(Medical Malpractice – Part 5 in a Several Part Series)

(This is the fifth part in a multiple part series pertaining to Medical Malpractice Law in Washington State. To read part one click here. To read part two click here. To read part three click here. To read part four click here.)

Tolling the Limitations Period

The statute of limitations is tolled during the continuous course of treatment for a particular condition. Caughell v. Group Health 124 Wn.2d 217, 229, 876 P.2d 898 (1994). Importantly, the Caughell Court held that the event that triggers the statute to run is the last negligent act committed by the defendant and not the last date of treatment. Under the continuous course of treatment rule, there exists a single claim for malpractice. Id., 225.  Therefore, a claim based upon the continuous course of treatment for a condition provides a single cause of action which encompasses the entire period of negligent treatment, if the claimant can establish the last act of negligence was within the three year period or one year discovery rule.

RCW 4.16.350 contains a provision tolling the limitations period when there is proof of fraud, intentional concealment, or the undiscovered presence of a foreign body that is not intended to have a diagnostic or therapeutic effect. Actual discovery of the fraud, concealment, or foreign body starts the limitations period running. From that point, the plaintiff has one year to file suit. Concealment relates to the failure to disclose the basis of a claim for relief. It requires the plaintiff to prove that the health care provider knew he or she made an error and either misrepresented or concealed facts, thereby hindering discovery of the negligence. Gunnier v. Yakima Heart Ctr., In., 134 Wn.2d 854, 866-867, 953 P.2d 1162 (1998).

In 1986 the legislature amended RCW 4.16.350 to impute the knowledge of parents to minors so that “such imputed knowledge shall operate to bar the claim of such minor to the same extent that the claim of an adult would be barred…” In Gilbert v. Sacred Heart Hospital, 127 Wn.2d 370, 900 P.2d 552 (1995), the Court held that RCW 4.16.350’s imputation of knowledge provision did not repeal the minority tolling provision set out in RCW 4.16.190.

RCW 4.16.190 is Washington’s statute that tolls the limitations period for actions by persons under the age of 18, persons disabled or incompetent so as to not be able to “understand the nature of the proceedings,” or persons imprisoned on a criminal charge but prior to sentencing. Subpart (2) of RCW 4.16.190, enacted in 2006, purported to exempt only medical malpractice claims of minors from the tolling. That portion of the statute was held to be violative of article 1, section 12 (the privileges and immunities clause) of the Washington Constitution in Schroeder v. Weighall, 179 Wn.2d 566, 579, 316 P.3d 482 (2014).

There is also a tolling statute for a claimant during his or her active duty military service. RCW 38.42.090.

RCW 7.70.110, mandating mediation of medical malpractice claims, also provides that a written good faith request for mediation served on a defendant before a lawsuit has been filed, and prior to the expiration of the statute of limitations, tolls the limitations period for one year. A request for mediation does not add a year on to the applicable limitations period (it does not create a four year statute), but stops it from running for a year or until the case is commenced, thereby preserving the remaining time to file once the one year tolling period has expired. See, Cortez-Kloehn v. Morrison 162 Wn. App 166, 252 P.3d 909 (2011); See also, Fast vs. Kennewick Public Hospital District, 187 Wn.2d 27, 384 P.3d 232 (2016). The request may be served on the defendant or the defendant’s “authorized agent.” Unruh v. Cacchiotti, 172 Wn.2d 98, 114, 257 P.3d 631 (2011).

In the next post, we will address some of the aspects regarding state and municipal tort claim service requirements.

 (This article was written by Mark Johnson and Michael Sprangers. Mark and Michael’s practice focuses on medical malpractice, legal malpractice, and serious personal injury lawsuits. Their law firm Johnson Flora Sprangers PLLC is located in the Belltown neighborhood of Seattle, Washington.)  

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