Finding that U.S. District Court Judge Benjamin H. Settle for the Western District of Washington applied the state rule when dismissing Jeffery Martin's state medical malpractice suit, the appellate panel vacated the lower court's judgment and remanded it for further proceedings.

"The district court should have applied the Federal Rules, not RCW 7.70A.020 in this case," Judge James V. Selna, a district court judge sitting by designation, wrote on behalf of the appellate panel.

In his suit, Martin claims he began experiencing severe pain, dryness, and itchiness in his eyes while he was incarcerated at the Pierce County Detention Center, but he was denied care, which resulted in permanent damage to his vision, the opinion said.

Martin filed a lawsuit in federal court against Pierce County officials, corrections officers, and medical personnel, claiming violation of his Eighth Amendment rights and a state tort claim for medical malpractice arising out of Washington law. Martin did not file a declaration electing or declining to submit his dispute to arbitration as required in accordance with RCW 7.70A.020(2), the opinion said.

The defendants filed a motion to dismiss, arguing Martin's state medical malpractice claim should be dismissed for failure to comply with state requirements.

In March 2021, Settle granted the defendants' motion as to Martin's state medical negligence claims, finding Martin failed to comply with RCW 7.70A.020, and dismissing it under Fed. R. Civ. P. 54(b). The district court concluded that RCW 7.7A.020 is not a pleading requirement because "'its purpose [is] to prevent litigation of frivolous medical malpractice actions rather than to provide notice of claims and defenses.'"

Additionally, the district court held that the state law did not conflict with Rule 3 because "the state law does "not bear on whether a complaint is considered filed and a suit commenced," the opinion said.

Martin appealed, and the Ninth Circuit reversed and remanded the dismissal.

While considering Federal Rule of Civil Procedure Rule 8, the Ninth Circuit recognized that federal circuit courts have not addressed a declaration requirement like Washington's, but many other states have passed "certificate-of-merit" or "affidavit-of-merit" requirements for medical malpractice claims.

The panel found that there is a "'growing consensus'" among other circuit courts that such requirements do not govern actions in federal court because they conflict with and are supplanted by Federal Rules of Civil Procedure, Selna wrote.

Those cases, according to the opinion, include: the Fourth Circuit's 2021 decision in Pledger v. Lynch, which held that West Virginia's pre-suit certification requirement did not govern actions in federal court because it conflicted with and was supplanted by Rules 8, 9, 11, and 12; the Sixth Circuit's 2019 opinion in Gallivan v. United States, in which Ohio's certificate-of-merit requirement was held not compatible with federal rules 8, 9, and 12; the Seventh Circuit's 2019 opinion in Young v. United States, where the court found that a complaint could not be dismissed because it lacked an affidavit and report as required by Illinois law, because to the extent that it was a rule of procedure, it gave way to Rule 8 of the Federal Rules of Civil Procedure.

The defendants argued that the other courts' reasonings in rejecting certificate-of-merit requirements "is distinguishable and inapplicable to RCW 7.7A.020," the opinion said.

"However, the recent circuit court opinions to consider the issue have applied a different line of reasoning," Selna wrote. "For example, the Fourth Circuit in Pledger explained that Rule 8′s requirement of a 'short and plain statement' of the plaintiff's claim, jurisdictional statement, and explanation of the relief sought is 'a list of elements that 'implicitly excludes other requirements … ' Similarly the Sixth Circuit explained in Gallivan that '[b]y listing these elements, Rule 8 implicitly 'excludes other requirements that must be satisfied for a complaint to state a claim for relief. … ' Likewise, the Seventh Circuit explained in Young that Rule 8 'does not require attachments' as shown by the fact that '[o]ne can initiate a contract case in federal court without attaching the contract, an insurance case without attaching the policy, a securities case without attaching the registration statement, and a tort case without attaching an expert's report. … '

"The relevant inquiry is not whether the federal and state rules share a purpose but whether the Federal Rules 'answer[] the question in dispute,'" Selna added, with Judges Jay S. Bybee and Morgan Christen concurring.

The appellate panel looked to the Sixth Circuit when considering a conflict with Rule 3, which states "a civil action is commenced by filing a complaint with the court." The Sixth Circuit recently held in Albright v. Christensen that Michigan claimants were not required to provide notice before filing a medical malpractice lawsuit because such a requirement conflicted with federal rules, the opinion said.

"The Sixth Circuit's analysis is instructive. Like the presuit-notice requirement, RCW 7.70A.020 conflicts with Rule 3 by adding additional, procedural steps for commencing a suit beyond those that Rule 3 contemplates," Selna wrote. "The Washington law not only requires a claimant to file a declaration when commencing an action, but it also adds a step before commencement—an attorney must present the claimant with a copy of the provisions in the chapter. This directly collides with Rule 3′s requirement that an action commences with the filing of the complaint."

Messages seeking comment were not immediately returned from plaintiffs attorney Bardi D. Martin of Boyle Martin Thoeny or from Ross C. Taylor of Fox Ballard on behalf of the defendants