Until 1986, the State of Washington was one of many jurisdictions with a tolling statute that suspended the statute of limitations period for minors until they reached majority.  These statutes recognized a strongly held principle of the common law and our tort system: “children are to be protected from the destruction of their rights by the running of the statute of limitations.”‘ The legislative rationale underlying such statutes is that children should not be barred from bringing action merely because their parents failed to bring the claim before the statute of limitation ran. The Washington Supreme Court recognized that rationale in Ohler v. Tacoma General Hospital. Ohler held that a twenty-one year old woman did have a cause of action regardless of her parents’ prior knowledge of a possible cause of action for medical malpractice because that knowledge had not been communicated to her before she reached majority status.

Presently, however, the tort system’s method of compensating personal injuries is being eroded at an alarming rate. This erosion is a consequence of the torrent of medical malpractice litigation that has generated million dollar verdicts and settlements and has created sustained increases in insurance premiums.’ Several state legislatures have responded to this malpractice crisis’ by producing new or revising old statutes that touch the health care system.

Tolling statutes for minors with medical malpractice claims have frequently been amended to bar claims at some time prior to the minor reaching majority status. In March 1986, the Washington legislature reacted to this crisis by amending the tolling statute for minors to impute a parent’s knowledge to the child. The statute requires that any action based on negligence of a licensed health care provider or entity shall be commenced within three years of the act or omission or within one year after the patient or his representative discover or reasonably should have discovered the injury.” The statute also reads, “in no event shall an action be commenced more than eight years after said act or omission.”

This Comment will examine legislative actions that have limited infant tolling statutes as a response to the medical malpractice crisis. Many suits have been filed challenging the constitutionality of such actions. Courts have addressed due process and equal protection claims under state and federal constitutional provisions and are split as to the proper standard of review to apply. In an effort to predict the outcome of prospective actions challenging Washington’s new infant tolling limitation provision, this Comment will analyze Washington Supreme Court cases in which constitutional challenges to other legislative actions were decided. . .

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Cheryl L. Harner, The Repeal of Washington’s Infant Tolling Statute in Medical Malpractice Cases: State Constitutional Challenges, 22 Gonz. L. Rev. 133 (1986-87).

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