Donna Lee Schivley, V. Dr. Christine M. Schaffner, Nd ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DONNA LEE SCHIVLEY,
DIVISION ONE
Appellant,
No. 85639-1-I
v.
UNPUBLISHED OPINION
DR. CHRISTINE M. SCHAFFNER,
N.D.,
Respondent.
DWYER, J. — Donna Schivley appeals from an order dismissing her
complaint. Because the trial court erred by dismissing Schivley’s complaint with
prejudice, we reverse and remand for further proceedings consistent with this
opinion.
I
On May 4, 2023, Schivley filed a complaint against Dr. Christine
Schaffner. Schivley alleged that Dr. Schaffner had been treating her for chronic
Lyme disease since at least 2017 and had failed to follow the professional
standard of care in several ways. Schivley last visited Dr. Schaffner on May 5,
2020.
On May 15, 2023, Schivley filed proof that she had served the summons
and complaint on Dr. Schaffner by mail. Although the proof of service stated that
the court had entered an order authorizing service by mail, no such order
appears of record. Schivley, who was pro se, later admitted that this was
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because she had a “misunderstanding of how to properly serve the Defendant.”
On June 12, 2023, Dr. Schaffner moved to dismiss Schivley’s complaint
with prejudice. She argued that dismissal was required under CR 12(b)(6)
because Schivley’s claims were time-barred and because they “all . . . fail to
state a claim upon which relief may be granted generally.” She also argued that
because Schivley had not properly served her with the summons and complaint
and the defect in service could not be cured within the statutory limitation period,
dismissal was required under CR 12(b)(2) for lack of personal jurisdiction and
under CR 12(b)(5) for insufficient service of process.
On July 14, 2023, the trial court granted Dr. Schaffner’s motion to dismiss
Schivley’s complaint with prejudice. Schivley appeals.
II
Schivley argues that the trial court erred by granting Dr. Schaffner’s
motion to dismiss. The trial court did not specify whether it dismissed Schivley’s
complaint under CR 12(b)(2), (b)(5), or (b)(6). Whichever the case, our review of
the trial court’s decision is de novo. See State v. LG Elecs., Inc., 186 Wn.2d 169,
176, 375 P.3d 1035 (2016) (“We review CR 12(b)(2) dismissals for lack of
personal jurisdiction de novo.”); Walker v. Orkin, LLC, 10 Wn. App. 2d 565, 569,
448 P.3d 815 (2019) (“We review whether service was proper de novo.”); Chukri
v. Stalfort, 200 Wn. App. 870, 874, 403 P.3d 929 (2017) (“We review de novo an
order granting a motion to dismiss under CR 12(b)(6).”).
As further discussed below, we conclude on de novo review that Dr.
Schaffner failed to show that dismissal with prejudice was warranted under any
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of the aforementioned rules. Thus, the trial court erred by granting her motion to
dismiss with prejudice.
III
CR 12(b)(6) authorizes the defendant to make a pre-answer motion to
dismiss a complaint based on “failure to state a claim upon which relief can be
granted.” Dismissal under the rule is proper “only if the court concludes, beyond
a reasonable doubt, the plaintiff cannot prove ‘any set of facts which would justify
recovery.’” Kinney v. Cook, 159 Wn.2d 837, 842, 154 P.3d 206 (2007) (quoting
Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998)).
“The purpose of CR 12(b)(6) is to weed out complaints where, even if that which
plaintiff alleges is true, the law does not provide a remedy.” Markoff v. Puget
Sound Energy, Inc., 9 Wn. App. 2d 833, 839, 447 P.3d 577 (2019). Accordingly,
we presume that all of the facts alleged in the complaint are true and may even
consider hypothetical facts, consistent with the complaint, that are not part of the
record. Gorman v. Garlock, Inc., 155 Wn.2d 198, 214, 118 P.3d 311 (2005).
“CR 12(b)(6) motions should be granted ‘sparingly and with care’ and ‘only in the
unusual case in which plaintiff includes allegations that show on the face of the
complaint that there is some insuperable bar to relief.’” Tenore, 136 Wn.2d at
330 (quoting Hoffer v. State, 110 Wn.2d 415, 421, 755 P.2d 781 (1988)).
A
Dr. Schaffner argued below that dismissal under CR 12(b)(6) was required
because “not a single one” of the allegations in Schivley’s complaint stated a
claim for medical negligence, the undisputed nature of Schivley’s claims. We
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disagree.
To prevail in a medical negligence action, the plaintiff must show duty,
breach, causation, and damages. Rounds v. Nellcor Puritan Bennett, Inc., 147
Wn. App. 155, 162, 194 P.3d 274 (2008). Specifically, the plaintiff must prove
that “[t]he health care provider failed to exercise that degree of care, skill, and
learning expected of a reasonably prudent health care provider at that time in the
profession or class to which he or she belongs, in the state of Washington, acting
in the same or similar circumstances” and that “[s]uch failure was a proximate
cause of the injury complained of.” RCW 7.70.040(1).
Schivley’s complaint alleged that Dr. Schaffner began treating her as early
as August 2017 for chronic Lyme disease and associated conditions. These
included mitochondrial cell disease, posttraumatic stress disorder, and
“[c]erebrovascular (brain) disease and additional critical brain diagnoses.”
Schivley alleged that over the next three years or so, Dr. Schaffner failed to
follow the professional standard of care in a variety of ways, including by not
following up on certain treatments, not ordering certain diagnostic tests,
prescribing inappropriate medications, and failing to diagnose Schivley with
certain conditions. Schivley alleged that Dr. Schaffner’s failure to follow the
standard of care caused her to develop more serious conditions, while her
existing conditions remained untreated or even worsened. She also alleged that
“due to [Dr. Schaffner]’s conduct,” she sustained “emotional distress, suffering,”
and “[l]oss of earnings, career, future income.”
Taking the foregoing allegations as true and considering hypothetical facts
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consistent therewith—for example, that a reasonably prudent health care
provider at the time in Dr. Schaffner’s profession in Washington would have
acted differently under the same or similar circumstances and that the harm
Schivley alleges would not have occurred but for Dr. Schaffner’s conduct—we
cannot reasonably conclude beyond doubt that Schivley would be unable to
establish each element of a medical negligence claim. Accordingly, the trial court
erred to the extent it dismissed Schivley’s complaint under CR 12(b)(6) for failure
to sufficiently plead a medical negligence claim.
B
Dr. Schaffner also argued below that dismissal was required under CR
12(b)(6) because Schivley failed to commence her action within the statutory
limitation period. Again, we disagree.
It is undisputed that RCW 4.16.350 applies to Schivley’s claims. That
statute provides, as relevant here, “Any civil action for damages for injury
occurring as a result of health care . . . shall be commenced within three years of
the act or omission alleged to have caused the injury or condition.” RCW
4.16.350(3). A civil action may be commenced by filing a complaint. CR 3(a).
Schivley filed her complaint on May 4, 2023, one day shy of three years
after her final visit with Dr. Schaffner on May 5, 2020. Dr. Schaffner asserts, as
she did in the trial court, that Schivley’s complaint was not timely filed because it
only “alleged injuries for acts or omissions occurring between 2017 and 2019,”
and her reference to the May 5, 2020 visit was an “attempt[ ] to bootstrap her
untimely claims.” Br. of Resp’t at 6.
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But as Schivley points out, under the “continuing course of treatment” rule,
medical negligence plaintiffs “have the right to allege [an] entire course of
continuing negligent treatment as one claim.”1 Caughell v. Grp. Health Coop. of
Puget Sound, 124 Wn.2d 217, 229-30, 876 P.2d 898 (1994). “The proof required
for a claim of continuing negligent treatment differs slightly on . . . breach and
proximate cause.” Caughell, 124 Wn.2d at 233. To prove breach in a continuing
course of treatment case, “a plaintiff must show that a series of interrelated
negligent acts occurred during the course of treatment for a medical condition.”
Caughell, 124 Wn.2d at 233. In addition, the plaintiff must show “that the series
of interrelated negligent acts caused the injury or damages at issue.” Caughell,
124 Wn.2d at 233. In this context, “interrelated” means “that the negligent acts
must be part of a ‘substantially uninterrupted course of treatment’, and must
relate to the treatment as a whole.” Caughell, 124 Wn.2d at 233 (quoting
Samuelson v. Freeman, 75 Wn.2d 894, 900, 454 P.2d 406 (1969)).
As discussed, Schivley’s complaint alleged that Dr. Schaffner began
treating her as early as 2017 for chronic Lyme disease, and that over the next
three years or so, Dr. Schaffner was negligent in several ways during the course
of that treatment. We cannot conclude beyond doubt that Schivley will be unable
to prove any set of facts showing that Dr. Schaffner’s allegedly negligent acts
1 Dr. Schaffner contends that this court should not consider whether Schivley’s complaint
alleged a continuing course of treatment because Schivley did not argue below that it did. But
our Supreme Court has held that in determining under CR 12(b)(6) whether facts exist that would
defeat a CR 12(b)(6) motion, a court may consider hypothetical situations raised for the first time
on appeal. Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995) (citing Halvorson v.
Dahl, 89 Wn.2d 673, 675, 574 P.2d 1190 (1978)). Furthermore, “[n]either prejudice nor
unfairness is deemed to flow from this rule, because the inquiry on a CR 12(b)(6) motion is
whether any facts which would support a valid claim can be conceived.” Bravo, 125 Wn.2d at
750.
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No. 85639-1-I/7
were part of a substantially uninterrupted course of treatment that was related to
the treatment of Schivley’s Lyme disease and associated conditions as a whole.
Dr. Schaffner points out that under the continuing course of treatment rule,
“claimants must allege that the last negligent act, not simply the end of treatment
itself, occurred within 3 years of filing suit.” Caughell, 124 Wn.2d at 229. She
argues that Schivley’s complaint was untimely under the rule because, although
Schivley referenced her final visit on May 5, 2020, she did not specify how Dr.
Schaffner’s acts or omissions during that final visit were negligent.
But Schivley’s complaint alleged that during her final visit with Dr.
Schaffner, she told Dr. Schaffner that she was experiencing “Mitochondrial Cell
Shutdown” and would be moving to a nursing home, yet Dr. Schaffner made no
recommendations for nursing homes or with regard to Schivley’s stated
condition. Her complaint also alleged that although she experienced pain
following an “IASIS Microneurofeedback” treatment and Dr. Schaffner
subsequently indicated in her treatment plan that she should pause those
treatments, Dr. Schaffner failed to follow up with Schivley about this during their
May 5, 2020 meeting. And, as noted, Schivley alleged that she sustained
emotional and monetary damages as a result of Dr. Schaffner’s conduct. We
cannot conclude that these allegations, together with hypothetical consistent
facts, are insufficient to state a claim that Dr. Schaffner was negligent on May 5,
2020.
For her part, Dr. Schaffner contends that there is “no basis” to find that her
actions or omissions on that date proximately caused harm to Schivley.
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However, this is basically an assertion that Schivley cannot present any evidence
to prove facts essential to her claim that Dr. Schaffner was negligent on May 5,
2020. While such an assertion may have been the proper subject of a motion for
summary judgment under CR 56, it did not establish a basis for dismissal under
CR 12(b)(6), where the court accepts as true the facts conceivably raised by the
complaint. See Brown v. MacPherson’s, Inc., 86 Wn.2d 293, 298 n.2, 545 P.2d
13 (1975) (“A summary judgment motion calls upon the court to determine from
the pleadings and supporting documents whether any genuine issue of material
fact exists requiring a trial. A CR 12(b)(6) motion questions only the legal
sufficiency of the allegations in a pleading.” (citation omitted)); Halvorson v. Dahl,
89 Wn.2d 673, 674, 574 P.2d 1190 (1978) (“[A]ny hypothetical situation
conceivably raised by the complaint defeats a 12(b)(6) motion if it is legally
sufficient to support plaintiff’s claim.”).
In sum, Dr. Schaffner failed to show, as required in the context of a CR
12(b)(6) motion premised on expiration of the limitation period, that Schivley
could not prove any set of facts to show that she timely commenced her lawsuit.
Cf. Austin v. Ettl, 171 Wn. App. 82, 87, 286 P.3d 85 (2012) (“[T]he moving party
in a CR 12(b)(6) motion bears the burden.”). Accordingly, the trial court erred to
the extent that it dismissed Schivley’s complaint under CR 12(b)(6) as time-
barred.
IV
Finally, Dr. Schaffner argued below that dismissal with prejudice was
warranted for lack of personal jurisdiction. This was so, she asserted, because
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Schivley failed to properly serve her with process, and since the statutory
limitation period had expired, Schivley could no longer cure that defect. We
disagree.
Proper service of process, i.e., service of the summons and complaint, CR
4(d)(1), “is an essential prerequisite to obtaining personal jurisdiction.” Walker,
10 Wn. App. 2d at 568. “Service of process must comply with constitutional,
statutory, and court rule requirements.” Walker, 10 Wn. App. 2d at 568.
Generally, the summons and complaint must be personally served. CR 4(d).
Here, it is undisputed that at the time the trial court considered Dr.
Schaffner’s motion to dismiss, Schivley had not yet personally served Dr.
Schaffner. But contrary to Dr. Schaffner’s assertion otherwise, Schivley still had
time to cure that defect. Specifically, RCW 4.16.170 provides,
For the purpose of tolling any statute of limitations an action shall
be deemed commenced when the complaint is filed or summons is
served whichever occurs first. If service has not been had on the
defendant prior to the filing of the complaint, the plaintiff shall cause
one or more of the defendants to be served personally, or
commence service by publication within ninety days from the date
of filing the complaint. . . . If . . . following filing, service is not so
made, the action shall be deemed to not have been commenced for
purposes of tolling the statute of limitations.
In other words, a plaintiff may tentatively commence an action for tolling
purposes by filing a complaint and, if the plaintiff also perfects service within 90
days, meet the requirements of the applicable limitation period. See Banzeruk v.
Estate of Howitz, 132 Wn. App. 942, 945, 135 P.3d 512 (2006) (“RCW 4.16.170
is a ‘tentative commencement’ provision.” (quoting Kramer v. J.I. Case Mfg. Co.,
62 Wn. App. 544, 548, 815 P.2d 798 (1991))).
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Here, Schivley filed her complaint on May 4, 2023. Thus, she had until
August 2, 2023 to perfect service on Dr. Schaffner. See Broad v. Mannesmann
Anlagenbau, A.G., 141 Wn.2d 670, 685, 10 P.3d 371 (2000) (“[T]his court has
expressly held that a plaintiff has the full period of the limitations period to
tentatively commence an action, and the full 90-day period of RCW 4.16.170 to
perfect service.”). Yet the trial court dismissed Schivley’s complaint with
prejudice on July 14, 2023, before the 90-day period expired. Dismissal with
prejudice was premature. See O’Neill v. Farmers Ins. Co. of Wash., 124 Wn.
App. 516, 531, 125 P.3d 134 (2004) (remedy for insufficient service of process is
dismissal without prejudice). Accordingly, and because the record before us
does not establish that Schivley failed to subsequently and timely perfect service
such that her action was “deemed to not have been commenced for purposes of
tolling the statute of limitations,” RCW 4.16.170, we reverse the trial court’s order
dismissing Schivley’s complaint with prejudice and remand for further
proceedings consistent with this opinion. Cf. Korst v. McMahon, 136 Wn. App.
202, 208, 148 P.3d 1081 (2006) (defendant bears burden to prove that limitation
period has expired); Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 487-
88, 200 P.3d 683 (2009) (affirming dismissal without prejudice where it was
uncertain whether the limitation period had run and the parties had not
addressed potentially relevant tolling statutes).
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Reversed and remanded.
WE CONCUR:
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