Fast v. Kennewick Pub. Hosp. Dist. ( 2016 )


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  •                                                          This opinion was filed for reeord
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    SUSAN L. CARLSON
    SUPREME COURT CLERK
    IN THE SUPREME COURT OF THE STATE OF WASHINGTON
    SHANE FAST, JAMIE FAST, the marital           )
    community comprised thereof, ROBERT           )
    DALTON FAST, and the estate thereof,          )                       No. 92216-1
    )
    Petitioners,                   )                         En Bane
    v.                                         )
    )
    KENNEWICK PUBLIC HOSPITAL                  )               Filed   _N_o_v_1_?_2_.0_16_ __
    DISTRICT d/b/a KENNEWICK GENERAL )
    HOSPITAL and d/b/a MID-COLUMBIA            )
    WOMEN'S HEALTH CENTER, a                   )
    Washington public hospital district        )
    organized as a government entity,          )
    municipal, or quasi-municipal corporation; )
    ADAM T. SMITH, D.O., individually and for )
    the marital community with spouse or       )
    registered domestic partner Jane Doe       )
    Smith; GREGORY SCHROFF, M.D.,              )
    individually and for the marital community )
    with spouse or registered domestic partner )
    Jane Doe Smith; and DOES 1 through 50, )
    )
    Respondents.                )
    )
    WIGGINS, J.-The medical negligence statute of limitations (MNSOL) requires
    filing a claim for medical negligence within three years of the allegedly negligent act
    or omission or within one year of when the negligence is or should have been
    discovered, whichever is later. RCW 4.16.350(3). The MNSOL may be tolled for one
    year upon the making of a good-faith request for mediation. RCW 7. 70.110.
    Fast et a/. v: Kennewick Pub. Hasp. Dist. eta/.
    No. 92216-1
    The general torts catchall statute of limitations is also three years. RCW
    4.16.080(2). However, there is no tolling provision associated with the general torts
    catchall statute of limitations. We hold that in cases of wrongful death resulting from
    negligent health care, the MNSOL (RCW 4.16.350(3)) applies.
    FACTS
    Jamie Fast entered into a doctor/patient relationship with Dr. Adam Smith and
    Kennewick Public Hospital District on January 25, 2008. Jamie 1 sought care because
    of difficulty conceiving and menstrual bleeding, which had been heavier and more
    prolonged than normal. At her first appointment, she completed medical history forms
    including questions regarding her health and the health of her relatives. Jamie noted
    that her grandmother had diabetes and both her parents had high cholesterol.
    In late March 2008, Dr. Smith confirmed Jamie was pregnant. Jamie bled for
    the first few months of pregnancy-visiting the emergency room at least once for
    bleeding. Jamie phoned Dr. Smith's office multiple times to inquire about her bleeding.
    Each time, Jamie went to Dr. Smith for an examination or she had an ultrasound at
    the hospital. After each checkup or ultrasound, Dr. Smith assured Jamie that
    everything was fine or normal.
    Several times during the pregnancy, Jamie mentioned excessive thirst and
    frequent urination to Dr. Smith and/or his nursing staff. She was assured that this was
    normal. During an August 8, 2008 visit, Jamie raised concerns about a 10 pound
    1We refer to Jamie Fast by her first name to avoid confusion in this opinion. We intend no
    disrespect.
    2
    Fast eta/. v. Kennewick Pub. Hasp. Dist. et a/.
    No. 92216-1
    weight loss; again, she was reassured that her pregnancy was progressing normally.
    Also during this visit, a glucose challenge test was postponed. A glucose challenge
    test is designed to measure blood sugar and determine whether the mother is at risk
    for gestational diabetes. Neither Dr. Smith nor his nursing staff ever raised concerns
    about blood sugar, diabetes, high blood pressure, or weight loss during Jamie's
    pregnancy.
    At Jamie's August 25, 2008 appointment, Dr. Gregory Schroff covered for Dr.
    Smith. Dr. Schroff scheduled a glucose challenge test four days later, on August 29,
    2008, Jamie's first blood sugar test since establishing care with Dr. Smith. Jamie's
    blood glucose concentration was over six times the upper limit of normal-so high that
    Dr. Schroff did not believe the accuracy of the results. Dr. Schroff scheduled another
    blood sugar test the following day, August 30, 2008-these results indicated a glucose
    concentration over four times normal levels. Dr. Schroff admitted Jamie to the hospital
    for management of diabetes and pregnancy that same day. Jamie was 29 weeks
    pregnant. 2
    At the hospital, Dr. Schroff ordered intermittent fetal monitoring. The monitor
    detected fetal distress several times, indicating decelerations of the fetal heart rate.
    The nursing staff's response was to turn off the monitor, rather than to substitute a
    2 The Fasts presented evidence that the standard of care mandates blood glucose
    screening of all nondiabetic patients at 24 to 28 weeks of gestation. Clerk's Papers (CP)
    at 402.
    3
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    No. 92216-1
    different monitor or to expedite delivery of the unborn child. 3 No further action was
    taken. Dr. Schroff failed to review fetal monitor strips; Jamie and her husband, Shane
    Fast, presented evidence that the slips indicated that intervention was necessary. 4
    Around 4 a.m. on August 31, 2008, nurses were unable to detect a fetal heartbeat-
    Jamie's unborn child had died. Later that day, Jamie delivered her stillborn baby. She
    has been an insulin-dependent type 2 diabetic since this stillbirth.
    On August 26, 2011 the Fasts served requests for mediation on Drs. Smith and
    Schroff and the hospital that employed them, Kennewick Public Hospital District
    (collectively defendants). Under the MNSOL (RCW 4.16.350(3)), a good-faith
    mediation request tolls the statute of limitations for one additional year. RCW
    7.70.11 0. 5 Defendants expressed no interest in mediating. On July 18, 2012, the Fasts
    3 We recognize that the loss of an unborn child is emotionally charged. Whether we use
    the term "unborn child" or "fetus," the loss is the same. Here, the cause of action at issue,
    RCW 4.24.01 0, addresses injury or death of a child, and accordingly we use the term
    "unborn child."
    4      Dr. Schroff has an independent duty to review the EFM [electronic fetal
    monitoring] tracing to ensure fetal well being. His failure to do so allowed
    this fetus, who was showing evidence of uteroplacental insufficiency, to
    remain in-utero in a hostile environment. This failure to provide acceptable
    EFM surveillance culminated in the in-utero death of this fetus. Dr. Schroff's
    failure to diagnose EFM evidence of fetal compromise and appropriately
    intervene with a cesarean delivery represents a deviation in an acceptable
    standard of care.
    CP at 404 (declaration of the Fasts' medical expert).
    5 RCW 7. 70.110 states, "The making of a written, good faith request for mediation of a
    dispute related to damages for injury occurring as a result of health care prior to filing a
    cause of action under this chapter shall toll the statute of limitations provided in RCW
    4.16.350 for one year."
    4
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    filed a complaint against defendants "for injuries resulting from healthcare" and "injury
    or death of a child" under chapter 7.70 RCW and RCW 4.24.01 0, respectively. Clerk's
    Papers (CP) at 7-8 (Compl. at para. 5.1).
    The relevant dates here are:
    8/31/2008         Death of unborn child
    8/26/2011         The Fasts submit mediation request
    8/3112011         Last day to file under the general torts catchall statute of
    limitations (RCW 4.16.080(2))
    7/18/2012         The Fasts file complaint
    8/31/2012         Last day to file under the MNSOL (RCW 4.16.350(3)) +
    --
    mediation tolling (RCW 7. 70.110)
    Dr. Smith, joined by the other defendants, moved for summary judgment, on
    the ground that the wrongful death claim was barred by the general torts catchall
    statute of limitations and violation of a tort claim statute, which is not at issue here.
    The trial court granted summary judgment on both grounds. The Fasts appealed.
    Division Three upheld the summary judgment ruling that RCW 4.16.080(2), the
    general torts catchall statute of limitations, applies to actions for wrongful death
    caused by medical malpractice. Fast v. Kennewick Pub. Hasp. Oist., 
    188 Wash. App. 43
    ,
    45-46, 53, '11'11 3, 27, 
    354 P.3d 858
    (2015). 6 The Fasts petitioned for review on the
    general torts catchall statute of limitations question, and we granted review.
    6The appellate court also reversed the trial court's dismissal of Jamie's injuries because
    the hospital failed to comply with a statutory requirement that it make available a tort claim
    form. 
    Fast, 188 Wash. App. at 46
    , "iJ4. Without an available tort claim form, the hospital was
    precluded from raising a defense of non presentment of a prefiling notice of claim. /d.
    5
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    STANDARD OF REVIEW
    We review matters of statutory interpretation de novo.       Dep't of Ecology    v.
    Campbell & Gwinn, LLC, 
    146 Wash. 2d 1
    , 9, 
    43 P.3d 4
    (2002).
    ANALYSIS
    Our fundamental goal in statutory interpretation is to "discern and implement
    the legislature's intent." State   v. Armendariz, 
    160 Wash. 2d 106
    , 110, 1J7, 
    156 P.3d 201
    (2007). The court discerns legislative intent from the plain language enacted by the
    legislature, considering the text of the provision in question, the context of the statute
    in which the provision is found, related provisions, amendments to the provision, and
    the statutory scheme as a whole. Campbell & 
    Gwinn, 146 Wash. 2d at 9-10
    .
    The Fasts argue for the application of the three-year MNSOL (RCW
    4.16.350(3)) with an additional year of tolling for a good-faith mediation request. RCW
    7. 70.110. The defendants argue for the application of the general torts catchall statute
    of limitations (RCW 4.16.080(2)), and the Court of Appeals agreed.
    It is undisputed that the Fasts' claim is a wrongful death action against health
    care providers for the death of an unborn child resulting from allegedly negligent
    health care. CP at 7-8 (Compl. at para. 5.1 ); Resp'ts' Opp'n to Pet. for Review at 2.
    The Fasts seek to recover damages for the loss of their minor child, RCW 4.24.01 0, 7
    7 For purposes of RCW 4.24.010, a viable unborn child is included in the statutory
    definition of "minor child." Moen v. Hanson, 
    85 Wash. 2d 597
    , 599, 
    537 P.2d 266
    (1975). The
    parties do not dispute that the 29-week old unborn child was viable.
    6
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    caused by allegedly negligent health care provided to the mother. RCW 4.24.010
    (injury or death of a child) expressly provides that parents can recover for the wrongful
    death of a minor child. 8      However, RCW 4.24.010 9 neither includes nor expressly
    incorporates a statute of limitations. We hold that in cases of wrongful death resulting
    from negligent health care, the MNSOL (RCW 4.16.350(3)) applies.
    RCW 4.16.350(3)-Medica/ Negligence Statute of Limitations
    Washington's medical negligence statute is codified in chapter 7.70 RCW. The
    legislature began with a declaration of intent that chapter 7.70 RCW would govern all
    actions for damages resulting from health care:
    The state of Washington, exercising its police and sovereign power,
    hereby modifies as set forth in this chapter and in RCW 4.16.350, as now
    or hereafter amended, certain substantive and procedural aspects of a//
    civil actions and causes of action, whether based on tort, contract, or
    8 This action has been repeatedly characterized by Washington cases as an action for
    "wrongful death." E.g., Lockhartv. Beset, 
    71 Wash. 2d 112
    , 116,426 P.2d 605 (1967); Clark
    v. Icicle lrrig. Oist., 
    72 Wash. 2d 201
    , 205-06,432 P.2d 541 (1967); 16 DAVID K. DEWOLF AND
    KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE§ 7:3, at 344 (4th ed.
    2013) (characterizing RCW 4.24.010 as one of the "five statutes in Washington that
    govern wrongful death actions").
    9   RCW 4.24.010, in pertinent part, states,
    A mother or father, or both, who has regularly contributed to the support of
    his or her minor child ... may maintain or join as a party an action as plaintiff
    for the injury or death of the child.
    In such an action, in addition to damages for medical, hospital,
    medication expenses, and loss of services and support, damages may be
    recovered for the loss of love and companionship of the child and for injury
    to or destruction of the parent-child relationship in such amount as, under
    all the circumstances of the case, may be just.
    7
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    otherwise, for damages for injury occurring as a result of health care
    which is provided after June 25, 1976.
    RCW 7.70.010 (emphasis added). "[W]henever an injury occurs as a result of health
    care, the action for damages for that injury is governed exclusively by RCW 7.70."
    Branam v. State, 
    94 Wash. App. 964
    , 969, 
    974 P.2d 335
    (1999).
    Prior to 1971, there was no separate medical malpractice statute of limitations.
    Medical negligence cases fell within the limitation statutes applicable to all tort claims.
    Bixler   v.   Bowman, 
    94 Wash. 2d 146
    , 148, 
    614 P.2d 1290
    (1980); Wood v. Gibbons, 
    38 Wash. App. 343
    , 346-47, 
    685 P.2d 619
    (1984). "In 1971 the Washington Legislature, in
    harmony with the nationwide trend to limit recovery by medical malpractice victims,
    enacted RCW 4.16.350, which governs the statute of limitations for medical
    malpractice suits." 10 Donna L. Walker, Recent Case, Bixler v. Bowman, 
    94 Wash. 2d 146
    , 
    614 P.2d 1290
    (1980), 16 GONZ. L. REV. 825, 833 (1980).
    The pertinent provisions of RCW 4.16.350 provide,
    Any civil action for damages for injury occurring as a result of health care
    which is provided after June 25, 1976, against:
    (1) A person licensed by this state to provide health care or
    related services, including, but not limited to, a physician ....
    (3) ... based upon alleged professional negligence shall be
    commenced within three years ....
    10 Thestatute, RCW 4.16.350, was again amended in 1976, which is the version currently
    governing medical negligence. 
    Wood, 38 Wash. App. at 347
    .
    8
    Fast et a/. v. Kennewick Pub. Hasp. Dist. eta/.
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    RCW 4.16.350 and RCW 7.70.110 neither expressly include nor exclude
    wrongful death actions. The broad language of RCW 4.16.350 and RCW 7.70.110 is
    illuminated by other provisions of chapter 7.70 RCW that specifically mention "death"
    or "wrongful death" resulting from medical negligence. RCW 7.70.090 states:
    Members of the board of directors or other governing body of a public or
    private hospital are not individually liable for personal injuries or death
    resulting from health care administered by a health care provider granted
    privileges to provide health care at the hospital unless the decision to
    grant the privilege to provide health care at the hospital constitutes gross
    negligence.
    (Emphasis added.) The grant of limited immunity from liability for death, while not
    implicated in this case, implies that such a liability exists under chapter 7.70 RCW. 11
    Additionally, claim reporting requirements found in RCW 7.70.140(2)(a) also
    support the conclusion that the medical malpractice statutes apply to claims for
    wrongful death. RCW 7.70.140(1)(a)-(b). The incorporated statutes define "claim" as
    "a demand for monetary damages for injury or death caused by medical malpractice,
    and a voluntary indemnity payment for injury or death caused by medical malpractice
    made in the absence of a demand for monetary damages." RCW 48.140.01 0(1 ).
    (emphasis added). Similarly, RCW 48.140.01 0(2) defines "claimant" as "a person,
    including a decedent's estate, who is seeking or has sought monetary damages for
    injury or death caused by medical malpractice." (Emphasis added.) Accordingly, we
    11"'A grant of immunity from liability clearly implies that civil liability can exist in the first
    place."' Beggs v. Dep't of Soc. & Health Servs., 
    171 Wash. 2d 69
    , 78, ~ 16, 
    247 P.3d 421
    (2011) (quoting Jane Doe v. Corp. of President of Church of Jesus Christ of Latter-Day
    Saints, 141 Wn. App. 407,422-23, 
    167 P.3d 1193
    (2007)).
    9
    Fast et a/. v. Kennewick Pub. Hasp. Oist. et a/.
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    conclude that the legislature intended to subject wrongful death claims caused by
    medical negligence to the provisions of chapter 7.70 RCW.
    RCW 7.70.150(1) also displays the legislative intent to include wrongful death
    claims under chapter 7.70 RCW. Although this provision has been struck down as
    unconstitutional, it has not been repealed. Putman v. Wenatchee Valley Med. Ctr., PS,
    
    166 Wash. 2d 974
    , 977,   ~   1, 
    216 P.3d 374
    (2009). RCW 7.70.150(1) provides in part:
    In an action against an individual health care provider under this chapter
    for personal injury or wrongful death in which the injury is alleged to have
    been caused by an act or omission that violates the accepted standard
    of care, the plaintiff must file a certificate of merit at the time of
    commencing the action ....
    (Emphasis added.)
    The repeated references to wrongful death claims in chapter 7.70 RCW
    strongly suggest that the statute of limitations for medical malpractice should apply to
    all cases alleging medical negligence. But there is more evidence of legislative intent.
    In 1993, the legislature mandated mediation in health care malpractice claims and
    created a one-year tolling provision for mediation of medical malpractice claims.
    ENGROSSED SECOND SUBSTITUTE S.B. 5304, §§ 419-420, at 119-20, 53d leg., Reg.
    Sess. (Wash. 1993). One of the stated legislative intents for this policy change was
    an attempt to "stabilize health services costs." /d. § 102, at 5. Mediation provides an
    opportunity to settle cases before resorting to litigation, which has the potential to
    decrease health care costs. Additionally, incentivizing alternative dispute resolution
    and cutting the tail off the discovery rule to protect health care providers and their
    insurers from stale claims furthers the legislature's intent to reduce the cost of medical
    10
    Fast eta/. v. Kennewick Pub. Hasp. Dist. et a/.
    No. 92216-1
    malpractice insurance, thereby potentially decreasing the cost of health care.
    Moreover, if medical negligence wrongful death claims are not subject to the tolling
    provisions of RCW 7.70.110, the legislature's intent for mediation in a// medical
    malpractice claims would be thwarted. The references to wrongful death in chapter
    7.70 RCW and the legislative intent of mandatory mediation in medical negligence
    cases weigh heavily in favor of concluding that RCW 4.16.350(3) applies to wrongful
    death suits caused by medical negligence.
    RCW 4. 16. 080(2)-Genera/ Torts Catchall Statute of Limitations
    The defendants argue and the Court of Appeals held that the general torts
    catchall statute of limitations (RCW 4.16.080(2)) applies to wrongful death in medical
    negligence cases. 
    Fast, 188 Wash. App. at 53
    , 1!27.
    RCW 4.16.080, in applicable part, states,
    The following actions shall be commenced within three years:
    (2)   An action for taking, detaining, or injuring personal property,
    including an action for the specific recovery thereof, or for any other
    injury to the person or rights of another not hereinafter enumerated ....
    (Emphasis added.)
    In cases of medical negligence, the language of RCW 4.16.080(2), which
    provides that it is limited to actions "not hereinafter enumerated," requires application
    of the more specific MNSOL in RCW 4.16.350(3). Courts have recognized that RCW
    4.16.080(2) imposes a catchall provision that serves as a statute of limitations for any
    cases that do not fit into other enumerated limitation statutes. Stenberg v. Pac. Power
    11
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    & Light Co., 
    104 Wash. 2d 710
    , 721, 
    709 P.2d 793
    (1985). The Fast case falls squarely
    under RCW 4.16.350(3) (MNSOL), thus, RCW 4.16.080(2) (general torts catchall
    statute of limitations) does not apply.
    The Court of Appeals concluded that RCW 4.16.350(3) does not apply to
    actions for death of a child under RCW 4.24.010 caused by medical negligence,
    relying on Wills and legislative acquiescence to that decision. See 
    Fast, 188 Wash. App. at 51-53
    , 111121-26 (citing Wills v. Kirkpatrick, 
    56 Wash. App. 757
    , 760-63, 
    785 P.2d 834
    (1990)). However, the Court of Appeals relied on cases applying the general torts
    catchall statute of limitations to claims that were not brought under the wrongful death
    of a child statute 12 but rather under a different wrongful death statute, RCW 4.20.010
    (wrongful death-right of action). 13 Additionally, the appellate court quotes the "not
    hereinafter enumerated" language of RCW 4.16.080(2) but does not engage in any
    statutory discussion of this provision. 
    Fast, 188 Wash. App. at 50
    , 1119. Moreover, Fasfs
    reliance on Wills is misplaced as Wills never provided any statutory analysis of the
    "not hereinafter enumerated" language in RCW 4.16.080(2).
    Wills v. Kirkpatrick
    12Fast is the only Washington appellate court decision to address the statute of limitations
    applicable to claims for injury or death of a child under RCW 4.24.010.
    13 See 
    Fast, 188 Wash. App. at 45-46
    , 50, 1111 3, 19 (citing 
    Wills, 56 Wash. App. at 757
    (addressing RCW 4.20.010); Atchison v. Great W Malting Co., 
    161 Wash. 2d 372
    , 377, 11
    11, 
    166 P.3d 662
    (2007) (same); Beat v. City of Seattle, 
    134 Wash. 2d 769
    , 776, 
    954 P.2d 237
    (1998) (same); White v. Johns-Manville Corp., 
    103 Wash. 2d 344
    , 348, 
    693 P.2d 687
    (1985) (same); Dodson v. Cant'/ Can Co., 
    159 Wash. 589
    , 
    294 P. 265
    (1930) (involving
    REM. COMP. STAT.§ 183); Bader v. State, 
    43 Wash. App. 223
    , 227, 
    716 P.2d 925
    (1986)
    (involving wrongful death of an adult, but not citing statute). Neither party has challenged
    the helpfulness of these cases in analyzing the death of a child under RCW 4.24.01 0.
    12
    Fast et at. v. Kennewick Pub. Hasp. Dist. et at.
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    Wills was a wrongful death claim brought against a physician alleging medical
    malpractice. The Court of Appeals considered "whether the medical malpractice
    statute of limitations applies to an action of wrongful death based on medical
    malpractice." 
    Wills, 56 Wash. App. at 758
    . The Wills court quoted the "not hereinafter
    enumerated" language of RCW 4.16.080(2) but failed to engage in any statutory
    discussion of this provision. /d. at 760. Instead, it analyzed the question of "whether
    'damages for injury' should be interpreted broadly to apply to injury to statutory
    beneficiaries in a wrongful death claim or should be limited to injury suffered by the
    patient." /d. at 761. It construed the undefined phrase "damages for injury" as used in
    RCW 4.16.350(3) to exclude wrongful death claims. /d. It also simultaneously
    interpreted the undefined term "injury" as used in RCW 4.16.080(2) to include wrongful
    death claims, without explaining the incongruity resulting .from the differing
    interpretations of similar statutory language. /d. at 760. Additionally, the Wills court did
    not acknowledge the previously mentioned provisions of chapter 7.70 RCW that
    contemplate or specifically reference wrongful death. See RCW 7.70.090, .140(2)(a),
    .150(1).
    The reasoning of the appellate court in Wills is also somewhat undermined by
    the court's conclusion that it would be "illogical" that a "claim could be barred even
    before death triggers accrual of the right to bring the action" if the medical negligence
    accrual point was applied to wrongful death claims. 
    Wills, 56 Wash. App. at 762
    .
    However, this court has recently reached the same result that the Wills court
    considered so illogical. Deggs v. Asbestos Corp., No. 91969-1, slip op. at 19, 20
    13
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    No. 92216-1
    (Wash. Oct. 6, 2016), http://courts.wa.gov/opinions/pdf/919691.pdf (the statute of
    limitations on Sunderberg's underlying claim lapsed during his life, and thus the
    wrongful death suit was properly dismissed). Here, we are not faced with this issue
    since death of the plaintiff's unborn child and the last act/omission of health care were
    virtually simultaneous.
    Respondents claim that this court's denial of review of Wills and legislative
    inaction over the past 25 years is de facto acceptance of the appellate court's decision.
    Resp'ts' Opp'n to Pet. for Review at 1. Our denial of review "has never been taken as
    an expression of the court's implicit acceptance of an appellate court's decision." Matia
    Contractors, Inc.    v. City of Bellingham, 
    144 Wash. App. 445
    , 452,   ~   12, 
    183 P.3d 1082
    (2008). And "evidence of legislative acquiescence is not conclusive, but is merely one
    factor to consider." Safeco Ins. Companies v. Meyering, 
    102 Wash. 2d 385
    , 392, 
    687 P.2d 195
    (1984). Respondents also assert that the Wills decision has a stare decisis effect
    on this court. Resp'ts' Opp'n to Pet. for Review at 10. However, we are not bound by
    a Court of Appeals decision. Bunch v. King County Dep't of Youth Servs., 
    155 Wash. 2d 165
    , 181,   ~   29, 
    116 P.3d 381
    (2005). A Court of Appeals decision has no stare decisis
    effect on this court.
    Furthermore, a decision based on Wills also leads to absurd results. 14 Jamie
    can recover for the loss of her pregnancy but not the loss of her unborn child resulting
    14 Since the date of death and last act/omission of health care in this case are virtually
    simultaneous, the choice of which accrual date to use makes no difference. We recognize
    that the accrual date in other cases may be crucial. See Deggs, slip op. at 19, 20.
    14
    Fast eta/. v. Kennewick Pub. Hasp. Oist. et a/.
    No. 92216-1
    from medical negligence. Jamie can recover for the lost chance of giving live birth
    even though she cannot recover for the loss of her unborn child. The Fasts can
    recover for injuries based on the unborn child's injuries under RCW 4.24.010 (injury
    or death of a child) but cannot recover for the death of this unborn child from those
    same injuries.
    The very language of RCW 4.16.080(2) ("not hereinafter enumerated") confirms
    that the general torts catchall statute of limitations does not apply to cases based on
    medical negligence, which are enumerated in RCW 4.16.350. Accordingly, we hold
    that in cases of wrongful death resulting from negligent health care, the medical
    negligence statute of limitations (MNSOL) (RCW 4.16.350(3)) applies.
    CONCLUSION
    The judgment of the Court of Appeals is reversed, and the case is remanded to
    the superior court for further proceedings consistent with this opinion.
    15
    Fast et a!. v. Kennewick Public Hospital District et a/.
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    I   [r'
    WE CONCUR.
    UJ~-``RT
    )J4/Af``
    16
    Fast, eta!. v. Kennewick Pub. Hasp. Dist., eta!.
    No. 92216-1
    MADSEN, C.J. (concurring)-! agree with the majority that the broad language of
    the medical negligence statute oflimitation (MNSOL), RCW 4.16.350, 1 and the
    modification of actions provisions found in RCW 7.70.010 2 compel application of the
    1
    RCW 4.16.350 provides in relevant part:
    Any civil action for damages for injury occurring as a result of health care ...
    against:
    (1) A person licensed by this state to provide health care or related
    services, including ... a physician ....
    (3) ... based upon alleged professional negligence shall be commenced
    within three years.
    Further a one year tolling provision is provided in RCW 7.70.110 as follows:
    The making of a written, good faith request for mediation of a dispute related to
    damages for injury occurring as a result of health care prior to filing a cause of
    action tmder this chapter shall toll the statute oflimitations provided in RCW
    4.16.350 for one year.
    2
    RCW 7.70.010 provides:
    The state of Washington, exercising its police and sovereign power, hereby
    modifies as set forth in this chapter and in RCW 4.16.350, as now or hereafter
    amended, certain substantive and procedural aspects of all civil actions and
    causes of action, whether based on tort, contract, or otherwise, for damages for
    injury occurring as a result of health care which is provided after June 25, 1976.
    (Emphasis added.)
    No. 92216-1
    (Madsen, C.J., concurring)
    MNSOL upon the claim for death of a child here. I write separately to emphasize the
    limited scope of the decision in this case.
    The present wrongful death claim, brought under the child death statute, RCW
    4.24.010, 3 is based on alleged medical negligence. By its terms, the MNSOL applies to
    "[a]ny civil action" where damages for injury are alleged "as a result of health care."
    RCW 4.16.350. In RCW 7.70.010, the legislature expressly modified "as set forth in
    [chapter 7.70 RCW] and in RCW 4.16.350 ... certain substantive and procedural aspects
    of all civil actions and causes of action ... for damages for injury occurring as a result
    of health care." RCW 7.70.010 (emphasis added). Here, the wrongful death action falls
    within the broad reach of the MNSOL because it is based on a claim for damages
    allegedly resulting from the provision of health care. A wrongful death action "derives
    from the wrongful act causing the death, rather than from the person of the deceased."
    Johnson v. Ottomeier, 
    45 Wash. 2d 419
    , 423, 
    275 P.2d 723
    (1954). Accordingly, under the
    facts of this case the MNSOL's three year statute of limitations, plus one year tolling for
    a good faith mediation request, applies to the child death claim. See RCW 4.16.350;
    RCW 7.70.110, .010. Restated, the MNSOL applies in this case because the wrongful
    death claim itself falls within the broad sweep ofthe "result of health care" provision of
    the noted statutes. See 
    id. The application
    here of the MNSOL is not because the
    3
    RCW 4.24.010 provides in relevant part:
    A mother or father, or both, who has regularly contributed to the support of his or
    her minor child ... may maintain or join as a party an action as plaintiff for the
    injury or death of the child.
    2
    No. 92216-1
    (Madsen, C.J., concurring)
    wrongful death claim is derivative of some personal claim that the decedent may have
    had. See 
    Johnson, 45 Wash. 2d at 423
    .
    I aclmowledge that this decision somewhat alters our wrongful death
    jurisprudence, but in a very limited way. This court has long recognized that the general
    torts (catchall) three year statute oflimitations (SOL) applies to wrongful death claims. 4
    See, e.g., Robinson v. Bait. & Seattle Mining & Reduction Co., 
    26 Wash. 484
    , 490-91, 
    67 P. 274
    (1901); Dodson v. Cant'! Can Co., 
    159 Wash. 589
    , 592,
    294 P. 265
    (1930); Cook
    v. Clallam County, 
    27 Wash. 2d 793
    , 795, 
    180 P.2d 573
    (1947); Huntington v. Samaritan
    Hasp., 
    101 Wash. 2d 466
    , 468-69, 
    680 P.2d 58
    (1984); White v. Johns-Manville Corp., 
    103 Wash. 2d 344
    , 348, 
    693 P.2d 687
    (1985); Beal v. City ofSeattle, 
    134 Wash. 2d 769
    , 776, 
    954 P.2d 237
    (1998); Atchison v. Great W. Malting Co., 
    161 Wash. 2d 372
    , 377, 
    166 P.3d 662
    (2007); see also Bader v. State, 
    43 Wash. App. 223
    , 227, 
    716 P.2d 925
    (1986). But, as
    discussed above, in the health care context the legislature has carved out an exception
    making the MNSOL applicable. Outside of the health care context, however, the general
    torts catchall three year SOL still applies.
    Finally, I note that a wrongful death action itself remains a "separate and distinct"
    cause of action. Bowers v. Fibreboard Corp., 
    66 Wash. App. 454
    , 460, 
    832 P.2d 523
    ( 1992). This case does not change the distinct character of a wrongful death claim. It
    merely recognizes the exception that the legislature has carved out for all claims alleging
    4
    RCW 4.16.080 provides in relevant part, "The following actions shall be commenced within
    three years: ... (2) An action for ... any other injury to the person or rights of another not
    hereinafter enumerated."
    3
    No. 92216-1
    (Madsen, C.J., concurring)
    damages resulting from health care. Accordingly, this case is not an invitation to go
    behind any wrongful death action to the underlying harm in search of a potentially more
    favorable SOL. As noted, in all other contexts outside of death resulting from health
    care, the wrongful death action remains subject to the three year limitation period of
    RCW 4.16.080(2).
    With these observations, I concur.
    4
    No. 92216-1
    (Madsen, C.J., concurring)
    5