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.

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.

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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 Wn. 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 Wn. 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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d 112, 116,426 P.2d 605 (1967); Clark

v. Icicle lrrig. Oist., 72 Wn.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 Wn. 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 Wn.2d 146, 148, 614 P.2d 1290 (1980); Wood v. Gibbons, 38

Wn. 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 Wn. 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 Wn. 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 Wn.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 Wn.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 Wn. 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 Wn.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 Wn. App.

at 51-53, 111121-26 (citing Wills v. Kirkpatrick, 56 Wn. 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 Wn. 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 Wn. App. at 45-46, 50, 1111 3, 19 (citing Wills, 56 Wn. App. at 757

(addressing RCW 4.20.010); Atchison v. Great W Malting Co., 161 Wn.2d 372, 377, 11

11, 166 P.3d 662 (2007) (same); Beat v. City of Seattle, 134 Wn.2d 769, 776, 954 P.2d

237 (1998) (same); White v. Johns-Manville Corp., 103 Wn.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 Wn. 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 Wn. 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 Wn. 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 Wn. 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 Wn.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 Wn.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.

15

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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 Wn.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 Wn.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 Wn.2d 793, 795, 180 P.2d 573 (1947); Huntington v. Samaritan

Hasp., 101 Wn.2d 466, 468-69, 680 P.2d 58 (1984); White v. Johns-Manville Corp., 103

Wn.2d 344, 348, 693 P.2d 687 (1985); Beal v. City ofSeattle, 134 Wn.2d 769, 776, 954

P.2d 237 (1998); Atchison v. Great W. Malting Co., 161 Wn.2d 372, 377, 166 P.3d 662

(2007); see also Bader v. State, 43 Wn. 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 Wn. 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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