at 21-25.

The majority relies on Schroeder for this factual test. Id. at 20. Schroeder stated that a

reviewing court’s scrutiny of a legislative determination is a factual one, but the decision

did not explain the contours of the test. See 179 Wn.2d at 574. Rather, Schroeder relied

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No. 101300-1

on State ex rel. Bacich v. Huse, 187 Wash. 75, 82, 59 P.2d 1101 (1936), overruled on

other grounds by Puget Sound Gillnetters Ass’n v. Moos, 92 Wn.2d 939, 603 P.2d 819

(1979), which overruled a statute allowing protections for gillnet licenses partially

because the provision did not “accomplish the purposes suggested” by the State. Id.

Bacich in turn explained that the “legislature has a wide measure of discretion” when

enacting legislation and that “its determination, when expressed in statutory enactment,

cannot be successfully attacked unless it is manifestly arbitrary, unreasonable,

inequitable, and unjust.” Id. at 80-81 (citing cases). In determining whether a reasonable

basis existed for the gillnet license, Bacich concluded it was “not predicated on any fair,

just, or natural basis of selection” but was “wholly arbitrary and capricious.” Id. at 81.

The Bacich court then explained why the statute lacked a reasonable basis. The

statute was expressly limited to persons holding gillnet licenses for 1932 or 1933. Id. at

82. This created a “peculiar state of affairs” for license holders—those immediately

engaged in gillnet fishing at the time the measure went into effect (1934) would not be

guaranteed a continued means of livelihood, while those who had been engaged in that

business in 1932 but had ceased would be entitled to resume. Id. at 82-83. If the act was

meant to protect those for whom gillnetting was the sole means of their livelihood, the

Bacich court held that the measure failed to accomplish that goal. Id. at 83. If

conservation was the goal, it was not promoted by arbitrarily selecting a particular class

of persons and bestowing a special privilege on them but denying the same privilege to

others. Id. at 84.

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No. 101300-1

Schroeder’s factual test must be informed by the precedent on which it was built.

Bacich considered whether a statute was reasonable and just or arbitrary and inequitable

in light of the State’s argument. Id. at 80-81. Schroeder, building on Bacich, similarly

reviewed a legislative pronouncement against the State’s argument and concluded there

was no factual support for that pronouncement. 179 Wn.2d at 574. Both cases reviewed

the rationales underlying a legislative measure and considered whether the measure

advanced the stated goals. The cases did not, however, second-guess those goals.

Despite its protestations, the majority in this case subjects RCW 4.16.350(3) and

the legislature’s policies underlying it to “‘courtroom fact-finding.’” Majority at 21

(quoting DeYoung, 136 Wn.2d at 147) (internal quotation marks omitted). The majority

second-guesses the legislature’s policies, contrary to Schroeder and Bacich. I disagree.

In my view, the stated rationales for the eight-year statute of repose comport with both

cases.

As previously stated, RCW 4.16.350’s first rationale was “to the extent that the

eight-year statute of repose has an effect on medical malpractice insurance, that effect

will tend to reduce rather than increase the cost of malpractice insurance.” LAWS OF

2006, ch. 8, § 301. The majority dismisses this rationale because lawmakers failed to

state that the statute would “in fact” lower the cost of malpractice insurance. Majority at

21. But this reasoning substitutes the majority’s desired level of fact-finding for that of

the legislature. In essence, lawmakers recognized that if the statute has an effect on

malpractice insurance, RCW 4.16.350 would tend to lower the cost. This may be

5
No. 101300-1

legislative hedging, but it is not unconstitutional hedging. Nor has there been any

argument that the finding is false.

Second, the legislature found the statute of repose would protect against stale

claims, however few, because compelling a defendant to answer even one such claim is

“a substantial wrong.” LAWS OF 2006, ch. 8, § 301. This finding was plainly taken from

DeYoung, where the State defended the earlier statute of repose “under another

conceivable set of facts”—barring stale claims that are more difficult to establish because

evidence may be lost or gone. 136 Wn.2d at 149-50. DeYoung noted that compelling a

defendant to answer a stale claim is a substantial wrong and setting an outer limit for the

discovery rule is an appropriate aim. Id. at 150 (citing Ruth v. Dight, 75 Wn.2d 660, 664-

66, 453 P.2d 631 (1969)). Although the goal was “legitimate,” DeYoung found the small

number of claims subject to the repose provision “too attenuated to that goal.” Id.

Unlike DeYoung, we are not considering a conceivable set of facts in the present

case. When enacting RCW 4.16.350(3), the legislature adopted the judicially recognized,

legitimate, and appropriate goal of preventing defendants from answering even one stale

claim. See LAWS OF 2006, ch. 8, § 301; DeYoung, 136 Wn.2d at 150. There is no

suggestion that this goal is false, unjust, or arbitrary. The statute of repose accomplishes

the goal of preventing a defendant from answering even the smallest number of stale

claims by precluding malpractice suits that fall outside the eight-year time period.

The majority leans on Schroeder’s dismissal of similar language in a different

statute, which eliminated tolling of a statute of limitations for minors bringing medical

malpractice suits. Majority at 22. Part of the Schroeder court’s reasoning was that the

6
No. 101300-1

limitations statute did not address “‘stale claims generally’” because it applied only to

malpractice claims for minors. Id. at 22 (quoting Schroeder, 179 Wn.2d at 576). Thus,

the court concluded, a stale claim was not a substantial wrong when brought by a plaintiff

who could not sue for any other reason than minority. Id. The current statute of repose,

however, does not concern minors. It concerns medical malpractice claims generally.

Thus, Schroeder does not “necessarily inform[] our analysis” here. Id.

The majority builds a deceptively simple and unsupported bridge from our

privileges and immunities precedent to the current case. It takes the factual test explored

in DeYoung and Schroeder and expands it, requiring not just articulated legislative

findings but putting those findings under a judicial fact-finding microscope. Schroeder

and its underpinning rationale do not and, in my view, cannot require such scrutiny.

Here, under the majority decision, lawmakers will no doubt ask: What findings will pass

reasonable ground muster—when is enough enough? Trial judges will be left to wonder

what might be the limiting principle for determining when a legislative finding is not

supported in fact by reasonable grounds. The majority offers none.

The history of RCW 4.16.350 illustrates how our legislative and judicial branches

of government cooperate with each other and the boundaries of those branches. DeYoung

explained why the legislature’s policies for the previous statute of repose were

insufficient under article I, section 12. Lawmakers listened and answered those

deficiencies when reenacting the current eight-year statute of repose. Without a limiting

principle, the conclusion the legislature is left to reach is only that the court disagrees

with a legislative decision. This undermines the legislature’s confidence in making

7
No. 101300-1

policy decisions that courts will uphold, absent violation of the law or constitution. Hall

v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 504-06, 198 P.3d 1021 (2009)

(recognizing it is the judicial branch’s function to interpret the law and the legislature’s

role to set policy and enact law). It also risks violating the separation of powers, with the

court stepping over the line. Village of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252, 268 n.18, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1997) (“[J]udicial inquiries into

legislative or executive motivation represent a substantial intrusion into the workings of

other branches of government.”); Carrick v. Locke, 125 Wn.2d 129, 135, 882 P.2d 173

(1994) (an action violates the separation of powers doctrine when the activity of one

branch invades the prerogative of another).

I would answer no to the first certified question. RCW 4.16.350(3)’s eight-year

statute of repose does implicate an immunity but is supported by reasonable grounds.

Therefore, the statute does not violate article I, section 12 of the Washington

Constitution.

With these considerations in mind, I respectfully concur in part and dissent in part.

______________________________________

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8