### INTHESUPREMECOURTOFTHESTATEOFWASHINGTON
GLENA. McDEVITT, anunmarried man, Respondent,


### v. HARBOR VIEWMEDICAL CENTER, a King CountyPublic Hospital, andJOHN DOE andJANE DOE; UNIVERSITY OF WASHINGTON dbaUW MEDICINE/PHYSICIANS, and THE STATE OF WASHINGTON, a governmental entity, Petitioners. No. 85367-3

ORDERWITHDRAWING PREVIOUS OPINION AND SUBSTITUTING NEWOPINION 

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### . :; WHEREAS, onJune 13,2013,the Court entered an orderpartially**grantirtg;th~;.)'** respondent's motion for reconsideration inorderto considerwhetherthe decision shouldbe given onlyprospective application; and WHEREAS, uponreconsideration, the Courthas written anew opinionto replacethe previouslyfiled opinion; Now, therefore, itis hereby ORDERED: That the slip opinion filed in this case onDecember27, 2012 is WITHDRAWN and is replacedbythe new slip opinionthatis being filed simultaneouslywiththis order.DATED at Olympia, Washingtonthis

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# cry §upreme Court Clerk INTHESUPREME COURTOFTHE STATE OFWASHINGTON
GLENA. McDEVITT, an unmarried man, Respondent,
v. HARBOR VIEWMEDICAL CENTER, a King CountyPublic Hospital, and JOHNDOE and JANE DOE; UNIVERSITY OF WASHINGTON dbaUW MEDICINE/PHYSICIANS, and THE STATE OF WASHINGTON, a governmental entity, Petitioners. No. 85367-3 EnBane Filed 

### NOV 142013

J.M. JOHNSON, J.- In 

### Waples v. Yi, 169 Wn.2d 152, 161, 234 P.3d 187 (201 0), this court held that separation ofpowers principles invalidated the 90 day presuit notice requirement against medical malpractice defendants, as adopted bythe legislature in former RCW 7.70.100(1) (2006).McDevitt v. Harborview Med. Ctr., No. 85367-3



### We now further explain that holding, recogmzmg express constitutional authority in article II, section 26 for the legislature to direct "in what manner, and in what courts, suit may be brought against the state." We conclude that the 90 day presuit notice requirement is constitutional as applied against the State on the grounds that the legislature may establish conditions precedent, including presuit notice requirements. 1 

### While recognizing the statutory waiver of sovereign immunity,2 

### we have upheld similarprocedural requirements for suit against the State (e.g., those codified in former RCW 4.92.110 (1977) and former RCW 4.96.020(4) (1993)). Thus, we hold that the presuit notice requirement of former RCW 7.70.100(1) as applied to the State is a constitutionally valid statutory precondition for suit against the State because it was adopted by the legislature as provided in article II, section 26 of the Washington Constitution.3

1See Nelson v. Dunkin, 69 Wn.2d 726, 729, 419 P.2d 984 (1966) ("[T]he right to sue the state, a county, or other state-created governmental agency must be derived from statutory enactment; and it must be conceded that the state can establish the conditions which must be metbefore thatright can be exercised.").
2Hunter v. N. Mason High Sch., 85 Wn.2d 810, 818, 539 P.2d 845 (1975). 3 Article II, section 26 ofthe Washington Constitution provides, "The legislature shall directby law, in whatmanner, and inwhat courts, suits may be brought againstthe state." -2-McDevitt v. Harborview Med. Ctr., No. 85367-3



### However, in this case, because the plaintiffreasonably relied uponthis court's holding in Waples 

### and chose to forgo the notice requirement of former RCW 7.70.100(1), we conclude that our decision merits prospectiveonly application and will not apply to this case. For that reason, although it


### was based on an overbroad interpretation of Waples 

### that conflicts with our present holding, we affirm the King County Superior Court's denial of Harborview'smotion for summaryjudgment. FACTS AND PROCEDURALHISTORY 

### On July 9, 2007, Glen A. McDevitt was paragliding and crashed into tree branches that threw him onto a roof, a chimney, and then the ground. He sustained a fracture to his left femur and underwent surgery at Harborview Medical Center on July 10, 2007. After surgery and upon discharge, McDevitt alleged in his first amended complaint that he "was taken off' anticoagulant medication. Clerk's Papers at 9. Harborview denied this allegation in its answer. On July 20, 2007, McDevitt went to the emergency room at NorthwestHospital because ofsignificant swelling in his left leg, where he was diagnosed with deep venous thrombosis. McDevitt filed his lawsuit against Harborview on July 20, 2010. Harborview moved for summaryjudgment based on the undisputed fact that

-3-McDevitt v. Harborview Med. Ctr., No. 85367-3



### McDevitt failed to comply with the 90 day presuit notice requirement of former RCW 7.70.100(1). Harborview requested that McDevitt's lawsuit be dismissed with prejudice. In response, McDevitt argued that our decision in Waples 

### invalidated the presuit notice requirement against both private and public defendants. Harborviewthen argued that we did not have occasionto consider the constitutional validity of the presuit notice requirement as applied to lawsuits against the State. King County Superior Court denied Harborview's motion for summary judgment. Harborview petitioned this court for discretionary review, which was granted. McDevitt v. Harborview Med. Ctr., 

### 171 Wn.2d 1012, 249 P.3d 1029 (2011). ANALYSIS 

### The appropriate standard ofreview for an order granting or denying summary judgment is de novo, and the appellate court performs the same inquiry as the trial court. Aba Sheikh v. Choe, 

### 156 Wn.2d 441, 447, 128 P.3d 574 (2006). Additionally, constitutional questions are issues oflaw and
are also reviewed de novo. City of Redmondv. Moore, 

### 151 Wn.2d 664, 668, 91 P.3d 875 (2004). A. PresuitNotificationRequirement

-4-McDevitt v. Harborview Med. Ctr., No. 85367-3



### Article II, section 26 ofthe Washington Constitution provides, "The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state." This court has historically recognized that the legislature has the constitutionally sanctioned power to alter the common law doctrine of sovereign immunity. See Billings v. State, 

### 27 Wash. 288, 291, 67 P. 583 (1902) (recognizing that "only by virtue of[a] statute [passed under article II, section 26] that an action can be maintained against the state"); Coulter v. State, 

### 93 Wn.2d 205, 207, 608 P.2d 261 (1980) (stating that "the abolition ofsovereign immunity is a matter within the legislature's determination"). The legislature first exercised this constitutional authority to abolish state sovereign immunity in 1961 and subsequently amended its waiver in 1963. Former RCW 4.92.090 (1961). The current version ofthe statute reads as follows, "The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out ofits tortious conduct to the same extent as if it were a private person or corporation." RCW 4.92.090. Subsequent court decisions read the waiver
as also abolishing any derivative immunity previously available to local governmental entities. Kelso v. City ofTacoma, 

### 63 Wn.2d 913, 916-19, 390 P.2d 2 (1964); Evangelical UnitedBrethren Church v. State, 

### 67 Wn.2d 246,

-5-McDevitt v. Harborview Med. Ctr., No. 85367-3



### 252, 407 P.2d 440 (1965). The legislature later codified these rulings abolishing the immunity oflocal government entities in 1967. Former RCW 4.96.010 (1967). In Hunter v. North Mason High School, 

### 85 Wn.2d 810, 818-19, 539 P.2d 845 (1975), we invalidated former RCW 4.96.020 (1967) as a violation ofthe equal protection clause ofthe Fourteenth Amendment to the United States Constitution. Former RCW 4.96.020, which was passed under article II, section 26, required that notice oftort claims against the State be made within 120 days from the date the claims arose. See Hunter, 

### 85 Wn.2d at 813, 818-19. Through this statute, the legislature essentially created a truncated statute of limitations of 120 days for tort claims against government entities. See id. 

### at 813. Other potential plaintiffs, however, needed onlyto act against private defendants within the statute oflimitations period of three years. !d. 

### The court reasoned that this arrangement "produce[d] two classes oftort victims and place[d] a substantial burden on the right to bring an action ofone ofthem." !d. 

### Thus, we ruled that former RCW 4.96.020 was unconstitutional on its face. See id. 

### at 818-19. As part of our reasoning in Hunter, 

### we also noted that "[t]he unequivocal waiver of sovereign immunity in the 1963 act thus clearly

-6-McDevitt v. Harborview Med. Ctr., No. 85367-3

indicates that 'the [State's] wmver of tort immunity is unbridled by procedural conditions pertaining to the consent to be sued."' I

### d. at 818 (dictum) (alteration in original) (quoting 

### Cook v. State, 83 Wn.2d 599, 613, 521 P.2d 725 (1974) (Utter, J., concurring)). This reasoning was not only unnecessary to the primary equal protection holding of the case, but subsequent decisions from this court have also allowed the legislature to establish certain conditions precedent before suit can be brought against the State. 

### See Coulter, 93 Wn.2d at 207 (upholding the presuit requirements of former RCW 4.92.110 for tort damages against the State under an article II, section 26 rationale); 

### Medina v. Pub. Uti!. Dist. No.1 of Benton County, 147 Wn.2d 303, 312, 53 P.3d 993 (2002) (upholding the presuit notice requirement of former RCW 4.96.020(4) for tort damages against local government entities under an article II, section 26 rationale); 

### see also DebraL. Stephens & Bryan P. Harnetiaux, 

### The Value ofGovernment Tort Liability: Washington State's Journeyfrom Immunity to Accountability, 30 SEATTLE U. L. REV. 35, 42 (2006) ("The Washington legislature's waiver of sovereign immunity is
. . . not without limitations. Rather, the waiver contains some procedural limitations, including provisions in the 1963 act requiring notice ofclaims, restricting execution onjudgments, and providing

-7-McDevitt v. Harborview Med. Ctr., No. 85367-3



### for a specific fund from which payment of claims and judgments must be made."). Accordingly, the application of the 90 day presuit notice requirement of RCW 7.70.100(1), the statute at issue, against the State should be treated no differently. In Coulter, 

### which was decided in 1980, we distinguished Hunter 

### and specifically noted that our decision in that case was based on an equal protection rationale, rather than on an unequivocal waiver of sovereign immunity. Coulter, 

### 93 Wn.2d at 207. Additionally, we cited "the proposition that the abolition of sovereign immunity is a matter within the legislature's determination." 

### !d. (citing Haddenham v. State, 

### 87 Wn.2d 145, 149, 550 P.2d 9 (1976)). There, former RCW 4.92.110 required that the plaintifffile a claim with the chieffiscal officer ofthe executive branch, and
we reasoned that it is "clear that [the legislature] is providing 'in what manner' suit shall be brought against the State." 

### !d. (quoting article II, section 26). Ultimately, we decided that the presuit notification requirement offormer RCW 4.92.110 was within the authority ofthe legislature to enact under article II, section 26.4 

### !d. The same principle with respect to local

4 Former RCW 4.92.110 (2009), which was the version ofthe statute in effect at the time McDevitt filed his lawsuit against Harborview, mandated that all claims subject to the filing requirements of former RCW 4.92.100 be presented to the risk management -8-McDevitt v. Harborview Med. Ctr., No. 85367-3



### government entities was also at issue in Medina. 

### There, former RCW 4.96.020(4) required a 60 day presuit notice to local government entities in all tort actions. Medina, 

### 147 Wn.2d at 308. We upheld this presuit notice requirement as being within the constitutional power ofthe legislature under article II, section 26.5 

### !d. 

### at 314-15. Like Coulter 

### and Medina, 

### where presuit notice requirements were upheld under article II, section 26, the 90 day presuit notice requirement of former RCW 7.70.100(1) as applied to state defendants should also be upheld under article II, section 26. In 2009, the legislature chose to exempt "claims involving injuries from health care" from the requirements offormer RCW 4.92.110 (2006) and former RCW 4.96.020(4) (2006) after it passed

division 60 days prior to the commencement of the action. Former RCW 4.92.100(1) (2009), however, exempted all "claims involving injuries from health care" because those claims "are governed solely by the procedures set forth in chapter 7.70 RCW." This health care exemption was incorporated into RCW 4.92. 100 in 2009 to avoid inconsistent presuit notice requirements found in former RCW 4.92.110 and former RCW 7.70.100(1) for medical malpractice cases. The current version of RCW 4.92. 100, however, has removed the health care exemption. 5 Former RCW 4.96.020 (2009), which was also the version ofthe statute in effect at the time McDevitt filed his lawsuit against Harborview, included the same 60 day presuit notice requirement, but it also exempted all "claims involving injuries from health care" because those claims "are governed solely by the procedures set forth in chapter 7.70 RCW." Former RCW 4.96.020(1) (2009). This health care exemption was incorporated into RCW'4.96.020 in 2009 to avoid inconsistent presuit notice requirements found in former RCW 4.96.020(4) (2009) and former RCW 7.70.100(1) for medical malpractice cases. The current version ofRCW 4.96.020(1), however, has removed the health care exemptioninresponse to our decision in Waples and ongoing litigation inthis case.
-9-McDevitt v. Harborview Med. Ctr., No. 85367-3



### former RCW 7.70.100(1). The purpose ofthese exemptions was to avoid inconsistentpresuitnotice requirements in medical malpractice cases. 6 

### There is only a 30 day difference between the presuit notice requirement offormer RCW 4.92.110 (2009) and former RCW 4.96.020(4) (2009) and former RCW 7.70.100(1) as applied to state defendants. This difference is de minimis and does not run afoul ofthe legislature's ability under article II, section 26 to establish conditions precedent before suit can be brought against the State. This is because a 90 day presuit notice requirement is reasonable and does not constitute a substantial burden on the ability of governmental tort victims to obtain relief. Hall v. Niemer, 

### 97 Wn.2d 574, 581, 649 P.2d 98 (1982) (noting in light ofHunter 

### and Coulter 

### that "reasonable procedural burdens may be placed on governmental tort victims as long as such burdens are not substantial and do not constitute a real impediment to relieffor governmental tort victims"); Daggs v. City of Seattle, 

### 110 Wn.2d 49, 53, 750 P.2d 626 (1988) (clarifying that "[s]o long as the procedural burdens offiling**~laims** 

### with the government are reasonable, the claim laws are valid").

6 Former RCW 4.92.110 (2006) and former RCW 4.96.020(4) (2006) both provided for a 60 day notice requirement in all tort actions against the state or a local governmental entity, and former RCW 7.70.100(1) provides for a 90 day notice requirement in all medical malpractice cases. -10-McDevitt v. Harborview Med. Ctr., No. 85367-3


### Additionally, the 30 day difference does not rise to the level of an equal protection violation because it 

### does not have the effect oftruncating the statute oflimitations period to the same extent as the statute at issue in Hunter. Hunter, 85 Wn.2d at 813; see also Coulter, 93 Wn.2d at 207 (explaining that if "[t]he plaintiffhas a filing time requirement equal to the statutory limitations for bringing an action," a presuit notice requirement "does not involve nor deny equal protection"); Daggs, 110 Wn.2d at 53 (clarifying that "[e]qual protection requires that a party have the same amount oftime to bring a tort action against the government as he or she would have to bring the action against a private tortfeasor"). For these reasons, the 90 day presuit notice requirement offormer RCW 7.70.100(1)
as· applied to state defendants is more closely comparable to the presuit requirements at issue in Coulter and Medina than it is to the presuit notice requirement at issue in Hunter. As a result, invalidation of the 90 day presuit notification requirement of former RCW 7.70.100(1) as applied to lawsuits against the State would also require invalidation of former RCW 4.92.110 (2009) and former RCW 4.96.020(4) (2009).7 

### Thus, we find the 90

7 Former RCW 4.92.110 (2009) and former RCW 4.96.020(4) (2009) both provide for a 60 day notice requirement in all tort actions against the State or a local government entity. -11-McDevitt v. Harborview Med. Ctr., No. 85367-3
day presuit notice requirement offormer RCW 7.70.100(1) constitutional as applied to lawsuits againstthe State. B. Equal ProtectionAnalysis The equal protection clause of the Fourteenth Amendment to the United States Constitution provides, "[N]or shall any state ... deny to any person within itsjurisdiction the equal protection ofthe laws." U.S. CONST. amend. XIV, § 1. Article I, section 12 ofthe Washington Constitution also provides, "No law shall be passed granting to any citizen, class ofcitizens,
or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." Statutory classifications that substantially burden indemnification for personal injuries as to some groups but not others are permissible under the equal protection clause to the Fourteenth Amendment only if they are "'reasonable, not arbitrary, and
... rest upon some ground of difference having a fair and substantial relation to the object ofthe legislation, so that all persons similarly circumstanced shall be treated alike."' 

### Hunter, 85 Wn.2d at 814 (alteration in original) (internal quotation marks omitted) (quoting F.S. 

### Royster Guano Co. v. Commw. ofVirginia, 253 U.S. 412, 415, 40 S. Ct. 560, 64 L. Ed. 989 (1920)). A rational basis form of scrutiny is

-12-McDevitt v. Harborview Med. Ctr., No. 85367-3



### used to analyze statutory classifications under both the Fourteenth Amendment to the United States Constitution and article I, section 12 ofthe Washington Constitution, as long as the statute does not infringe on a fundamental right or create a suspect classification. See State v. Coria, 

### 120 Wn.2d 156, 169, 839 P.2d 890 (1992). Under rational basis review, the statute will be upheld as long as there is any conceivable set of facts that could provide arational basis for classification. Medina, 

### 147 Wn.2d at 313. McDevitt mistakenly relies on Hunter 

### in arguing that presuit notification requirements violate equal protection. We have consistently upheld presuit notification requirements to state defendants where plaintiffs have challenged that such laws impermissibly discriminate between governmental and nongovernmental defendants. 8 

### This classification of

8 See 0 'Donoghue v. State, 66 Wn.2d 787, 789-90, 405 P.2d 258 (1965) (indicating that "[c]laim statutes [prescribing the limitations and the manner in which suits must be brought] are mandatory and compliance with them is a conditionprecedentto recovery"); Nelson, 69 Wn.2d at 729 (holding that "the right to sue the state, a county, or other statecreated governmental agency must be derived from statutory enactment; and it must be conceded that the state can establish the conditions which must be met before that right can be exercised"); Coulter, 93 Wn.2d at 207 (upholding presuit notificationrequirement offormer RCW 4.92.110 (1977)); Hall, 97 Wn.2d at 581 (noting in light ofHunter and Coulter that "reasonable procedural burdens may be placed on governmental tort victims as long as such burdens are not substantial and do not constitute a real impediment to relief for governmental tort victims"); Daggs, 110 Wn.2d at 52-53 (explaining that "[c]laims filing laws serve the important function offostering inexpensive settlement of tort claims," and "[s]o long as the procedural burdens of filing claims with the government are reasonable, the claim laws are valid"); Medina, 147 Wn.2d at 314-15 (upholdingthe 60 day presuitnotice requirement offormer RCW4.96.020(4) (1993)). -13-McDevitt v. Harborview Med. Ctr., No. 85367-3


### plaintiffs suing state defendants does not infringe on a fundamental right or create a suspect classification. It 

### is also rationally related to a legitimate government interest because of "the multitude of departments, agencies, officers and employees and their diverse and widespread activities, touching virtually every aspect oflife within the state." Cook, 83 Wn.2d at 603. The complexity of state operations and the difficulty associated with budgeting and allocating funds for this multitude ofdepartments and agencies provides
a legitimate govermnent interest in enacting the presuit notification requirement of former RCW 7.70.100(1). Often, the State receives a quantification ofclaims against each government agency and allocates funds for recovery of these claims based on the likelihood of recovery in each action. The 90 day presuit notification requirement of former RCW 7.70.100(1) is also rationally related to this legitimate govermnent interest because an advance notice ofclaims allows the State to make an accurate and timely allocation based on pending claims and use unspent funds for budgeting in other areas ofstate operations. Additionally, subsequent cases have indicated that Hunter's reach is limited to legislation that essentially shortens the statute of limitations for suits against state defendants. Coulter, 93 Wn.2d at 207 (explaining that if

-14-McDevitt v. Harborview Med. Ctr., No. 85367-3

"[t]he plaintiffhas a filing time requirement equal to the statutory limitations for bringing an action," a presuit notice requirement "does not involve nor deny equal protection"); 

### Daggs, 110 Wn.2d at 53 (clarifying that "[e]qual protection requires that a party have the same amount oftime to bring a tort action against the government as he or she would have to bring the action against a private tortfeasor"). Lastly, we have already held in 

### Daggs that " [c]laim filing laws serve the important function of fostering inexpensive settlement oftort claims." Id. The fact that former RCW 7.70.100(1) does not actually require parties to engage in settlement negotiations does not negate the statute's impact in advancing the object ofthe legislation. Thus,
we should find that the 90 day presuit notice requirement of former RCW 7.70.100(1) is consistent with the guarantees of equal protection in the Fourteenth Amendment to the United States Constitution and article I, section 12 ofthe Washington Constitution. C. 

### Waples v. Yi Prior to our decision in 

### Waples, we invalidated a certificate ofmerit statute as a violation ofpatients' rights to access the court system against a private hospital in 

### Putman v. Wenatchee Valley Medical Center, 166 Wn.2d 974, 985, 216 P.3d 374 (2009). There, we recognized that "[t]he

-15-McDevitt v. Harborview Med. Ctr., No. 85367-3


### Washington State Constitution does not contain a formal separation of powers clause, but 'the very division of our government into different branches has been presumed throughout our state's history to give rise to a vital separation ofpowers doctrine."' Id. 

### at 980 (internal quotation marks omitted) (quoting Brown v. Owen, 

### 165 Wn.2d 706, 718, 206 P.3d 310 (2009)). The controlling issue in Putnam 

### was whether the separation of powers doctrine allowed the legislature to enact a certificate ofmerit statute, RCW 7.70.150, which conflicted with procedural court rules found in CR 8 and CR 11. ld. 

### at 980-81. RCW 7.70.150 required plaintiffs to submit a certificate ofmerit by a health care expert, which verified that "'there [was] a reasonable probability that the defendant's conduct did not follow the accepted standard ofcare,"' before filing a medical malpractice action. Putman, 

### 166 Wn.2d at 983 (quoting RCW 7.70.150(3)). CR 8 details our system ofnotice pleading, and CR 11 states that attorneys do not have to verify pleadings in medical malpractice actions. The majority reasoned that RCW 7.70.150 conflicts with CR 8 because our pleading system requires only "'a short and plain statement ofthe claim' and a demand for relief." ld. 

### (quoting CR 8(a)). According to the majority, the statute also conflicts with CR 11 because it

-16-McDevittv. Harborview Med. Ctr., No. 85367-3


### "requires the attorney to submit additional verification ofthe pleadings." Jd. 

### Thus, we invalidated RCW 7.70.150 as being in conflict with court rules (i.e., procedural law). Id. 

### at 984-85. Waples 

### gave us occasion to consider a similar statute, former RCW 7.70.100(1), which provided a 90 day presuit notice requirement for all medical malpractice cases. 169 Wn.2d at 160. We held that former RCW 7.70.100(1) irreconcilably conflicts withthe commencementrequirements of CR 3(a), the conflictwas a matter ofprocedural and not substantive law, and the notice requirement violated separation of powers. Id. 

### at 161. "If a statute and a court rule cannot be harmonized, the court rule will generally prevail in procedural matters and the statute in substantive matters." Id. 

### CR 3(a) provides the requirements for the commencement of an action, which involves service ofa copy ofa summons and the complaint or filing ofthe complaint. Id. 

### at 160. The majority reasoned that "[r]equiring notice adds
an additional step for commencing a suit to those required by CR 3(a)." Id. 

### Accordingly, former RCW 7.70.100(1) could not be harmonized with CR 3(a), and the notice requirementwas invalidated. !d. 

### at 161. Although we found the notice requirement of former RCW 7.70.100(1) unconstitutional, we did not have occasion to consider the

-17-McDevitt v. Harborview Med. Ctr., No. 85367-3


### constitutionality ofthe statute, in light ofarticle II, section 26, as applied in
cases against state defendants. Additionally, the legislature passed a severability provision, codified under RCW 43.72.911, as part of the Washington Health Services Act of 1993, that reads as follows, "If 

### any provision ofthis act or its application to any person or circumstance is held invalid, the remainder ofthe act or the application ofthe provision to other persons or circumstances is not affected." "An as-applied challenge to the constitutional validity ofa statute is characterizedby aparty's allegation that application of the statute in the specific context of the party's actions or intended actions is unconstitutional." Moore, 

### 151 Wn.2d at 668-69. "Holding a statute unconstitutional as-applied prohibits future application of the statute in a similar context, but the statute is not totally invalidated." 

### !d. at 669. "In contrast, a . . . facial challenge is one where no set of circumstances exists in which the statute, as currently written, can be constitutionally applied."9 

### !d.

9 Additionally, as explained in Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450-51, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008) (citation omitted): Facial challenges
... run contrary to the fundamental principle of judicial restraint that courts should neither '"anticipate a question of constitutional law in advance of the necessity of deciding it"' nor "formulate a rule of constitutional law broader than is required by the -18-McDevitt v. Harborview Med. Ctr., No. 85367-3



### Our decision in Waples 

### was a dispute between private parties and did not involve a state defendant. Whereas the defendants in Waples 

### were private individuals and private corporations, Waples, 

### 169 Wn.2d at 156-57,
we have previously determined that Harborview Medical Center is the equivalent ofa state agency and arm ofthe state, Hontz v. State, 

### 105 Wn.2d 302, 310, 714 P.2d 1176 (1986). As aresult, there were no facts in Waples 

### to address the issue of whether article II, section 26, and the legislature's waiver of sovereign immunity, permitted the legislature to establish conditions precedent before suit can be brought against the State. None of
our relevant case law regarding article II, section 26 or the State's waiver of sovereign immunity was even addressed in the Waples 

### opinion. Additionally, facial invalidation ofthe presuit notice requirement in former RCW 7.70.100(1) would ignore the severability provision passed by the

precise facts to which it is to be applied." Ashwander v. TVA, 297 U.S. 288, 346-47[, 56 S. Ct. 466, 80 L. Ed. 688] (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners ofEmigration, 113 U.S. 33, 39, 5 S. Ct. 352, 28 L. Ed. 899 (1885)). Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will ofthe people from being implemented in a manner consistent withthe Constitution. We must keep in mind that "[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people." Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329[, 126 S. Ct. 961, 163 L. Ed. 2d 812] (2006) (quoting Regan v. Time, Inc., 468 U.S. 641, 652[, 104 S. Ct. 3262, 82 L. Ed. 2d487] (1984) (plurality opinion)). -19-McDevitt v. Harborview Med. Ctr., No. 85367-3


### legislature as part ofthe Washington Health Services Act of 1993
.10 

### This severability clause specifically treats "the application of [former RCW 7.70.100(1)] to other persons or circumstances" as valid if application to other persons or circumstances is invalidated. RCW 43.72.911. Thus, Waples 

### was an as-applied invalidation of the 90 day presuit notice requirement offormer RCW 7.70.100(1). D. Prospective-Only Application A court may give its decisions prospective-only application to avoid substantially inequitable results. We recognize that in Washington, a new decision of law generally applies retroactively, affecting both the litigants before the court as well as subsequent cases. Lunsford v. Saberhagen, 

### 166 Wn.2d 264, 271, 208 P.3d 1092 (2009). However, in rare instances we may choose to give a decision prospective-only application. Id. 

### at 270-71. Although we have used it inconsistently, this court has adopted the United States Supreme Court's three-part test in Chevron Oil 

### Co. v. Huson, 

### 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 296 (1971) for determining whether a new

10 The 90 day presuit notice requirement of former RCW 7.70.100(1) was originally passedbythe legislature in 2006 as an amendment to the 1993 health services act. LAws OF 2006, ch. 314, § 1. In addition, the legislature recently removed the health care exemptions of former RCW 4.92.100(1) (2009) and former RCW 4.96.020(1) (2009), which evidences its intent to subject plaintiffs suing state health care providers to similar notification requirements as those found informer RCW 7.70.100(1). -20-McDevittv. Harborview Med. Ctr., No. 85367-3



### decision should receive prospective-only application. Lunsford, 

### 166 Wn.2d at 272-73 (citing Taskett 

### v. KINGBroad. Co., 

### 86 Wn.2d 439, 448, 546 P.2d 81 (1976)). If

### the following three conditions are met, we may depart from the presumption ofretroactivity: "(1) the decision established a new rule of law that either overruled clear precedent upon which the parties relied or
was not clearly foreshadowed, (2) retroactive application would tend to impede the policy objectives ofthe new rule, and (3) retroactive application would produce a substantially inequitable result." !d. 

### (footnote omitted) (citing Chevron Oil, 

### 404 U.S. at 1 06-07). Under the Chevron Oil test, this case merits prospective-only application. (1) Our decision in Waples, 

### which did not involve the state, declared former RCW 7.70.100 unconstitutional. See 

### 169 Wn.2d at 155 ("[T]he notice requirement of [former] RCW 7.70.100(1) is unconstitutional because it violates the separation of powers."). Today's decision, by recognizing article II, section 26, clarifies that holding in a manner that McDevitt did not foresee. (2) Retroactive application of this decision's holding, which would apply chapter 7.70 RCW to McDevitt, would impede the legislature's policy objectives as embodied in later adopted provisions. Indeed, during the pendency ofthis appeal, the legislature amended RCW

-21-McDevitt v. Harborview Med. Ctr., No. 85367-3

4.92.100(1) to remove the reference to chapter 7.70 RCW. See LAWS OF 2012, ch. 250, § 

### 1. Since the effective date ofthat statutory change (June 7, 2012), claims must be made under RCW 4.92.100, not under chapter 7.70 RCW. 11 LAws OF 2013, ch. 82, § 

### 1. (3) Finally, McDevitt relied on our unqualified language in Waples when he did not file notice as prescribed in former RCW 7.70.100(1). Nullifying his cause of action now would, in effect, punish his reliance on our recent decision: a substantially inequitable outcome. 12 CONCLUSION We hold that the 90 day presuit notice requirement of former RCW 7.70.100(1) as applied to the State is a constitutional application of law under article II, section 26 ofthe Washington Constitution. Additionally, we find that the 90 day presuit notice requirement offormer RCW 7.70.100(1) is not a violation ofequal protection. Lastly, we hold that our decision in Waples was an as-applied invalidation of former RCW 7.70.100(1). However, in order to avoid a substantially inequitable result, we give these holdings prospective-only application. The King County Superior Court's

11 Moreover, the legislaturerecently completely excisedthe 90 day requirement from former RCW 7.70.100. 12 This decision expresses no opinion as to the merits ofMcDevitt's underlying claims.
-22-McDevitt v. Harborview Med. Ctr., No. 85367-3



### denial of Harborview Medical Center's motion for summary judgment is accordingly affirmed.

-23-McDevitt v. Harborview Med. Ctr., No. 85367-3

WE CONCUR:

24McDevitt (GlenA.) v. Harborview Medical Center, etal. (Chambers, J.P.T., concurringinresult only)

No. 85367-3 CHAMBERS, J.* (concurring inresult only)- While I concur inresult, the lead opinionis wrong in its statutory analysis, ignores the clear direction ofthe legislature to avoid inconsistentpresuitnoticerequirements, fails to treat similar government andprivate entities the same, andreaches an absurdresult. Itconfuses whatthe legislature could constitutionally do withwhatthe legislature did do inthe 2009 medical malpractice reform legislation. The lead opinion acknowledges that "[t]hepurpose ofthese exemptions was to avoid inconsistentpresuitnotice requirements in medical malpractice cases" (referringto former RCW4.92.110 (2006) and former RCW4.96.020(4) (2006)), a statementwithwhich I agree. Lead opinion at 10. Butthe lead opinion'sresult isjustthe opposite. Underthe leadopinion'sreasoning, governmenthealth care providers are giventhebenefit of
apresuitnoticerequirementthat otherhealth care providers are not, and governmenthealth care providers were giventhe benefit ofa more generous presuitnoticerequirementthan any other government entitywas atthe time. This is an absurdresult. Clearly, as recent legislative action amply shows, itis notwhat
ourlegislature intendedeither. LAWS OF 2013, ch. 82; LAWS OF 2012, ch. 250. Atthe time this case was filed, all other government entities were entitledto 60 days' notice ofa claimbefore a suit couldbe filed. Thispresuitnotice requirement gives public agencies the opportunityto promptly settle meritorious
*Justice Tom Chambers is serving as ajusticepro tempore ofthe Supreme Courtpursuantto Washington Constitutionarticle IV, section 2(a).McDevitt (GlenA.) v. Harborview Medical Center, etal. (Chambers, J.P.T., concurring inresult only) claims. This uniformity is importantto maintain an evenplaying field with understandablerules. However, underthe lead opinion's strained logic, aportion ofa statute wehavepreviouslyheldto be unconstitutional is resuscitatedto create a very special andprivileged group ofgovernmenthealth careproviders who enjoyed 90 days ofpresuitnotice. To explainwhy governmenthealth care providers, and only governmenthealth care providers, are entitledto 30 more days, the lead opinion simply says, "This difference is de minimis." Lead opinionat 10. Itwas eitherthe intent ofthe legislatureto create anultraspecial class or it was not; whendiscerningthe intent ofthe legislature, the "deminimis" standard is not an analytical standardwe use. Ifwe are to have inconsistentpresuitnotice requirements among government agencies, the legislature, notthis court, should create them. The lead opinionhas confusedwhatthe legislature could do under article II, section 26 ofour state constitutionwithwhat ourlegislature intendedto do in its mostrecent attempt at medical malpracticereform. The lead opinion offers no rational basis for giving governmenthealth careproviders a very special 90-day preclaim filing requirement, when all other state and local entities are entitledto only a 60-daypreclaim filing period, andprivatehealth careproviders are entitled to none. Ourlegislature clearly does notthinkthatis fair; ithas since amendedthe lawto give governmenthospitals the same claimsperiod as other government agencies. LAWS OF 2012, ch. 250; 

### see also LAWS OF 2013, ch. 82. The lead opinion'sresult leaves us notwith legislationthatwas painstakinglydrafted after deep discussion withthe stakeholders. Atbest, itresults inlawthat is simply an accident. Atworst, itresults inlawthatis in clear derogation ofthe legislature's 2McDevitt (GlenA.) v. Harborview Medical Center, etal. (Chambers, J.P.T., concurring inresult only) 

### intent, either for consistentpreclaimperiods among government agencies or for malpractice reformthattreats governmental andprivate health careproviders the same. Ibelieve we shouldbegin, as we did the first time this statute was before us, withthe principle thatthe law applies equallyto all. '"Thevery essence ofcivil liberty certainly consists in the right ofevery individual to claimthe protection of the laws, wheneverhe receives an injury. One ofthe first duties ofgovernment is to affordthatprotection."' Putman v. Wenatchee ValleyMed. Ctr., 

### 166 Wn.2d 974, 979, 216 P.3d 374 (2009) (quotingMarbury v. Madison, 

### 5U.S. (1 Cranch) 137, 163, 2L. Ed. 60 (1803)). This is not merelyrhetorical. The very language of the repudiation ofsovereignimmunityreflects our legislature's embrace ofthat principle: "The state ofWashington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out ofits tortious conduct to the same extent as ifit were aprivateperson or corporation." RCW4.92.090. The 2009 legislature went further withrespectto health care providers. The general provision establishingthe preclaim notice requirement, former RCW 4.92.100 (2009), was amendedto exclude health care injuries, providing more equaltreatment forplaintiffs and defendants alike. FormerRCW4.92.100(1) ("Claims involving injuries from health care are governed solelybythe procedures set forth in chapter7.70 RCW and are exempt from this chapter."). This change again expressedthe legislature's intent at the time thatpublic health care providers wouldbe treated exactly like private health care providers. Thus, RCW 4.92.090 and former RCW 7.70.100 (2006) are in absolute harmony withthe legislature's

3McDevitt (GlenA.) v. Harborview Medical Center, etal. (Chambers, J.P.T., concurring inresult only) 

### intentto treat government andprivate entities (in this case, health careproviders) the same. I recognize thatthis does not end our inquiry. As the lead opinionproperly recognizes, under our constitution, the legislature has the powerto "directby law, inwhatmanner, and in what courts, suits maybe brought againstthe state." WASH. CONST. 

### art. II,§ 26. I agree thatthe legislature may discriminate and provide specialprotections for state andlocal governments within constitutional limits. 1 

### Buthavingthe powerto grantpreferentialtreatmentto yourselfis notthe same as having exercisedthatpower. If

### the legislature wants to carve out an exceptionto its admonitionthat it was to be treatedto the same extent as private persons and corporations, it can do so.2 If

### the legislature wants to actunder article

1Wehave held thatthe State'spowerto discriminate is notunfettered. InHunter v. North Mason High School, 85 Wn.2d 810, 818-19, 539 P.2d 845 (1975), Justice Utterwrote that
we cannotuphold nonclaim statutes simplybecausethey serve to protectthe publictreasury. Absentthatjustification,there is no basis, substantial or even rational, onwhichtheir discriminationbetween governmental plaintiffs and others canbe supported. Theythus cannot standunderthe equalprotection clause ofthe FourteenthAmendment or Canst. art 1, § 12. (Footnote omitted.) I strongly objectto the lead opinion's dismissive labeling oflanguage inHunter as dictum. We are not a federal court; we are notlimitedbythe federal constitution's "cases" and "controversies"requirementthat gave rise to its restrictive "dicta"jurisprudence. U.S. CONST. art. III,§ 2; see Wash. State Farm Bureau Fed'n v. Gregoire, 162 Wn.2d 284, 319 n.32, 174 P.3d 1142 (2007) (Chambers, J., concurring). See generallyMichael C. Dorf, Dicta andArticleIII, 142 U. PA. L. REv. 1997 (1994). Reasoning in a Washington State Supreme Court opinion does notbecome "dictum" merelybecause a later courtfinds itto be inconvenient. 2Again, the legislature must comply with other constitutionalprinciples. Wemustnotforget that exercises ofarticle II, section 26 power are subjectto other constitutional constraints. ZDI Gaming, Inc. v. State ex rel. Wash. State Gambling Comm 'n, 173 Wn.2d 608, 619, 268 P.3d 929 (2012); Hunter, 85 Wn.2d at 818-19. Itmaybe that a well-drawn statute wouldnot run afoul of the equalprotectionprinciples laiddowninHunter. The lead opinionis certainly correctthat 4McDevitt (GlenA.) v. Harborview Medical Center, etal. (Chambers, J.P.T., concurringinresult only) II, section26 to bestowuponpublichealth careproviders special treatment or a competitive advantage overprivatehospitals, the legislature shouldtake that action, notthis court. Giventhe competing interestbetweenprivate andpublic health care providers, this shouldbe debated inthe legislature and notimposedby this court.3 Today, the courtwrites a statute that ourlegislature did not consider and couldnothave intended. Article II, section26 does notvestthis courtwiththe authorityto legislate. However, because I do agree thatthe lead opinion's decision shouldbe appliedprospectively only, I concurinthe resulttoday. This is a unique case. In 

### Waples v. Yi, 169 Wn.2d 152, 161, 234 P.3d 187 (2010), this courtheldthe presuit noticerequirement offormer RCW 7.70.100(1) was unconstitutional onits face.

this courthas upheld other claims periods that favor the State and its subdivisions. See, e.g., Medina v. Pub. Uti! Dist. No.1. of Benton County, 147 Wn.2d 303,313, 53 P.3d 993 (2002) (upholding 60-day waitingperiod); Hall v. Niemer, 97 Wn.2d 574, 581, 649 P.2d 98 (1982) (upholding claim filing conditionprecedentthatplaced "reasonableproceduralburden [that was] not substantial and [did] not constitute areal impedimentto relief'); Coulter v. State, 93 Wn.2d 205, 207, 608 P.2d 261 (1980) (upholding claim filing statutethat did notreduce the statute of limitations). Butinthose cases, we were faced with statutes where the legislature deliberately and publicly exercised its article II, section 26 powerto '"directbylaw, in whatmanner, and in whatcourts, suits maybe brought againstthe state."' Hall, 97 Wn.2d at 581 (quoting CONST. art. II,§ 26). We were not faced with a statutethat was transformed from one thatbenefited all categories ofproviders equallyto benefitingthe State only. A statute that draws purely arbitrary categories violates equal protection. Medina, 147 Wn.2d at 314 (citingState v. Thorne, 129 Wn.2d 736, 771, 921 P.2d 514 (1996)). 3 I also respectfully disagree withthe lead opinion's equal protectionanalysis. A statute that draws purely arbitrary categories violates equalprotection. See, e.g., Medina, 147 Wn.2d 314 (citing Thorne, 129 Wn.2d at 771). Dueto this court'sholdingtoday, former RCW7.70.100 has become purely arbitrary, at least inrelationto the statutethe legislature thought itwas drafting. The legislature's constitutional authorityto direct howthe State maybe suedis subjectto the equal protection clause, and equal protection is offendedwhenpoweris wieldedin an arbitrary manner. See generally id. at 324-29 (Chambers, J., dissenting). 5McDevitt (GlenA.) v. Harborview Medical Center, etal. (Chambers, J.P.T., concurring inresult only) Waples used sweeping language, notthe language ofan "as applied" holding. The plaintiff, indeed, the entire world, was entitledto relyuponthis court'sholding. The lead opinionhas now seen fit to exempt governmenthealth care defendants from thatrule. Underthese exceptional circumstances, I agree the holding should be prospective only.

6McDevitt (GlenA.) v. HarborviewMedical Center} etal. No. 85367-3

7

### McDevitt v. Harborview Med. Ctr., No. 85367-3 (Fairhurst, J., concurring inpart and dissenting inpart)

No. 85367-3 FAIRHURST, J. (concurring inpart and dissenting inpart)-I agree withthe lead opinion that article II, section 26 of the Washington State Constitution empowers the legislature to require a 90 day presuit notification period before filing suit against the State or any of its subdivisions. I wholly join the lead opinion's holding that the presuit notice provision in former RCW 7.70.100(1) (2006) is constitutional. Lead opinion at 2. Onthe issue ofprospectivity, which is the only issue that we granted reconsideration, I find the analysis and ultimate determinationunsatisfactory. In Waples v. Yi, 169 Wn.2d 152, 161, 234 P.3d 187 (2010), we found the presuit notice requirement in former RCW 7.70.100(1) unconstitutional. There is
no discussion or distinction made in the Waples majority between private and governmental defendants. The Waples dissent mentions governmental defendants, but only as an example ofhowpresuit notice requirements have been adopted and upheld in other contexts. Id. at 165 (J.M. Johnson, J., dissenting).

1

### McDevittv. HarborviewMed. Ctr., No. 85367-3 (Fairhurst, J., concurring inpart and dissenting inpart)

Given Glen McDevitt's interpretation of 

### Waples, he thought former RCW 7.70.100(1) no longer applied and he did not need to, nor did he, file a presuit notice. The Statethought it continuedto apply andraisedMcDevitt's failure to file
as a defense. In this case, we have decided substantively that 

### Waples did not invalidate the presuit notice requirement in suits against governmental defendants; therefore, McDevitt should have filed a presuit notice. Before our decision, there
was nothing that said the presuit notice requirement was not required in suits against governmental defendants. It is hard to imagine a clearer violation ofthe separation ofpowers doctrine than the court's determination that its decision will operate prospectively only. The court's decision has not changed the law. There is no principle that says until the court decides a statute is effective, it is not. The statutory notice provision has
never been declared unconstitutional insofar as suits against the government are concerned; at all times, the statute's notice requirement was constitutional when applied inmedical malpractice actions againstthe government. 1 Nonetheless, a majority ofthe court concludes that the statutory provision will be completely inoperable for a period oftime-beginning when 

### Waples was

1The statute was constitutionally valid when applied to the government until the legislature's amendment in 2013 that removed the 90 day presuit notice requirement in its entirety. LAWS OF 2013, ch. 82, § 1 (effective July 28, 2013). 2McDevitt v. HarborviewMed. Ctr., No. 85367-3 (Fairhurst, J., concurring inpart and dissenting inpart)

filed and ending when this case is filed-despite the fact that, as applied, the statute was at all times constitutional and a legitimate exercise ofthe legislature's powerunder article II, sections 1and 26 oftheWashington State Constitution. Given this situation, I do not know how we can give prospective onlyrelief. We are not changing a procedural rule for construing the statute or for determining its constitutionality. We cannot change or invalidate a substantive legislative enactment ifit is constitutional. Nor can we suspend a valid statute. Accordingly, there is no room for any debate about prospective orretroactive application ofour decision. I respectfully dissent from theprospective applicationportion ofthe lead opinion and wouldreverse thetrial court.2

2McDevitt argues that the State at oral argument conceded prospective application. The State's counsel, in response to a question about prospective application, emphasized that Harborview's main concern was an opinion affirming the constitutionality of former RCW 7.70.100(1) as applied to state defendants, stating: This situation is always difficult. I think historically the way the court has approached it is that
... the litigantbefore the court gets the benefit or the burden ofthe decision
... and it applies prospectively from that point. Obviously our interest is in
...the largermatter. Wash. Supreme Court oral argument, McDevitt v. Harborview Med. Ctr., No. 85367-3 (Jan. 12, 2012), at 39 min., 8 sec., audio recording by TVW, Washington State's Public Affairs Network, available at http://www.tvw.org. While acknowledging the State's greater interest in the long term rather than the immediate case, he ended by asking us to reverse the trial court. I do not thinkhis statement canbe deemed a concession.3

### McDevitt v. 

### HarborviewMed. Ctr., No. 85367-3 (Fairhurst, 

### J., concurring inpart and dissenting inpart)

4