       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,              NO. 87207-4

                     v.
                                                       ENBANC
  STEVEN WEIGHALL, M.D., and
  COLUMBIA BASIN IMAGING, P.C., a
  Washington corporation,                              Filed   JAN 1 6 2014
                               Respondents,

                      and

  KADLEC REGIONAL MEDICAL
  CENTER,

                                Defendant.



          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 Weighall 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 eight-
year 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.
                                             3
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 ofReview

       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 ofMoses 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 ofSeattle 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.
                                              5
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).
                                            6
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 grandparented

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

                                           10
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 ofHealth, 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.



                                          15
Schroeder v. Weighall, MD., et al.
No. 87207-4




WE CONCUR:




                                          L~5~;2
                                           {!~[~ }~
                                                (/




                                     16
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

                                             -2-
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).

                                              -3-
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.

                                             -4-
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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Dissent by J.M. Johnson, J.




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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Schroeder v. Weighall, MD., et al., No. 87207-4
Dissent by J.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. 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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Dissent by J.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, 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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Schroeder v. Weighall, MD., et al., No. 87207-4
Dissent by J.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 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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Schroeder v. Weighall, MD., eta!., No. 87207-4




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