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Complexification

We like to make the case that any reasonably literate American can read the law – the constitution, the statutes, the court cases – and make some understandable sense of them. In a great many cases, you can do just that, and when you can, that means the legislators or jurists wrote well, in plain English. Sometimes they do not, and that is almost never a virtue.

That point is illuminated in the just-released Washington Supreme Court case Karen Wright v. Milan Jeckle, a case involving medical care which turns on the interpretation of a statute. In a footnote, the court adds: “More precisely, we are asked to interpret a 156 word sentence. We are up to the task.”

That’s good.

Here’s the first section of RCW 19.68.010, which in essence bans rebating on prescriptions:

(1) It shall be unlawful for any person, firm, corporation or association, whether organized as a cooperative, or for profit or nonprofit, to pay, or offer to pay or allow, directly or indirectly, to any person licensed by the state of Washington to engage in the practice of medicine and surgery, drugless treatment in any form, dentistry, or pharmacy and it shall be unlawful for such person to request, receive or allow, directly or indirectly, a rebate, refund, commission, unearned discount or profit by means of a credit or other valuable consideration in connection with the referral of patients to any person, firm, corporation or association, or in connection with the furnishings of medical, surgical or dental care, diagnosis, treatment or service, on the sale, rental, furnishing or supplying of clinical laboratory supplies or services of any kind, drugs, medication, or medical supplies, or any other goods, services or supplies prescribed for medical diagnosis, care or treatment.

Got that? In trying to cover every eventuality, the Washington Legislature here adopted something which few people could properly understand.

The plaintiffs leaned heavy on ellipses to extract a meaning from the passage, which they said boiled to this: “It shall be unlawful for any person . . .to . . . receive . . . [a] profit . . . in connection with the furnishings of medical . . . care . . . on the sale . . . of any . . . drugs. ”

The Supreme Court held otherwise:

While not a model of clarity by any means, when we read all of the words in RCW 19.68.010, it prohibits two things. The first clause prohibits paying anything of value in return for a referral. The second clause prohibits receiving anything of value in return for referring patients. RCW 19.68.010. But the statute does not prevent a patient from paying a health care provider for services rendered or prescriptions received. Nor does it prevent a health care provider from making a profit on furnishing goods or care to patients. We arrive at this conclusion based upon the purpose, structure, and words of this and related statutes. Id. Our conclusion is reinforced by common sense.

Common sense; that’s good.

Would be even better if the statute had been written as “a model of clarity” in the first place.

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