Duke v. Boyd , 133 Wash. 2d 80 ( 1997 )

Durham, C.J.

(concurring) — I agree with Justice Talmadge that the Legislature did not intend the tolling provision of RCW 4.16.350 to suspend the limitation period after a plaintiff discovers the essential facts of a cause of action. However, I do not agree that the limitation period should be tolled until the plaintiff actually knows the essential facts. An interpretation of RCW 4.16.350 under which the limitation period is tolled until the plaintiff knows or should know the essential facts is more consistent with our prior cases applying the discovery rule and with the language of the statute.

Our prior cases require a plaintiff to exercise due diligence in the discovery of facts giving rise to a cause of action. Under our discovery rule, a cause of action accrues, and a limitation period begins to run, when the plaintiff knows or should know the essential facts. In re Estates of Hibbard, 118 Wn.2d 737, 752, 826 P.2d 690 (1992); Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992). Similarly, RCW 4.16.350 permits a cause of action to be brought within a maximum of eight years as long as the claim is brought within one year after the plaintiff discovered or reasonably should have discovered the essential facts. See Adcox v. Children’s Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 34-35, 864 P.2d 921 (1993).

Under RCW 4.16.350, intentional concealment will toll the limitation period beyond the otherwise applicable eight-year maximum. However, to be consistent with the one-year discovery rule in RCW 4.16.350 and our prior cases applying the discovery rule, I would hold that, where the essential facts of a cause of action for medical malpractice are intentionally concealed, the limitation period in RCW 4.16.350 is tolled only until the plaintiff knows or should know the essential facts.