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Originally published Sunday, September 20, 2009 at 4:00 PM

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Unfettered access to the courts

The Washington state Supreme Court correctly viewed a law requiring certificates of merit for medical malpractice lawsuits as a violation of the vital separation of state powers.

THE state Supreme Court was right to throw out a three-year-old law requiring patients to get certificates of merit from an expert before they could sue for medical malpractice.

"Requiring plaintiffs to submit evidence supporting their claims before the discovery process violates the plaintiffs' right of access to courts," wrote Justice Susan Owens in the 7-0 decision.

The justices were faced with a stark example in Kimme Putman, a Wenatchee woman who filed a lawsuit in 2007 against Wenatchee Valley Medical Center for failing to diagnose her ovarian cancer for two years. Putman argued the delay kept her from getting early treatment and diminished her chances of survival.

A lower court dismissed Putman's suit because she didn't file the certificate. That was the wrong decision. The point of the court is to determine if a case has merit, a task that ought not rely on a certificate most doctors and nurses would be reluctant to give.

The right to have access to the courts is clearly stated in Article 1 of the Washington state Constitution.

This wasn't a close call for the Supreme Court and one does wonder why the Legislature enacted the law in 2006. It was one of several changes to the medical-malpractice system, spurred by the failure a year before of two competing voter initiatives put forth by doctors and trial lawyers.

Lawmakers wanted to reduce the number of frivolous lawsuits; instead, they interfered in the judicial process.

The court rightly pushed back, calling the certificate requirement a violation of the vital separation of state powers. In other states, including Arkansas, Mississippi and Ohio, courts have thrown out these kinds of laws.

Justices are right to be protective of the public's right to seek redress through the courts. It was a done deal 200 years ago when the U.S. Supreme Court in Marbury v. Madison said: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury."

It remains a key principle today as underscored by a fine state Supreme Court ruling.

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