WASHINGTON’S 1986 TORT LEGISLATION AND THE STATE CONSTITUTION: TESTING THE LIMITS

INTRODUCTION

Chapter 305, another so-called “tort reform” act, has effected profound changes in the substantive and procedural law governing personal injury litigation in Washington. As with most legislation, the courts will presume the act is constitutional. This article questions the constitutionality of four major sections of the act-Accelerated Physician-Patient Privilege, Limitation on Non-economic Damages, Apportionment of Damages, and Limitation of Actions. These sections are addressed because they each represent a significant and unprecedented change in Washington law. As will be seen, the perfunctory homage of the presumption of constitutionality cannot hold up upon close examination of these four provisions.

The assessment is largely confined to principles of state constitutional law. This preference is borne out of the recognition that the federal constitution primarily represents a limitation on the federal government and is interpreted in the federal system as setting for a nation the “lowest common denominator” of constitutional rights.” On the other hand, state constitutions serve as a reservoir of individual rights and as a check on legislative abuses of such rights. While state and federal constitutional rights may be regarded as co-extensive, it is equally clear that state constitutional provisions are capable of providing greater rights than federal counterparts. . .

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Charles K. Wiggins, Bryan P. Harnitiaux & Robert H. Whaley, Washington’s 1986 Tort Legislation and the State Constitution: Testing the Limits, 22 Gonz. L. Rev. 193 (1986-87).

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