Statute of Limitations for Medical Malpractice Actions – RCW 4.16.350(3)

There are three main categories relating to the Statute of Limitation in medical malpractice cases:

1. Statute of limitations – Three years from the act or omission alleged to have caused the injury

or

One year from the time the injury was discovered or reasonably should have been discovered;

Whichever period expires later, except

2. Statute of repose – In no event shall an action be more than eight years from the act or omission;

3. Tolling provisions – The only exceptions being fraud, intentional concealment, or presence of a foreign body, in which the statute will expire one year from actual knowledge without other limitation.

Statute of limitations for medical malpractice actions is tolled by:

1. Minority (RCW 4.16.190); Schroeder v. Weighall, 179 Wn.2d 566, 316 P.3d 482

(2014); tolled until age of majority;

2. Incapacity (RCW 4.16.190);

3. Imprisonment (RCW 4.16.190);

4. Incompetence or disability: “Incompetent or disabled to such a degree that he or she

cannot understand the nature of the proceedings (RCW 4.16.190(1));

5. Discovery rule (RCW 4.16.350);

6. Fraud (RCW 4.16.350);

7. Concealment (RCW 4.16.350);

8. Foreign body (RCW 4.16.350);

9. “Good faith” request for mediation (RCW 7.70.110); tolled for one year from date of

expiration of the original limitation period.

10. Equitable tolling; Douchette v. Bethel School Dist. No. 403, 117 Wn.2d 805, 812, 818

P.2d 1362 (1991).

 

Statute of Limitations – Minor

Statute of limitations for a minor in medical malpractice cases is tolled until age of majority. Schroeder v. Weighall, 179 Wn.2d 566, 316 P.3d 482 (2014).  Schroeder ruled the 2006 nontolling amendment, RCW 4.16.190(2),8 unconstitutional.  RCW 4.16.350 provides that the limitation period is three years from time of knowledge of a custodial parent or guardian about the probable existence of a negligence claim. “For purposes of this section, notwithstanding RCW 4.16.190, the knowledge of a custodial parent or guardian shall be imputed to a person under the age of eighteen years, and 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 under this section. Any action not

commenced in accordance with this section shall be barred.” RCW 4.16.350.  “RCW 4.16.190(1) provides that the statute of limitations applicable to any legal action shall be tolled during a plaintiff’s minority, incompetency, or incarceration, but RCW 4.16.190(2) eliminates tolling for minors in medical malpractice actions.” {The Schroeder court ruled this exception unconstitutional in 2014.} Schroeder v. Weighall, 179 Wn.2d 566, 569, 316 P.3d 482 (2014).

Where prohibition of tolling under RCW 4.16.190(2) is unconstitutional, “a statute of repose is tolled during a plaintiff’s minority.” Gilbert, 127 Wash.2d at 376.” Unruh v. Cacchiotti, 172 Wn.2d 98, 107, 257 P.3d 631 (2011).

“A statute of repose is tolled during a plaintiff’s minority.” Gilbert, 127 Wash.2d at 376, 900 P.2d 552 (citing Merrigan, 112 Wash.2d at 716, 773 P.2d 78).

Statute of Limitations begins to run when the “last” negligent act or omission occurs.

{The three-year period prescribed by RCW 4.16.350(3) for commencing a medical malpractice action begins to run from the time when the “last” negligent act or omission occurs, not from the time an appreciable injury caused by the act or omission manifests itself. RCW 4.16.350 does NOT provide that the limitations period commences with accrual of a cause of action. Gunnier v. Yakima Heart Ctr., Inc. 134 Wn.2d 854, (1998). Washington statute is an “occurrence accrual rule.”10} {The three-year period begins to run from the wrongful act or omission whether or not injury occurs later, whereas the one-year period begins to run upon discovery of injury (and thus accrual of claim). The time of accrual may not be the same as when statute of limitations begins to run. Accrual, in the traditional sense, is not the test of when the three-year limitations period begins to run in the case of medical malpractice.

Instead, either the wrongful act or omission, or discovery, will commence the running of the alternate limitations periods in RCW 4.16.350(3). Gunnier v. Yakima Heart Ctr., Inc. 134 Wn.2d 854, (1998).}

Request for mediation before filing a medical malpractice claim tolls the statute of limitations for one year.

“A request for mediation under RCW 7.70.11012 tolls the statute of limitations for one year.” Unruh v. Cacchiotti, 172 Wn.2d 98, 105, 257 P.3d 631 (2011) “RCW 7.70.110 is a tolling provision. Morris v. Swedish Health Servs., 148 Wn. App. 771, 776, 200 P.3d 261 (2009). If a plaintiff makes a good faith request for mediation prior to filing a cause of action for medical malpractice, the three year statute of limitations under RCW 4.16.350(3) is tolled for one year.” {Request for mediation after filing a healthcare claim does not invoke RCW 7.70.110, and therefore does not toll the statute of limitations. Dixon v. YAKIMA HMA, LLC, (2013) – unpublished opinion.} “The statute of limitations for a medical negligence claim is three years. RCW 4.16.350. That limitation period is, however, tolled by “a written, good faith request for mediation of a dispute related to damages for injury occurring as a result of health care.” RCW 7.70.110.” Breuer v. Presta, 148 Wn. App. 470, 473, 200 P.3d 724 (2009).

{Either plaintiff or defendant, claimant or prospective defendant, may request mediation. In Morris, defendant is the party that requested mediation. Morris v. Swedish Health Services, 200 P. 3d 261 – Wash: Court of Appeals, 1st Div. 2009.}