Fast v. Kennewick Pub. Hosp. Dist.

This opinion was filed for reeord
at &: C)O Q1N\ an'Nw 11. Wt y I
6WJrdXC~
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.
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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.
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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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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
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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
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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
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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
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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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(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
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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.
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I [r'
WE CONCUR.
UJ~-``RT
)J4/Af``
16
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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.
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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."
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No. 92216-1
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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.
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No. 92216-1
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5