# McDevitt v. Harborview Medical Center > Washington Supreme Court · November 14, 2013 · 179 Wash. 2d 59 URL: https://www.frixlaw.com/law-library/cases/4715037 ## Case - **Full name:** Glen A. McDevitt v. Harborview Medical Center - **Court:** Washington Supreme Court - **Decided:** November 14, 2013 - **Citations:** 179 Wash. 2d 59; 316 P.3d 469 - **Precedential status:** Published - **Opinion:** Concurring in part by Fairhurst - **Judges:** Chambers, Fairhurst, González, Johnson, Madsen, Owens, Stephens, Wiggins - **Cited by:** 44 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4715037 ## How later opinions describe it (automated extraction) - finding 90-day presuit notice requirement of former RCW 7.70.100(1) (2006) did not violate equal protection ## Opinion text Fairhurst, J. f32 (concurring in part and dissenting in part) — I agree with the 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 *82 the presuit notice provision in former RCW 7.70.100(1) (2006) is constitutional. Lead opinion at 63. On the issue of prospectivity, which is the only issue that we granted reconsideration for, I find the analysis and ultimate determination unsatisfactory. |33 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 of how presuit notice requirements have been adopted and upheld in other contexts. Id. at 165 (J.M. Johnson, J., dissenting). ¶34 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 State thought it continued to apply and raised McDevitt’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. ¶35 It is hard to imagine a clearer violation of the separation of powers 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 *83 requirement was constitutional when applied in medical malpractice actions against the government. 16 ¶36 Nonetheless, a majority of the court concludes that the statutory provision will be completely inoperable for a period of time — beginning when Waples was 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 of the legislature’s power under article II, sections 1 and 26 of the Washington State Constitution. ¶37 Given this situation, I do not know how we can give prospective only relief. 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 if it is constitutional. Nor can we suspend a valid statute. Accordingly, there is no room for any debate about prospective or retroactive application of our decision. I respectfully dissent from the prospective application portion of the lead opinion and would reverse the trial court. 17 Madsen, C.J., concurs with Fairhurst, J. The 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). McDevitt 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 ROW 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 litigant before the court gets the benefit or the burden of the decision . . . and it applies prospectively from that point. Obviously our interest is in . . . the larger matter. 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 think his statement can be deemed a concession. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4715037. Public record. Not legal advice.