wrongful 10 death claims caused by medical negligence are also subject to the provisions of 11 chapter 7.70 RCW
How later courts described this case
- wrongful 10 death claims caused by medical negligence are also subject to the provisions of 11 chapter 7.70 RCW
- “One of the stated legislative intents for this policy change was an attempt to ‘stabilize health services costs.’ Mediation provides an opportunity to settle cases before resorting to litigation, which has the potential to decrease health care costs.”
- "A Court of Appeals decision has no stare decisis effect on this court."
Written by the judges who cited it.
The opinion
Madsen, C.J.
(concurring)
¶32 I agree with the majority that the broad language of the medical negligence statute of limitation (MNSOL), RCW 4.16.350, 15 and the modification of actions provisions found in RCW 7.70.010 16 compel application of the MNSOL on the claim for death of a child here. I write separately to emphasize the limited scope of the decision in this case.
¶33 The present wrongful death claim, brought under the child death statute, RCW 4.24.010, 17 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 *42 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’s 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 of the “result of health care” provision of the noted statutes. See RCW 7.70.010. The application here of the MNSOL is not because the wrongful death claim is derivative of some personal claim that the decedent may have had. See Johnson, 45 Wn.2d at 423 .
¶34 I acknowledge 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 of limitations (SOL) applies to wrongful death claims. 18 See, e.g., Robinson v. Balt. & Seattle Mining & Reduction Co., 26 Wash. 484, 490-91 , 67 P. 274 (1901); Dodson v. Cont’l 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 Hosp., 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 of Seattle, 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 *43 health care context, however, the general torts catchall three year SOL still applies.
¶35 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 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).
¶36 With these observations, I concur.
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 under this chapter shall toll the statute of limitations provided in RCW 4.16.350 for one year.
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.)
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.
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.’’