FILE 

IN CLERKS OFFICE 

IUPREMS COURT, STATE OF WAll iiMCI1CM 

DATE JAN 1 6 2014 

~~9· 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

JARYD SCHROEDER, 

Appellant, 

v. 

STEVEN WEIGHALL, M.D., and 

COLUMBIA BASIN 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 of medical malpractice claims. We hold that 

RCW 4.16.190(2) violates article I, section 12 ofthe Washington State Constitution, 
Schroeder v. Weighall, MD., et al. 

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 W eighall and Columbia Basin Imaging. Schroeder was nine years old at the 

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 

condition had been present to the same extent at that time. 

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. W eighall asserted that the action 

1 The record contains conflicting information as to the date of the second MRI, but 

the difference is irrelevant to the questions presented here. 

2 
Schroeder v. Weighall, MD., et al. 

No. 87207-4 

was barred by the statute of limitations codified at RCW 4.16.350 and subject to 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 of the "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 of limitations 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 W eighall' 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 of limitations applicable to his claim would have 

tolled until his 18th birthday on January 14, 201 0. In reality, the combined effect of 

2 Weighall also argued that the action was barred by RCW 4.16.350(3), the eightyear statute of repose for medical malpractice actions, but the 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. Providence Medical Center, 136 Wn.2d 136, 141,960 P.2d 919 (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 bar his action in January 2011. 

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Schroeder v. Weighall, MD., et al. 

No. 87207-4 

RCW 4.16.350 and .190(2) placed Schroeder's January 13, 2011 filing date about 

two months outside the statute of limitations. On that basis, the trial 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 of the Washington 

State Constitution. 

ANALYSIS 

Standard of 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) (citing Ino Ino, Inc. v. 

City of Bellevue, 132 Wn.2d 103, 114, 937 P.2d 154, 943 P.2d 1358 (1997)). 

Because we conclude that RCW 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 of the Washington Constitution provides that "[n]o law 

shall be passed granting to any citizen, class of citizens, or corporation other than 

3 IfRCW 4.16.190(2) had not applied, the one-year statute oflimitations would have 

tolled until Schroeder's 18th birthday. Had this occurred, Schroeder's filing date would 

have fallen just within the one-year statute of limitations applicable to claims discovered 

after the typical three-year statute has run. RCW 4.16.350(3). 

4 
Schroeder v. Weighall, MD., et al. 

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 

equal protection clause for many, many years. Seeley v. State, 132 Wn.2d 776, 788, 

940 P.2d 604 (1997) (collecting cases). In Grant County Fire Protection District 

No.5 v. City of Moses Lake, 145 Wn.2d 702,735,42 P.3d 394 (2002) (Grant County 

I), rev 'd in part by Grant County Fire Protection District No. 5 v. City of Moses 

Lake, 150 Wn.2d 791, 812, 83 P.3d 419 (2004) (Grant County II), however, we also 

recognized that article I, section 12 differed from and was more protective than the 

federal equal protection clause and required a very different .analysis in certain 

situations. The Grant County cases acknowledged our state constitution's particular 

concern with the "undue political influence" exercised by a privileged few and drew 

on early decisions addressing that concern through the reasonable ground analysis. 

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

4 These early decisions include Sherman Clay & Co. v. Brown, 131 Wash. 679, 680-

81, 231 P. 166 ( 1924) (invalidating ordinance that required sellers of secondhand goods to 

keep them for 10 days prior to sale but exempted sellers of"' stoves, furniture, or the total 

contents of any room or house bought on the premises where such goods have been in use'" 

(quoting Seattle Ordinance 45727)); State v. W. W. Robinson Co., 84 Wash. 246, 146 P. 628 

(1915) (invalidating statute that exempted cereal and flouring mills from act imposing 

onerous conditions on other similarly situated persons and corporations); City of Seattle v. 

Dencker, 58 Wash. 501, 108 P. 1086 (1910) (invalidating ordinance that imposed tax on 

sale of goods by automatic devices but not on sale of goods by hand); City of Spokane v. 

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Schroeder v. Weighall, MD., et al. 

No. 87207-4 

1. RCW 4.16.190(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"' of state 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 test under 

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 ordinance that imposed criminal 

liability on employment agencies but not on other similarly situated business); and In re 

Habeas Corpus for Camp, 38 Wash. 393, 80 P. 547 (1905) (invalidating ordinance that 

prohibited the peddling of produce within city limits but exempted farmers who grew the 

produce themselves). 

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Schroeder v. Weighall, MD., et al. 

No. 87207-4 

Not every benefit constitutes a "privilege" or "immunity" for purposes of the 

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 common law causes of action in court. 5 Thus, at least where a cause of action 

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 (fundamental rights of state citizenship include "the rights 

to the usual remedies to collect debts and to enforce other personal rights"); Alton V. 

Phillips Co. v. State, 65 Wn.2d 199,204,396 P.2d 537 (1964) (law that "expands the [only 

one particular] plaintiffs right of recourse 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 of defendant (quoting State ex rel. 

Bacich v. Huse, 187 Wash. 75, 80, 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))). 

7 
Schroeder v. Weighall, MD., et al. 

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' Liability to Patients Injured During Minority 

The article I, section 12 reasonable ground test is more exacting than rational 

basis review. Under the 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, 3 7-

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 in fact serves the 

legislature's stated goal. See, e.g., State ex rel. Bacich v. Huse, 187 Wash. 75, 82, 59 

P .2d 1101 ( 193 6) (striking down provision in regulatory statute that grand parented 

in protections for those holding gillnetting licenses in 1932-33, in part because it did 

"not accomplish the purpose suggested by [the State's] argument"), overruled on 

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

819 (1979)). 

8 
Schroeder 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 of repose applicable to medical malpractice claims 

violated article I, section 12. In the pre-Grant County cases we applied rational basis 

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 of all insurance claims 

nationwide were made by adults pursuant to incidents of malpractice occurring more 

than eight years prior. Id. at 149. In light of that evidence we concluded that the 

"relationship between the goal of alleviating 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 of the class of persons affected by RCW 

4.16.190(2) to the goal of reducing insurance costs must be deemed "too attenuated 

to survive [even] rational basis scrutiny" unless RCW 4.16.190(2) will have a 

9 
Schroeder v. Weighall, MD., et al. 

No. 87207-4 

significantly greater effect on insurance premiums than the eight-year statute of 

repose did. I d. The respondents in this case offer no evidence for this greater effect, 

but they speculate that it might have motivated the legislature to enact the minority 

tolling statute: "[T]he legislature, mindful of DeYoung, [might have] believed that. 

. . 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 not permit us to hypothesize facts. Huse, 187 Wash. at 82; Rogers, 6 Wn.2d at 

37. If we are to uphold RCW 4.16.190(2), that law must be justified 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 

another argument on behalf of the minority tolling statute: that it serves the important 

purpose of limiting stale medical malpractice claims. The respondents assert that 

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Schroeder v. Weighall, MD., et al. 

No. 87207-4 

stale claims are particularly burdensome in the medical malpractice context, where 

defendants are subject to rapidly changing standards of care. They note (correctly) 

that the legislature has expressed its interest, in this context, in preventing "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 

of the 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 addressed to stale claims generally, it is (at best) addressed to stale 

claims arising from medical malpractice injuries to minors. Thus, the principle for 

which the statute really stands is not that "compelling even one defendant to 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 arises from a medical incident that 

occurred when the plaintiff 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 of purpose in its 2006 amendment to 

RCW 4.16.350, which reinstated the eight-year statute of repose struck down in DeYoung. 

11 
Schroeder v. Weighall, MD., et al. 

No. 87207-4 

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. 

The respondents attempt to explain this distinction by arguing that "parents or 

guardians may, and often do, sue on an injured child's behalf." 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 

significant preclusive effect on minors' medical malpractice claims. Wash. Supreme 

Court oral argument, Schroeder v. Weighall, No. 87207-4 (May 16, 2013), at 39 

min., 28 sec., audio recording by TVW, Washington State's Public Affairs Network, 

available at http://www.tvw.org. 

This explanation, of course, 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. If the statute is to be justified on the basis 

that it will greatly reduce medical malpractice claims, it cannot also be justified on 

the ground that it will not prevent very many plaintiffs from having their day in 

court. If it is to be justified on the basis that it is a substantial wrong to permit even 

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. 

12 
Schroeder v. Weighall, MD., et al. 

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 of citizens, it also has the 

potential to burden a particularly vulnerable minority. Our Grant County analysis 

emphasized article I, section 12's concern with special interest legislation, but it did 

not overrule our long line of article I, section 12 cases addressing laws that burden 

vulnerable groups. In those cases-our state equal protection cases based on article 

I, section 12-we have 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 

requires us to apply different levels of scrutiny depending on whether the challenged 

law burdened a suspect class, a fundamental right, an important right or semisuspect 

class, or none of the 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."' I d. (internal quotation marks omitted) (quoting Am. 

Legion Post No. 149 v. Dep't of 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 

13 
Schroeder v. Weighall, MD., et al. 

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 of our state equal protection analysis. 

Notably, RCW 4.16.190(2) also has the potential to burden a particularly 

vulnerable population not accountable for its status. In Schaaf, we declined to hold 

that children were a semisuspect class, but we did so because we concluded that 

children in general were more socially integrated-and thus better represented in the 

democratic process-than the "'discrete and insular minorities"' considered suspect 

classes for purposes of federal equal protection analysis. Schaaf, 109 Wn.2d at 17-

19 (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 472 n.24, 105 

S. Ct. 3249, 87 L. Ed. 2d 313 (1985) (Marshall, J., concurring in part 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 of access to the courts 

(quoting Gilbert v. Sacred Heart Med. 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"). 

14 
Schroeder v. Weighall, MD., et al. 

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 of children are 

not accountable for their status. Thus, even if minors generally do not constitute a 

semi suspect class under article I, section 12, the group of minors most likely to be 

adversely affected by RCW 4.16.190(2) may well constitute the type of discrete 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 of the Washington Constitution. We therefore reverse the trial court's 

order dismissing Schroeder's claim. 

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Schroeder v. Weighall, MD., et al. 

No. 87207-4 

WE CONCUR: 

16 

L~5~;2 

{!~[~ }~ (/ 
Schroeder v. Weighall, MD., et al., No. 87207-4 

Dissent by J.M. Johnson, J. 

No. 87207-4 

J.M. JOHNSON, J. (dissenting)-Statutes of limitation are critical to 

the effective functioning of our 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 of care at the 

time of the incident. Statutes of limitation further encourage claimants to 

bring actions in a timely manner while evidence is still fresh. 

Although tort claims are subject by the legislature to 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., et al., No. 87207-4 

Dissent by J.M. Johnson, J. 

In crafting the tolling exception in RCW 4.16.190(2), the legislature 

properly considered the 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 of the 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 

Fourteenth Amendment to the United States Constitution. The plain language 

of RCW 4.16.190(2) and RCW 4.16.350 operate to bar Jaryd Schroeder's 

claim. Because I would affirm summary judgment, 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 

protecting potential defendants against stale claims. See, e.g., Stenberg v. Pac. 

Power & Light Co., 104 Wi1.2d 710, 714, 709 P.2d 793 (1985) (noting that 

statutes of limitation have the valid goal of protecting 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 

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Schroeder v. Weighall, MD., et al., No. 87207-4 

Dissent by J .M. Johnson, J. 

itself a substantial wrong"); Deen v. Egleston, 597 F.3d 1223, 1233 (11th Cir. 

201 0) (observing that "[d]efending law suits is hard; defending malpractice 

suits is harder; and defending old malpractice suits is harder still"); Owens v. 

White, 380 F.2d 310,315 (9th Cir. 1967) (acknowledging that justice requires 

that physicians not be faced with stale claims because the passage of time 

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 of a 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 of a legislative effort to 

manage the problems created by what the legislature deemed to be excessive 

medical malpractice and other litigation. Id. The legislature considered the 

2006 amendments to address '"one of the most important issues facing the 

citizens of Washington State."' Id. (quoting LAWS OF 2006, ch. 8, § 1). As a 

result, tolling no longer applies to minors with medical malpractice claims 

pursuant to RCW 4.16.190(2). 

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

Dissent by J .M. Johnson, J. 

A. RCW 4.16.190(2) Comports With Article I, Section 12 of the 

Washington State Constitution 

In the article I, section 12 privileges and immunities 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.2d at 812, and, (2) if yes, whether there is a reasonable ground for granting 

that privilege or immunity, Grant County I, 145 Wn.2d at 731. In this case, 

the majority is correct that RCW 4.16.190 grants a privilege or immunity. It 

is, however, based on reasonable ground. Consequently, the statute comports 

with article I, section 12. 

I agree .with the majority that RCW 4.16.190 grants a privilege or 

immunity by affecting certain plaintiffs' ability to bring a cause of action after 

his or her incapacity is terminated. Majority at 7; Madison v. State, 161 Wn.2d 

85, 119-21, 163 P.3d 757 (2007) (J.M., Johnson, J., concurring) (setting forth 

the rights that the term "privileges and immunities" has historically 

encompassed, including the right "to institute and maintain actions of any kind 

in the courts of the state" (quoting Corfield v. 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 ground for the lines drawn by the statute. See majority at 8-12. 

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Schroeder v. Weighall, MD., et al., No. 87207-4 

Dissent by 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 of the 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 of limitation 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 of tolling for minors 

with nonmedical malpractice tort claims and incapacitated adults. Framing 

the classes in this way is more in line with the plain language of the statute, 

which is phrased in terms of granting tolling to potential plaintiffs rather than 

exempting healthcare providers from lawsuits. 

The grounds for granting a tolling privilege to minors with 

nonmedical malpractice tort claims and incapacitated adults are 

reasonable 

The legislative purpose in passing RCW 4.16.190(2) and the other 2006 

amendments was two-fold: (1) to assist in solving a crisis in the medical 

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insurance industry and (2) to prevent the substantial wrong of making even 

one defendant have to answer a stale claim. LAWS OF 2006, ch. 8, §§ 301-

302. It goes without saying that the longer the gap between the act, omission, 

or injury and the filing of a 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. This justification rests on common sense and the economics of 

litigation rather than hypothetical facts beyond the scope of the reasonable 

ground test. 

Eliminating the stale claims of those exempted from tolling by RCW 

4.16.190(2) should reduce the total number of stale claims defendants must 

face. It is important to recognize, however, that eliminating all categories of 

tolling would have this same effect. Consequently, there must be a reasonable 

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 supervising them who has legal authority to act on their behalf. 

The legislature can reasonably assume that minors' interests are being 

protected by a parent or guardian. See Harlfinger v. Martin, 435 Mass. 38,47 

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n.14, 754 N.E.2d 63 (2001) (upholding a statute eliminating tolling for minors 

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 of decisions 

on behalf of their children. 

Moreover, there is a valid distinction between medical 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 court has wisely noted that 

[t]he problem of defending stale medical malpractice claims is 

further exacerbated by the fact that the standard of care is itself 

subject to rapid and dramatic change, fueled by advances in 

medical science and technology. From a defendant's perspective, 

demonstrating the standard of care of many years past, and that 

the defendant's treatment of the plaintiff did not deviate from it, 

can be very difficult when, by modern standards, the same care 

would represent 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 

profound than for other categories of tortfeasors. The distinctions underlying 

RCW 4.16.190(2) are, without a doubt, real and substantial. 

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Ultimately, RCW 4.16.190(2) represents the legislature's pursuit of a 

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 Court has long recognized "that 

judicial inquiries into legislative or executive motivation represent a 

substantial intrusion into the workings of other branches of government." Vill. 

of Arlington Heights 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 to justify 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. 

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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. of Amicus Curiae WSAJF at 4-5. 

As a general rule, we will decide a case only on the basis of the 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 of Seattle, 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, I would decline to decide the case on the basis of a freestanding article 

I, section 10 claim. 

C. RCW 4.16.190(2) Comports With the Equal Protection Clause of the 

Fourteenth Amendment to the United States Constitution 

Schroeder contends that RCW 4.16.190(2) violates the equal protection 

clause of the 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 

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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). 

In analyzing state and federal equal protection challenges, we apply one 

of three 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, 5 P.3d 691 (2000) (reaffirming that rational basis applies to juvenile 

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 order to pass rational basis scrutiny, "the legislative classification is 

upheld unless the classification rests on grounds wholly irrelevant to the 

achievement of legitimate state objectives." Harner, 153 Wn.2d at 235-36. 

This test is extremely deferential to legislative determinations. Those 

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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, 124 L. Ed. 2d 211 (1993) (quotingLehnhausen v. Lake Shore 

Auto Parts 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 of purpose attached to RCW 4.16.350 that the legislative intent was 

to help reduce medical malpractice insurance rates and prevent defendants 

from having to defend against stale claims. See LAws OF 2006, ch. 8, § § 3 01-

302. To the extent that healthcare providers face fewer claims, it is likely that 

their medical malpractice insurance premiums will decrease. The benefits of 

such premium decreases will be passed on to 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 

Fourteenth Amendment or state equal protection embodied in article I, section 

12. 

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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 of article 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 summary judgment. 

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