# FILE IN CLERKS OFFICE IUPREMS COURT, STATE OFWAlliiMCI1CM DATE

### JAN 1 6 2014

# ~~9·

IN THE SUPREME COURT OF THE STATE OF WASHINGTON
JARYD SCHROEDER, Appellant,

v. 

### STEVEN WEIGHALL, M.D., and COLUMBIABASIN IMAGING, P.C., a Washington corporation, Respondents, and KADLEC REGIONAL MEDICAL CENTER, Defendant. NO. 87207-4


### ENBANC
Filed 

### JAN 1 6 2014

GORDON McCLOUD, }.-Petitioner Jaryd Schroeder challenges the· constitutionality of RCW 4. 16. 190(2), 

### which eliminates tolling of the statute of limitations for minors in the context ofmedical malpractice claims. We hold that RCW 4.16.190(2)

### violates article I, section 12 

### oftheWashington State Constitution,Schroeder v. Weighall, MD., etal. No. 87207-4

and we therefore reverse the trial court's summary judgment order dismissing Schroeder's medical malpractice action. FACTS On May 22, 2001, Schroeder sought treatment from the respondents, Dr. Steven Weighall and ColumbiaBasinImaging. Schroederwas nine years old atthe time and suffered from headaches, nausea, dizziness, weakness in his legs, and double vision. He underwent an MRI (magnetic resonance imaging), which Weighall reviewed and found to be normal. Schroeder's symptoms persisted. On either November 9 or 19, 2009, 1 when he was 17, Schroeder underwent another MRI. This time the radiologist who reviewed the image found an Arnold Chiari Type I Malformation, a condition in which brain tissue protrudes into the spinal canal. The radiologist also reviewed the 2001 MRI and concluded that the conditionhad beenpresentto the same extent at thattime. On January 13, 2011, the day before his 19th birthday, Schroeder filed a medical malpractice action against Weighall, Columbia Basin Imaging, PC, and a third party subsequently dismissed by stipulation. Weighall asserted thatthe action

1The record contains conflicting information as to the date ofthe second MRI, but the difference is irrelevantto the questions presented here.
2Schroeder v. Weighall, MD., etal. No. 87207-4

was barredbythe statute oflimitations codified at RCW4.16.350 and subjectto the minority tolling exemption codified at RCW 4.16.190(2).2 RCW 4.16.350 provides that a lawsuit alleging medical malpractice must be filed within three years ofthe "act or omission" giving rise to the claim or one year after the patient "discovered or reasonably should have discovered" that the injury
was caused by the act or omission in question. The statute also imputes a parent's
or guardian's knowledge to the injured minor. RCW 4.16.350. RCW 4.16.190(1) provides that the statute oflimitations applicable to any legal action shall be tolled during a plaintiffs minority, incompetency, or incarceration, but RCW 4.16.190(2) eliminates tolling for minors in medical malpractice actions. Schroeder and his mother discovered Weighall's alleged om1sswn m November 2009. On that date, Schroeder was still a minor. If not for RCW 4.16.190(2), the one-year statute oflimitations applicable to his claim would have tolled until his 18thbirthday onJanuary 14, 2010. In reality, the combined effect of

2 Weighall also argued that the action was barred by RCW 4.16.350(3), the eightyear statute ofrepose for medical malpractice actions, butthe parties subsequently agreed to stay the proceedings pending this court's decision in Unruh v. Cacchiotti, 172 Wn.2d 98, 257 P.3d 631 (2011). In that decision, we held that RCW 4.16.350(3) applied only prospectively. Unruh, 172 Wn.2d at 110-11. When Weighall read Schroeder's first MRI in 2001, RCW 4.16.350 was not in effect, having been ruled unconstitutional by this court inDeYoungv. ProvidenceMedical Center, 136 Wn.2d 136, 141,960P.2d919 (1998). The legislature reenacted the statute in 2006, but under Unruh it did not begin to run for Schroeder until 2006 and thus did not barhis action in January 2011. 3Schroeder v. Weighall, MD., etal. No. 87207-4



### RCW 4.16.350 and .190(2) placed Schroeder's January 13, 2011 filing date about two months outsidethe statute oflimitations. Onthatbasis, thetrial court dismissed his action. 3 

### Schroeder appealed the dismissal directly to this court, arguing that RCW 4.16.190(2) violated article I, section 10 and article I, section 12 ofthe Washington State Constitution. ANALYSIS Standardof Review We review the constitutionality of a statute de novo. Kitsap County v. Mattress Outlet, 153 Wn.2d 506, 509, 104 P.3d 1280 (2005) (citingIno Ino, Inc. v. City ofBellevue, 132 Wn.2d 103, 114, 937 P.2d 154, 943 P.2d 1358 (1997)). Because we conclude thatRCW 4.16.190(2) violates article I, section 12, we do not address Schroeder's article I, section 10 challenge. Article

### L Section 12 Article I, section 12 ofthe Washington Constitution provides that "[n]o law shall be passed granting to any citizen, class ofcitizens, or corporation other than

3IfRCW4.16.190(2) hadnot applied,the one-year statute oflimitationswouldhave tolled until Schroeder's 18th birthday. Had this occurred, Schroeder's filing date would have fallenjustwithin the one-year statute oflimitations applicable to claims discovered afterthe typical three-year statute has run. RCW 4.16.350(3). 4Schroeder v. Weighall, MD., etal. No. 87207-4
municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." As we have noted in several recent cases, this court has construed article I, section 12 as "substantially similar" to the federal equalprotection clause for many, manyyears. 

### Seeleyv. State, 132 Wn.2d776, 788, 940 P.2d 604 (1997) (collecting cases). In 

### Grant County Fire Protection District No.5v. City of MosesLake, 145 Wn.2d702,735,42P.3d 394 (2002) 

### (Grant County I), 

### rev 'd inpart by Grant County Fire Protection DistrictNo. 5 v. City of Moses Lake, 150 Wn.2d 791, 812, 83 P.3d419 (2004) 

### (Grant County II), however, we also recognized that article I, section 12 differed from and was more protective thanthe federal equal protection clause and required a very different .analysis in certain situations. The 

### Grant County cases acknowledged our state constitution'sparticular
concernwiththe "unduepolitical influence" exercisedbyaprivilegedfew anddrew
on early decisions addressing that concern through the reasonable ground analysis. 

### Grant County II, 150 Wn.2d at 805-11.4

4These early decisions include Sherman Clay & Co. v. Brown, 131 Wash. 679, 680- 81, 231 P. 166 (1924) (invalidating ordinance that required sellers ofsecondhand goods to keep them for 10 days priorto sale but exempted sellers of"'stoves, furniture, orthe total contents ofanyroom orhouseboughtonthepremiseswhere such goods have beeninuse'" (quoting Seattle Ordinance45727)); State v. W. W. Robinson Co., 84 Wash. 246, 146P. 628 (1915) (invalidating statute that exempted cereal and flouring mills from act imposing onerous conditions on other similarly situatedpersons and corporations); City of Seattle v. Dencker, 58 Wash. 501, 108 P. 1086 (1910) (invalidating ordinance that imposed tax on sale ofgoods by automatic devices but not on sale ofgoods by hand); City of Spokane v. 5Schroeder v. Weighall, MD., etal. No. 87207-4

1. RCW4.16.190(2) Grants an "Immunity" under Article I, Section 12 In 

### Grant County I, we held that article I, section 12, unlike the federal equal protection clause, applies to special interest legislation-laws that confer a benefit
on a privileged or influential minority. 

### Grant County I, 145 Wn.2d at 731. In the second 

### Grant County case, we modified that holding, recognizing that that independent "privileges" analysis applies only where a law implicates a "privilege"
or "immunity" as defined in our early cases distinguishing the "'fundamental rights"' ofstate citizenship. 

### Grant County II, 150 Wn.2d at 812-13 (quoting 

### State
v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902)). After 

### Grant County II, we have subjected legislation to a two-part testunder this "privileges" prong of article I, section 12 analysis. First, we ask whether a challenged law grants a "privilege" or "immunity" for purposes of our state constitution. 

### Grant County II, 150 Wn.2d at 812. Ifthe answer is yes, then we ask whether there is a "reasonable ground" for granting that privilege or immunity. 

### Grant I, 145 Wn.2d at 731.

Macho, 51 Wash. 322, 98 P. 755 (1909) (invalidating city ordinancethat imposed criminal liability on employment agencies but not on other similarly situated business); and In re Habeas Corpusfor Camp, 38 Wash. 393, 80 P. 547 (1905) (invalidating ordinance that prohibited the peddling ofproduce within city limits but exempted farmers who grew the produce themselves). 6Schroeder v. Weighall, MD., etal. No. 87207-4



### Not every benefit constitutes a "privilege" or "immunity" for purposes ofthe independent article I, section 12 analysis. Rather, the benefits triggering that analysis are only those implicating "fundamental rights
. . . of
. . . state . . . citizenship." Vance, 

### 29 Wash. at 458. The benefit that RCW 4.16.190(2) confers is limited liability-an immunity from suits pursued by certain plaintiffs. This court has long recognized that the privileges and immunities contemplated in article I, section 12 include the right to pursue commonlawcauses ofaction in court.5 

### Thus, atleastwhere acause ofaction derives from the common law, the ability to pursue it is a privilege of state citizenship triggering article I, section 12's reasonable ground analysis. A law limiting the pursuit of common law claims against certain defendants therefore grants those defendants an article I, section 12 "immunity." This court has also recognized that "[m]edical malpractice claims are fundamentally negligence claims, rooted in the common law tradition." Putman v.

5 Vance, 29 Wash. at 458 (fundamentalrights ofstate citizenship include "therights to the usual remedies to collect debts and to enforce other personal rights"); Alton V. Phillips Co. v. State, 65 Wn.2d 199,204,396P.2d 537 (1964) (lawthat "expandsthe [only one particular] plaintiffs right ofrecourse in our courts" violates article I, section 12); Cotten v. Wilson, 27 Wn.2d 314, 317-20, 178 P.2d 287 (1947) (under article I, section 12, the legislature must have a "'reasonable ground"' for increasing a personal injury plaintiffs burden in actions against a particular class ofdefendant (quoting State ex rel. Bacich v. Huse, 187 Wash. 75, 80, 59 P.2d 1101 (1936), overruled on other grounds by PugetSound GillnettersAss 'n v. Moos, 92 Wn.2d 939, 603 P.2d 819 (1979))). 7Schroeder v. Weighall, MD., etal. No. 87207-4

Wenatchee Valley Med. Ctr., 166 Wn.2d 974, 982, 216 P.3d 374 (2009). RCW 4.16.190(2) limits the ability of certain plaintiffs-those whose injuries occurred during childhood-to bring medical malpractice claims. It therefore grants. an immunity (and burdens a privilege) triggering the reasonable ground test under article I, section 12. 2. There Is No Reasonable Ground For Limiting Medical Malpractice Defendants' Liabilityto Patients Injured During Minority The article I, section 12 reasonable ground test is more exactingthan rational basis review. Underthe reasonable ground test a court will not hypothesize facts to justify a legislative distinction. See, e.g., City of Seattle v. Rogers, 6 Wn.2d 31, 37- 38, 106 P.2d 598 (1940) (striking down regulatory exemption despite city's argument that the exempted party constituted "a class by itself'). Rather, the court will scrutinize the legislative distinction to determine whether it infact serves the legislature's stated goal. See, e.g., State ex rel. Bacich v. Huse, 187 Wash. 75, 82, 59 P.2d 1101 (1936) (striking down provision in regulatory statute that grand parented inprotections for those holding gillnetting licenses in 1932-33, inpartbecause it did "not accomplish the purpose suggested by [the State's] argument"), overruled on othergrounds byPugetSound GillnettersAss 'n v. Moos, 92 Wn.2d 939, 603 P.2d 819 (1979)).

8Schroeder v. Weighall, MD., et al. No. 

### 87207-4

This court addressed a statute similar to RCW 4.16.190(2) in DeYoung v. Providence Medical Center, 

### 136 Wn.2d 136, 141, 960 P.2d 919 (1998), where we held that an eight-year statute ofrepose applicable to medical malpractice claims violated article I, section 12. Inthepre-Grant County 

### cases we appliedrationalbasis review and found that the statute of repose could not survive even that most deferential form of scrutiny. DeYoung, 

### 136 Wn.2d at 149. While we recognized that addressing escalating insurance rates was a legitimate legislative goal, we also found clear evidence in the legislative record that the challenged statute would not advance that goal in any appreciable way. Id. at 149-50. The evidence in question was a report by the National Association of Insurance Commissioners finding that less than one percent ofall insurance claims nationwideweremade by adultspursuantto incidents ofmalpractice occurringmore than eight years prior. Id. at 149. In light ofthat evidence we concluded that the "relationship between the goal ofalleviating any medical insurance crisis and the class of persons affected by the eight-year statute of repose is too attenuated to survive rational basis scrutiny." Id. Under DeYoung, 

### the relationship ofthe class ofpersons affected by RCW 4.16.190(2) to the goal ofreducing insurance costs mustbe deemed "too attenuated to survive [even] rational basis scrutiny" unless RCW 4.16.190(2) will have a 9Schroeder v. Weighall, MD., etal. No. 87207-4
significantly greater effect on insurance premiums than the eight-year statute of repose did. Id. The respondents in this case offerno evidence for this greatereffect, butthey speculate that it mighthave motivated the legislature to enact the minority tolling statute: "[T]he legislature, mindful ofDeYoung, [mighthave] believedthat.

. . medical malpractice claims of nondisabled minors are numerous enough that eliminating tolling as to their claims would materially affect [medical malpractice insurance] rates." Br. ofResp'ts at 43 n.29. Such speculation might suffice under rational basis review. DeYoung, 136 Wn.2d at 148 ("the rational basis standard may be satisfied where the 'legislative choice
... [is] based on rational speculation unsupported by evidence or empirical data"' (quoting Fed. Commc 'ns Comm 'n v. Beach Commc 'ns, Inc., 508 U.S. 307, 315,113 S.Ct.2096, 125L.Ed.2d211 (1993))). Butourreasonablegroundanalysis does notpermitus to hypothesize facts. Huse, 187 Wash. at 82; Rogers, 6 Wn.2d at 37. Ifwe are to uphold RCW 4.16.190(2), that law must bejustified in fact as well
as theory. Neither the respondents nor the legislative record provides any factual support for the theory that RCW 4.16.190(2) will reduce insurance premiums. In addition to their insurance premium theory, the respondents advance anotherargumentonbehalfofthe minoritytolling statute: thatitservesthe important purpose oflimiting stale medical malpractice claims. The respondents assert that
10Schroeder v. Weighall, MD., etal. No. 87207-4

stale claims are particularly burdensome in the medical malpractice context, where defendants are subject to rapidly changing standards ofcare. They note (correctly) thatthe legislaturehas expressedits interest, inthis context, inpreventing "even one defendant [from] answer[ing] a stale claim." Br. of Resp'ts at 39 n.26 (quoting LAWS OF 2006, ch. 8, § 301). 6 We recognize-as we did in 

### DeYoung-that "compelling a defendant to
answer a stale claim is a substantial wrong, []and setting an outer limit to operation ofthe discovery rule is [thus] an appropriate aim." 

### DeYoung, 136 Wn.2d at 150 (citing 

### Ruth v. Dight, 75 Wn.2d 660, 665, 453 P.2d 631 (1969)). But RCW 4.16.190(2) is not addressedto stale claims generally, it is (atbest) addressedto stale claims arising from medical malpractice injuries to minors. Thus, the principle for whichthe statute really stands is notthat "compelling even one defendantto answer
a stale claim is a substantial wrong." LAWS OF 2006, ch. 8, § 301. Rather, it is that
a stale claim is a substantial wrong 

### when it 

### arisesfrom a medical incident that occurredwhen theplaintiff was under 18. According to this legislative scheme, a stale claim is 

### not a substantial wrong-at least, not substantial enough to warrant

6 The legislature also included this statement ofpurpose in its 2006 amendment to RCW4.16.350, which reinstatedthe eight-year statute ofrepose struck down inDeYoung. 11Schroeder v. Weighall, MD., etal. No. 87207-4
preventative legislation-when it is broughtby a plaintiffwho was unable to sue at thetime ofinjury for any reason otherthan minority. Therespondents attemptto explainthis distinctionby arguingthat "parents or guardians may, and often do, sue on aninjured child'sbehalf." Br. ofResp'ts at 19. According to the respondents, an injured minor's parent or guardian has a "vested interest in recover[y]," which prevents RCW 4.16.190(2) from having any significantpreclusiveeffectonminors' medicalmalpracticeclaims. Wash. Supreme Court oral argument, Schroeder v. Weighall, No. 87207-4 (May 16, 2013), at 39 min., 28 sec.,audio recordingbyTVW,Washington State'sPublicAffairsNetwork, available athttp://www.tvw.org. This explanation, ofcourse, directly conflicts with the respondents' assertion that the minority tolling statute will eliminate so many medical malpractice claims that insurance rates will drop as a result. Ifthe statute is to bejustified onthe basis that it will greatly reduce medical malpractice claims, it cannot also bejustified on the ground that it will not prevent very many plaintiffs from having their day in court. Ifit is to bejustified onthe basis that it is a substantial wrongto permiteven
one stale medical malpractice claim to proceed, then there can be no rational explanation for the legislature's failure to eliminate tolling for other incompetent plaintiffs.
12Schroeder v. Weighall, MD., etal. No. 87207-4



### 3. RCW 4.16.190(2) Also Raises Concerns Underlying Our State Equal Protection Cases RCW 4.16.190(2) also raises concerns other than special interest favoritism. While the statute clearly confers a benefit on one group ofcitizens, it also has the potential to burden a particularly vulnerable minority. Our Grant County 

### analysis emphasized article I, section 12's concernwith special interest legislation, butit did not overrule our long line ofarticle I, section 12 cases addressing laws that burden vulnerable groups. Inthose cases-ourstate equal protection cases based on article I, section 12-wehave characterized article I, section 12 analysis as "substantially similar" to federal equal protection analysis. Seeley, 

### 132 Wn.2d at 787 n.7. Those state equal protection cases therefore hold that article I, section 12 requiresus to apply differentlevels ofscrutiny depending on whetherthe challenged lawburdened a suspect class, afundamental right, an importantright or semisuspect class, or none ofthe above. E.g., State v. Hirschfelder, 

### 170 Wn.2d 536, 550, 242 P.3d 876 (2010). Those cases clearly establish that we apply intermediate scrutiny to laws that burden both "'an important right and a semi-suspect class not accountable for its status."' 

### Id. (internal quotation marks omitted) (quoting 

### Am. Legion PostNo. 149 v. Dep'tof Health, 

### 164 Wn.2d 570, 609, 192 P.3d 306 (2008) (quoting Madison v. State, 

### 161 Wn.2d 85, 103, 163 P.3d 757 (2007))); see also

13Schroeder v. Weighall, MD., etal. No. 87207-4


### Griffin v. Eller, 130 Wn.2d 58, 65, 922 P.2d 788 (1996) (citing

### In re Runyan, 121 Wn.2d 432, 448, 853 P.2d 424 (1993)); 

### Westerman v. Cary, 125 Wn.2d 277, 294, 892 P.2d 1067 (1994); 

### State v. Schaaf, 109 Wn.2d 1, 17-19, 743 P.2d 240 (1987). RCW 4.16.190(2) burdens an important right-a "privilege" for purposes of the article I, section 12 reasonable ground analysis. 

### See supra, pp. 6-8. We have recognized the significance of this interest in other contexts as well,7 and it is undeniably "important" for purposes ofour state equalprotection analysis. Notably, RCW 4.16.190(2) also has the potential to burden a particularly vulnerable populationnot accountable for its status. In

### Schaaf, we declinedto hold that children were a semisuspect class, but we did so because we concluded that childreningeneralwere more sociallyintegrated-andthusbetterrepresentedinthe democraticprocess-thanthe "'discrete and insularminorities"' considered suspect classes for purposes offederal equal protection analysis. 

### Schaaf, 109 Wn.2d at 17- 19 (quoting 

### City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432, 472 n.24, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (Marshall, J., concurring inpart and dissenting

7 E.g., Unruh, 172 Wn.2d at 111 n.9 (noting that challenge to RCW 4.16.190(2) raises '"compelling"' state constitutional questions about the right ofaccess to the courts (quoting Gilbert v. SacredHeartMed. Ctr., 127 Wn.2d 370, 378, 900 P.2d 552 (1995))); Hunter v. N. Mason High Sch., 85 Wn.2d 810, 814, 539 P.2d 845 (1975) ("right to be indemnified for personal injuries is a substantial property right,
. . . in many cases fundamental to the injured persons' physical well-being and ability to continue to live a decent life"). 14Schroeder v. Weighall, MD., etal. No. 87207-4



### in part)). While RCW 4.16.190(2) applies by its terms to minors generally, it is evident from the arguments presented in this case that the law places a disproportionate burden on the child whose parent or guardian lacks the knowledge
or incentive to pursue a claim on his or her behalf. Courts in numerous other jurisdictions have recognized this problem, noting that statutes analogous to RCW 4.16.190(2) have the greatest impact on children in the foster care system, children whose parents are themselves minors, and children whose parents are simply unconcerned. See Piselli v. 75th St. Med., 371 Md. 188, 215-19, 808 A.2d 508 (2002) (collectin·g cases). It 

### goes without saying that these groups ofchildren are not accountable for their status. Thus, even ifminors generally do not constitute a semisuspect class under article I, section 12, the group ofminors most likely to be adversely affectedby RCW 4.16.190(2) may well constitute the type ofdiscrete and insular minority whose interests are a central concern in our state equal protection
cases. CONCLUSION For the foregoing reasons, we find that RCW 4.16.190(2) violates article I, section 12 ofthe Washington Constitution. We therefore reverse the trial court's order dismissing Schroeder's claim.

15Schroeder v. Weighall, MD., etal. No. 87207-4

WE CONCUR:

16

# L~5~;2**{!~[~ }~**  (/Schroeder v. Weighall, MD., etal., No. 87207-4 Dissentby J.M. Johnson, J.



### No. 87207-4 J.M. JOHNSON, J. (dissenting)-Statutes oflimitation are critical to the effective functioning ofour civil litigation system. Such statutes provide finality in situations where memories are likely to have faded, records have been misplaced, and it is onerous to prove the relative standard ofcare at the time ofthe incident. Statutes of limitation further encourage claimants to bring actions in atimely manner while evidence is still fresh. Althoughtort claims are subjectbythe legislatureto various statutes of limitation, RCW 4.16.190 provides a tolling privilege to minors with nonmedical malpractice claims and incapacitated adults. This type of privilege is permissible where, as here, there is a reasonable ground for granting it. 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); 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). -1-Schroeder v. Weighall, MD., etal., No. 87207-4 Dissentby J.M. Johnson, J.



### In crafting the tolling exception in RCW 4.16.190(2), the legislature properly consideredthe differences between minors and adults, as well as the special circumstances facing medical malpractice defendants. RCW 4.16.190(2), therefore, comports with article I, section 12 ofthe Washington Constitution. Furthermore, the statute is rationally related to the legitimate state objective of decreasing medical malpractice costs and reducing the number of stale claims. Consequently, the statute comports with the FourteenthAmendmentto the United States Constitution. Theplainlanguage ofRCW 4.16.190(2) and RCW 4.16.350 operate to bar Jaryd Schroeder's claim. Because I would affirm summaryjudgment, I dissent. ANALYSIS 

### Statutes of limitations in general operate to immunize alleged tortfeasors from lawsuits once claims become stale. Many courts, including this one, have recognized that the legislature has a legitimate interest in protectingpotential defendants against stale claims. See, e.g., Stenbergv. Pac. Power & Light Co., 

### 104 Wi1.2d 710, 714, 709 P.2d 793 (1985) (noting that statutes oflimitation have the valid goal ofprotecting against stale claims); Ruth v. Dight, 

### 75 Wn.2d 660, 664-66, 453 P.2d 631 (1969) (recognizing for various reasons that "compelling one to answer stale claims in the courts is in -2-Schroeder v. Weighall, MD., et al., No. 87207-4 Dissentby J.M. Johnson, J.
itselfa substantial wrong"); Deen v. Egleston, 597 F.3d 1223, 1233 (11th Cir. 2010) (observing that "[d]efending law suits is hard; defending malpractice suits is harder; and defending old malpractice suits is harder still"); Owens v. White, 380F.2d310,315 (9thCir. 1967) (acknowledgingthatjusticerequires that physicians not be faced with stale claims because the passage oftime eliminates their ability to present a meritorious defense). RCW 4.16.190 has historically tolled statutes of limitation during a period of incompetency, which covers those under the age of 18. RCW 4.16.190 and RCW 4.16.350 were amended in 2006 as part ofa complicated legislative compromise reached by our legislators, then-Governor Gregoire, the trial lawyers, physicians, hospital administrators, and government staff. Waples v. Yi, 169 Wn.2d 152, 168, 234 P.3d 187 (2010) (J.M. Johnson, J., dissenting). The 2006 amendment package was part ofa legislative effort to manage the problems createdbywhatthe legislature deemed to be excessive medical malpractice and other litigation. Id. The legislature considered the 2006 amendments to address '"one ofthe most important issues facing the citizens ofWashington State."' Id. (quoting LAWS OF 2006, ch. 8, § 1). As a result, tolling no longer applies to minors with medical malpractice claims pursuantto RCW 4.16.190(2). -3-Schroeder v. Weighall, MD., eta!., No. 87207-4 DissentbyJ.M. Johnson, J.

A. RCW 4.16.190(2) Comports With Article I, Section 12 of the Washington State Constitution Inthe article I, section 12privileges andimmunities context, legislation is analyzed under a two-part test: (1) whether the challenged law grants a privilege or immunity under our state constitution, 

### Grant County II, 150 Wn.2dat 812, and, (2) ifyes, whetherthereis areasonable groundfor granting that privilege or immunity, 

### Grant County I, 145 Wn.2d at 731. In this case, the majority is correctthatRCW 4.16.190 grants a privilege or immunity. It is, however, based onreasonable ground. Consequently, the statute comports with article I, section 12. I agree .with the majority that RCW 4.16.190 grants a privilege or immunitybyaffecting certainplaintiffs' abilityto bring a cause ofaction after his orherincapacityisterminated. Majorityat7;

### Madison v. 

### State, 161 Wn.2d 85, 119-21, 163 P.3d757 (2007) (J.M., Johnson, J., concurring) (setting forth the rights that the term "privileges and immunities" has historically encompassed,includingtheright "toinstitute andmaintainactions ofanykind inthe courts ofthe state" (quoting 

### Corfieldv. 

### Coryell, 6 F. Cas. 546, 551-52 (C.C.E.D. Pa.1823) (No. 3,230))). Although I conclude that RCW 4.16.190 grants a privilege, I firmly disagree with the majority's assertion that there is
no reasonable groundfor the lines drawnbythe statute. 

### See majority at 8-12. -4-Schroeder v. Weighall, MD., et al., No. 87207-4 Dissentby J.M. Johnson, J.

In performing a privileges and immunities analysis, we must be extremely cautious to ensure that the classes are framed correctly. Here, it is possible to define the classes in two different ways. The majority adopts Schroeder's untenable framing of the classes--that RCW 4.16.190 grants healthcare providers an immunity from defending against stale claims originating from injuries to minors. This framing ofthe classes defies logic and does violence to article I, section 12 privileges and immunities. By framing the classes in such a way, the majority overlooks the plain fact that statutes oflimitation are the rule and tolling provisions are the exception. RCW 4.16.190 does not create an impermissible immunity from lawsuits. Instead, it establishes a permissible privilege oftolling for minors with nonmedical malpractice tort claims and incapacitated adults. Framing the classes in this way is more in line with the plain language ofthe statute, which is phrased interms ofgranting tollingto potential plaintiffs ratherthan exemptinghealthcare providers from lawsuits. The grounds for granting a tolling privilege to minors with nonmedicalmalpractice tort claims andincapacitatedadults are reasonable The legislativepurposeinpassingRCW4.16.190(2) andthe other2006 amendments was two-fold: (1) to assist in solving a crisis in the medical -5-Schroeder v. Weighall, MD., etal., No. 87207-4 Dissent byJ.M. Johnson, J.

insurance industry and (2) to prevent the substantial wrong ofmaking even
one defendant have to answer a stale claim. LAWS OF 2006, ch. 8, §§ 301- 302. Itgoes without sayingthatthe longerthe gap betweenthe act, omission,
or injury and the filing ofa lawsuit, the more likely it is that memories will fade, records will be misplaced, and witnesses will go missing. Stale claims increase costs associated with litigation-costs that are ultimately passed on to patients. Thisjustification rests on common sense and the economics of litigation rather than hypothetical facts beyond the scope ofthe reasonable groundtest. Eliminating the stale claims ofthose exempted from tolling by RCW 4.16.190(2) should reduce the total number of stale claims defendants must face. Itis importantto recognize, however, that eliminating all categories of tollingwouldhavethis same effect. Consequently,theremustbeareasonable ground for this seemingly incremental approach. The immediate and obvious distinction between incapacitated minors and incapacitated adults is that minors are much more likely than adults to have someone supervisingthemwhohas legal authorityto act ontheirbehalf. The legislature can reasonably assume that minors' interests are being protectedby aparentorguardian. SeeHarlfingerv. Martin, 435 Mass. 38,47 -6-Schroeder v. Weighall, MD., etal., No. 87207-4 DissentbyJ.M. Johnson, J.


### n.14, 754 N.E.2d 63 (2001) (upholding a statute eliminating tolling forminors and finding that the legislature may reasonably assume that the interests of minors will be protected by their guardians). Parents and guardians are endowed with the power under our state laws to make a myriad ofdecisions
on behalfoftheir children. Moreover, there is avalid distinctionbetweenmedical malpractice and other tort claims. In revising the tolling provision, the legislature simply accounted for scientific and technological realities present in medical malpractice cases. Massachusetts' highest courthas wisely noted that [t]he problem ofdefending stale medical malpractice claims is further exacerbated by the fact that the standard ofcare is itself subject to rapid and dramatic change, fueled by advances in medical science andtechnology. From a defendant'sperspective, demonstrating the standard ofcare ofmany years past, and that the defendant's treatment ofthe plaintiffdid not deviate from it, can be very difficult when, by modern standards, the same care wouldrepresent a major deviation. Harl.finger, 

### 435 Mass. at 43 n.8 (rejecting an equal protection challenge to a statute eliminating tolling for minors). As a consequence, the harm done by requiring a healthcare provider to defend against stale claims is often more profoundthan for other categories oftortfeasors. The distinctions underlying RCW 4.16.190(2) are, without a doubt, real and substantial.

-7-Schroeder v. Weighall, MD., et al., No. 87207-4 DissentbyJ.M. Johnson, J. Ultimately, RCW 4.16.190(2) represents the legislature's pursuit ofa specific policy agenda. The legislature is the governmental body responsible for identifying policy goals and implementing them. Unlike this court, the legislature possesses mechanisms for gathering public input such as hearings and committees. The United States Supreme Courthas long recognized "that judicial inquiries into legislative or executive motivation represent a substantialintrusionintotheworkings ofotherbranches ofgovernment." Vill. of ArlingtonHeights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 n.18, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977). We should accordingly refrain from second-guessing the legislative motivation behind RCW 4.16.190(2) unless
we have evidence tojustify such suspicion. We do not. I would, therefore, hold that RCW 4.16.190(2) is constitutional under article I, section 12. B. The Majority Properly Refrains from Addressing the Freestanding Article I, Section 10 Argument The majority properly declines to address the argument that RCW 4.16.190(2) runs afoul of article I, section 10 of the Washington State Constitution, deciding the case solely on article I, section 12 grounds. See majority at 4. Although I would hold that RCW 4.16.190(2) comports with article I, section 12, I would also decline to address any freestanding article I, section 10 claim. -8-Schroeder v. Weighall, MD., etal., No. 87207-4 DissentbyJ.M. Johnson, J.


### Nowhere does Schroeder argue that article I, section 10 alone provides
a sufficient basis for invalidating RCW 4.16.190(2). Amicus curiae Washington State Association for Justice Foundation (WSAJF) alone raises the argument that article I, section 10 provides a freestanding basis to invalidate RCW 4.16.190(2). Br. ofAmicus Curiae WSAJF at 4-5. As a general rule, we will decide a case only on the basis ofthe issues argued by the parties in their briefs. RAP 12.l(a); see Salstrom 's Vehicles, Inc. v. Dep't of Motor Vehicles, 87 Wn.2d 686, 690, 555 P.2d 1361 (1976).· Consequently, we avoid basing our decisions on issues raised only by amici curiae. E.g., State v. Clarke, 156 Wn.2d 880, 894, 134 P.3d 188 (2006); Rabon v. City ofSeattle, 135 Wn.2d 278, 291 n.4, 957 P.2d 621 (1998); Schuster v. Schuster, 90 Wn.2d 626, 629, 585 P.2d 130 (1978). For this reason, Iwould declineto decidethe case onthe basis ofa freestanding article I, section 10 claim. C. RCW 4.16.190(2) Comports With the Equal Protection Clause ofthe FourteenthAmendmentto the United States Constitution SchroedercontendsthatRCW4.16.190(2)violatesthe equalprotection clause ofthe Fourteenth Amendment. The federal equal protection clause requires that similarly situated persons receive equal treatment. State v. Harner, 153 Wn.2d 228, 235, 103 P.3d 738 (2004). The majority also raises -9-Schroeder v. Weighall, MD., et al., No. 87207-4 Dissentby J.M. Johnson, J.



### concerns under our state equal protection cases. Majority at 13-15. Our state equal protection cases have characterized our state analysis as "substantially similar" to federal equal protection analysis. Seeley v. State, 132 Wn.2d 776, 787 n.7, 940 P.2d 604 (1997). Inanalyzing state andfederal equalprotectionchallenges,we apply one ofthree levels of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis. Harris v. Charles, 171 Wn.2d 455, 462, 256 P.3d 328 (2011) (quoting Harner, 153 Wn.2d at 235-36). Here, we must apply rational basis scrutiny. Minors are not a suspect class or a semisuspect class. State v. Schaaf, 109 Wn.2d 1, 19, 743 P.2d 240 (1987); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,441, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Tunstall v. Bergeson, 141 Wn.2d 201,226, 5P.3d 691 (2000) (reaffirmingthatrationalbasis applies tojuvenile claims (citing In reBoot, 130 Wn.2d 553, 572-73, 925 P.2d 964 (1996))). Schroeder concedes that rational basis must be applied. Br. ofPet'r at 30. In orderto pass rational basis scrutiny, "the legislative classification is upheld unless the classification rests on grounds wholly irrelevant to the achievement oflegitimate state objectives." Harner, 153 Wn.2d at 235-36. This test is extremely deferential to legislative determinations. Those -10-Schroeder v. Weighall, MD., et al., No. 87207-4 DissentbyJ.M. Johnson, J. attacking a classification that is reviewed under the rational basis standard
. "have the burden 'to negat[e] every conceivable basis which might support it."' Fed. Commc 'ns Comm 'n v. Beach Commc 'ns, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 124L. Ed. 2d211 (1993) (quotingLehnhausen v. LakeShore AutoParts Co., 410 U.S. 356, 364, 93 S. Ct. 1001, 35 L. Ed. 2d 351 (1973)). The legislature did not single out RCW 4.16.190(2) when stating the purposes behind its 2006 amendments. It is clear, however, from the statement ofpurpose attachedto RCW4.16.350 thatthe legislative intentwas to help reduce medical malpractice insurance rates and prevent defendants from havingto defend against stale claims. See LAws OF 2006, ch. 8, 

### § § 301- 302. To the extentthathealthcareproviders face fewer claims, itis likelythat their medical malpractice insurance premiums will decrease. The benefits of such premium decreases will be passed onto Washington state citizens. The legislature undoubtedly has broad authority and discretion over this type of social and economic policy. See Beach Commc 'ns, 508 U.S. at 313. RCW 4.16.190(2) is rationally related to legitimate state objectives. Accordingly, RCW 4.16.190(2) does not violate the equal protection clause of the FourteenthAmendmentorstate equalprotectionembodiedin article I, section 12. -11-Schroeder v. Weighall, MD., etal., No. 87207-4 DissentbyJ.M. Johnson, J.

CONCLUSION 

### When crafting RCW 4.16.190(2), the legislature properly considered the differences between minors and adults, as well as the unique circumstances surrounding medical malpractice defense. The statute passes muster under both the reasonable ground test ofarticle I, section 12, as well
as rational basis scrutiny required by the equal protection clause of the Fourteenth Amendment. The plain language ofRCW 4.16.190(2) and RCW 4.16.350 operates to bar Schroeder's claim. Accordingly, this court should affirm summaryjudgment.

-12-Schroeder v. Weighall, MD., eta!., No. 87207-4

-13-