Opinion
No. 61128-3-I.
October 13, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-40693-1, Mary Yu, J., entered December 21, 2007.
UNPUBLISHED OPINION
Shannon Dodd alleges that her surgeon, Virgil Becker, negligently removed the wrong disc while performing surgery on her back. Dodd admits that she learned of this mistake within months of the surgery, but did not file suit until more than three years had passed. She contends that the statute of limitations was tolled because Dr. Becker tried to conceal his negligence from her. Her contention is based on a tolling proviso contained in RCW 4.16.350(3), which suspends the running of the statute upon proof of fraud or intentional concealment for one year beyond when a plaintiff learns of the fraud or concealment. But because Dodd has the burden of establishing that she filed suit before this one-year deadline and she fails to put forward any evidence showing when she learned of the fraud or concealment, she is not entitled to rely on the tolling proviso, and her medical negligence claim is time-barred. Dodd also asserts a claim for fraud based on the alleged concealment, but she fails to put forward sufficient evidence to support all the elements of her fraud claim. We conclude that the trial court properly dismissed Dodd's claims.
FACTS
Shannon Dodd underwent spine surgery with Dr. Virgil Becker on June 18, 2003. The purpose of the surgery was to remove a herniated disk at the T7-8 level. After the surgery, Dodd continued to experience back pain, and she had several follow up appointments with Dr. Becker. Dr. Becker reviewed x-rays of Dodd's thoracic spine on June 26, 2003, and August 7, 2003. Dodd claims that on her follow up visits with Dr. Becker, he told her everything was fine.
On November 21, 2003, Dodd returned to her primary care provider, Dr. Hilton Chen. Dr. Chen noted that a post operative thoracic MRI revealed "changes T6-7 and focal extrusion of T7-8 on left side unchanged since 4/30/03." Clerk's Papers (CP) at 106. Dodd later acknowledged that Dr. Chen discussed the MRI results with her and that this was when she first came to believe that Dr. Becker had not operated on the T7-8 disk. On March 29, 2004, Dodd informed Dr. Chen that she was "considering working with a lawyer to file a lawsuit against Dr. Becker." CP at 110.
Dodd did not commence her lawsuit against Dr. Becker until December 29, 2006. This was more than three years after the surgery and more than one year after discovering the facts underlying her medical negligence claim. In addition to alleging medical negligence, Dodd's complaint stated a claim for fraud against Dr. Becker
While there is some dispute about whether Dodd discovered her medical malpractice claim in November 2003 or sometime in 2004, she concedes that she failed to commence her action within one year of discovering the claim or within three years of the allegedly negligent act on which it is based.
On November 21, 2007, Dr. Becker moved for summary judgment dismissal. He argued that Dodd's claim was subject to the three-year statute of limitation contained in RCW 4.16.350(3) and that her fraud claim was not supported by the evidence. In opposition to the motion, Dodd argued that when Dr. Becker reviewed her x-rays in the summer of 2003, he must have realized he had removed the wrong disc but that he chose to intentionally conceal his error from her, thereby tolling the otherwise applicable three-year statute of limitation. To support this argument, Dodd introduced a declaration from her medical expert, Dr. Adrian Mikulicich, stating that in his opinion a spine surgeon who reviewed the x-rays should have concluded that the diskectomy was performed at T6-7 rather than T7-8.
On December 21, 2007, the trial court granted Dr. Becker's motion, ruling that Dodd "failed to commence this lawsuit within the applicable statute of limitations, as required by RCW 4.16.350." CP at 59 The court also concluded that Dodd had not offered any evidence to establish a material issue of fact as to the elements of her fraud claim. Dodd now appeals.
ANALYSIS
Dodd argues that she presented a genuine issue of material fact as to whether she could invoke RCW 4.16.350(3)'s tolling proviso and, consequently, that the trial court erred in dismissing her medical negligence claim on summary judgment. When reviewing an order for summary judgment, an appellate court engages in the same inquiry as the trial court. Gunnier v. Yakima Heart Center, Inc., P.S., 134 Wn.2d 854, 858, 953 P.2d 1162 (1998). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Michael v. Mosquera-Lacy, 140 Wn. App. 139, 144, 165 P.3d 43 (2007), review granted, 163 Wn.2d 1033 (2008).
In Washington, the legislature has enacted a specific statute of limitation to govern medical malpractice claims. The statute requires that medical malpractice actions
be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later, except that in no event shall an action be commenced more than eight years after said act or omission: PROVIDED, That the time for commencement of an action is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect, until the date the patient or the patient's representative has actual knowledge of the act of fraud or concealment, or of the presence of the foreign body; the patient or the patient's representative has one year from the date of the actual knowledge in which to commence a civil action for damages.
RCW 4.16.350(3). Dodd concedes that she failed to commence her action within the three-year or one-year limits, but argues that she can toll these limits by invoking the proviso with proof of fraud or intentional concealment. The party who seeks to invoke the tolling proviso bears the burden of establishing its applicability. See Rivas v. Overlake Hosp. Med. Ctr., ___ Wn.2d ___, 189 P.3d 753, 755 (2008). Thus, to trigger the tolling proviso, a plaintiff must at least prove fraud, intentional concealment, or the presence of a nontherapeutic foreign body and that he or she filed suit within one year of acquiring actual knowledge of the act of fraud or concealment or the presence of the foreign body. Here, Dodd has the burden to show not only that Dr. Becker intentionally concealed his negligence from her, but also that she did not wait more than one year after learning of the concealment before commencing her lawsuit.
Dodd's argument raises the issue of whether a plaintiff who is actually aware of his or her underlying medical negligence claim within the three-year and one-year limits despite efforts at concealment may nevertheless rely on the proviso to toll the statute of limitations. We need not resolve this issue in order to decide this case, and we decline to do so.
Here, Dodd failed to demonstrate that she filed suit within one year of acquiring the requisite knowledge. Dodd argues that a jury could infer from Dr. Mikulicich's declaration that Dr. Becker realized he had been negligent when he reviewed her x-rays and chose to conceal this information from her. But there is no indication in the record of when Dodd learned of Dr. Mikulicich's opinion. Therefore, Dr. Mikulicich's declaration does not provide a basis for establishing that Dodd filed suit within one year of acquiring actual knowledge of the act of concealment.
On appeal, Dodd attempts to introduce a letter from Dr. Mikulicich dated January 31, 2007, to show that it was only upon receipt of this letter that she learned that Dr. Becker "could have and should have been able to tell from the post surgical x-rays that surgery occurred at the wrong level." Appellant's Reply Br. (Declaration of Patrick Buckley at 4). However, Dodd concedes that she did not provide this evidence to the trial court and fails to explain why it would be equitable to excuse this omission. Consequently, this evidence is not properly before us. See RAP 9.11.
Dodd also argues that she still does not have the requisite knowledge to trigger the one year limitation on tolling because she is not certain there was concealment — she only suspects it. See Appellant's Reply Brief at 15 (equating "actual knowledge" with "definitive knowledge"). Dodd contends that a plaintiff has "actual knowledge of the act of fraud or concealment" only when a defendant admits the concealment or when the concealment is proved in court. But this interpretation would prevent summary dismissal of any medical negligence claim based on the statute of limitation's one year tolling deadline. The plain language of the statute does not support this reading. Nothing in the statute suggests that a plaintiff must be certain that the defendant intentionally concealed his or her negligence before the one year limitation on tolling applies. Once a plaintiff becomes aware of the facts that form the basis for his or her fraud or concealment claim, the statute limits the tolling period to one year from the date of that awareness.
Dr. Becker argues that "actual knowledge" can be inferred as a matter of law based on what Dodd should have been aware of, but we decline to address whether constructive knowledge of fraud or intentional concealment is sufficient to trigger the one year limitation on tolling because resolution of this issue is not necessary for our decision.
Here, Dodd seeks to invoke tolling based on Dr. Becker's alleged concealment of his negligence, but she fails to produce evidence of when she learned of the facts on which she bases her concealment claim. Without this evidence, she cannot meet her burden of demonstrating that she filed suit within one year of becoming aware of the concealment — a prerequisite for tolling. Because she cannot invoke the statute's tolling proviso, Dodd's medical malpractice claim is time barred.
Dodd also asserts a common law claim for fraud and argues that the court erred in dismissing this claim because "a jury could readily conclude that all of the elements of fraud are present." Appellant's Br. at 21. A plaintiff must prove nine elements by clear, cogent, and convincing evidence to establish a claim for fraud. Guarino v. Interactive Objects, Inc., 122 Wn. App. 95, 86 P.3d 1175 (2004). The elements are (1) a representation of an existing fact, (2) its materiality, (3) its falsity, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) the speaker's intent that it should be acted on by the person to whom it is made, (6) ignorance of its falsity on the part of the person to whom it is made, (7) the latter's reliance on the truth of the representation, (8) her right to rely upon it, and (9) her consequent damage. Farrell v. Score, 67 Wn.2d 957, 958-59, 411 P.2d 146 (1966). In reviewing a case in which the standard of proof is clear, cogent, and convincing evidence, we determine whether a rational trier of fact could find from the evidence in the record that the nonmoving party satisfied this evidentiary burden. Woody v. Stapp, ___ Wn. App. ___, 189 P.3d 807, 810 (2008).
Dodd offers no explanation for how she can prove each of the elements of fraud by the clear, cogent, and convincing standard beyond asserting that a jury could "readily conclude" that Dr. Becker engaged in fraud. To establish fraud, Dodd must show not only that Dr. Becker represented to her that he had not been negligent and that he knew this representation was false, but also that she was unaware it was false and that she suffered damage from her reliance on the misrepresentation. But the undisputed evidence shows that Dodd was not misled by Dr. Becker's purportedly false assurances to her that everything was fine. She became aware of Dr. Becker's alleged negligence soon after her surgery. Given this awareness, Dodd fails to demonstrate what damage she suffered from Dr. Becker's alleged cover-up, which she admits was unsuccessful, as distinct from the underlying negligence. Under the circumstances present here, Dodd fails to raise a genuine issue of material fact to support her fraud claim.
Affirmed.
We Concur: