Two rulings for transparency

By Brendan Williams

Two recent Washington Supreme Court decisions should give cheer to those, including this newspaper, who champion transparency.

On June 21, the court ruled, 8-1, that hospitals could not use a state law as “a fortress where a hospital can hide the keys to locating discoverable information.”

While a patient herself at the Bellingham hospital she works at, Dr. Leasa Lowy suffered serious permanent injury to her left arm that she argued was the result of a negligent intravenous (IV) infusion.

Aware of roughly 170 IV injuries at the hospital, she sought to prove her case. The hospital tried to shield that data behind the state’s quality improvement law, which facilitates candor by health care providers in discussing, and avoiding, mistakes.

Taking a dim view of the hospital’s position, the Washington Supreme Court quoted a 1974 U.S. Supreme Court opinion involving former President Nixon: “[E]xceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”

In this case of first impression, perhaps nationwide, our high court found the IV injury data was “completely external” to what reasonably could be shielded by law protecting the “inner workings” of peer review, not what goes in or out of quality improvement committees. Otherwise, “hide and seek gamesmanship would be encouraged were we to adopt the hospital’s position in this case.”

In an April decision, the court confronted an important question, “Of what use is open government if there is no accountability for revealed wrongs?”

Despite the state’s arguments to the contrary, the court ruled 8-1 that victims of roadway accidents could obtain location-specific accident reports from the state and use them to prove their cases.

Attorney Michael Gendler was rendered a quadriplegic when his bicycle wheel got caught in a bridge deck grating seam on Seattle’s Montlake Bridge, throwing him off his bike. He can no longer work full-time or live independently.

There had been a pattern of other riders’ wheels getting jammed in that fashion, and Gendler, quite reasonably, requested these records from the State Patrol. Yet Gendler was informed he could only obtain this vital evidence if he promised not to use it to prove his case!

The State Patrol sought to use the shield of a federal law as its excuse, despite the state’s voter-passed Public Records Act that states, “The people … do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”

With respect to accident records, the court agreed the state’s “argument is without merit.” The majority noted that, “The State now asks us to place Washington citizens in a worse position than they would have been before” the federal law passed that it sought to hide behind.

The shame of this case is it was avoidable. In 2005, I introduced a bill to simply clarify that existing law allowed accident reports to be publicly available — the position, seven years later, eight justices agreed, was always true.

The lobbyist for newspapers testified in support, and the bill passed a House committee unanimously. Yet the bill died upon the threat it would be politicized. Transparency has a tougher time in the Legislature than the courts.

These decisions are a testament to the ability of courts, in upholding the letter of the law, to overcome those that seek to bend the law to deny justice to those most in need of it. Leasy Lowy and Michael Gendler suffered grievous injuries. They didn’t need the further injury of a hospital or the state hiding the facts.

Olympia attorney Brendan Williams is a former 22nd Legislative District state representative.