Opinion
No. 60121-1-I.
June 30, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-05525-1, Deborah D. Fleck, J., entered May 30, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Dwyer, A.C.J., concurred in by Becker and Lau, JJ.
Tanya Basnaw, Tessa Geare, Leah De La Cruz, Amy McFarlane, and Danielle Hopkins (collectively Plaintiffs) allege that, at various times between 1995 and 2003, Dr. Dennis Momah posed as his identical twin brother, Dr. Charles Momah, and, under the pretext of performing authorized medical procedures, sexually assaulted and otherwise harmed them. The trial court ruled that Plaintiffs' claims were time-barred and, accordingly, dismissed them. Because the trial court correctly ruled that the claims of Basnaw, Geare, the De La Cruzes, and McFarlane sounded in battery, and so were barred by the two-year statute of limitation for such claims, we affirm the trial court's dismissal of those claims. Because, however, nothing in the record shows that Hopkins had notice of her purported battery more than two years before she commenced this action, we reverse the trial court with respect to Hopkins' battery claim, and remand for further proceedings as to that claim.
Anthony De La Cruz is suing in his capacity as Leah De La Cruz's husband.
Because this case addresses brothers sharing the same last name, but only one of those brothers (Dennis Momah) is a party to this appeal, we refer to Dennis Momah simply as "Momah." We refer to Charles Momah by his full name.
I
Plaintiffs filed a complaint against Momah, Charles Momah, and other unidentified tortfeasors on February 10, 2005. The complaint alleged that during Charles Momah's time as an obstetrician/gynecologist working in a medical clinic, Momah would impersonate him and, while impersonating him, rape Charles Momah's patients, sexually abuse them, and perform unauthorized medical procedures on them. The complaint asserted numerous causes of action, including medical negligence, failure to obtain informed consent, violation of the Washington Consumer Protection Act (CPA), breach of fiduciary duty, negligent infliction of emotional distress, intentional infliction of emotional distress, common law fraud, failure by the doctors to report each other's ethical breaches, civil conspiracy, and misrepresentation. Plaintiffs winnowed their legal theories in an amended complaint, alleging medical negligence, failure to obtain informed consent, violations of the CPA, negligent infliction of emotional distress, and civil conspiracy.
Chapter 19.86 RCW.
Nearly identical affidavits from each of the claimants were appended to the two complaints. Plaintiffs declared that, during the years that they were Charles Momah's patients, they believed that they were being treated by someone who resembled Charles Momah but was not him. Plaintiffs also stated the years that they had been Charles Momah's patients: 1995 to 1998 (Basnaw); 1995-1996 (Geare); 2001 to 2002 (De La Cruz); 2002 to 2003 (McFarlane); and 2003 (Hopkins). Plaintiffs also claimed to have observed various differences between the two doctors, including:
• Significant differences in weight
• Asthmatic-type breathing on the part of one doctor, but not the other
• One doctor stuttered while the other did not
• One doctor spoke heavily accented English, while the other spoke better English
• The two doctors' hands appeared very different
• One doctor remembered medical history while the other did not
• One doctor smelled bad
• One doctor had a fatter nose
• The two doctors had visibly different gaits
• The doctors had different handwriting
• The doctors wore different styles of shoes
• One doctor was friendly while the other was rude
Momah filed a motion to dismiss, contending that "the applicable statutes of limitations have long since run" on all of Plaintiffs' claims. Momah contended that, under the rule announced in Bundrick v. Stewart, 128 Wn. App. 11, 17, 114 P.3d 1204 (2005), Plaintiffs' claims were claims for common law medical battery rather than claims for injuries resulting from health care, which are subject to the limitation period set forth in RCW 4.16.350. Thus, according to Momah, Plaintiffs' claims were barred by the two-year statute of limitation for assault and battery claims. RCW 4.16.100(1). Momah also argued that Plaintiffs' claims were not properly cognizable as violations of the CPA. Finally, Momah contended that Plaintiffs did not state separate claims for negligent infliction of emotional distress or civil conspiracy. The trial court agreed and granted Momah's motion to dismiss Plaintiffs' entire lawsuit as untimely, specifically ruling that "the tolling provision of RCW 4.16.350 does not apply." Plaintiffs moved the court to reconsider, which it declined to do.
Plaintiffs appeal with respect to some claims.
Plaintiffs' claims for negligent infliction of emotional distress are not discussed in their briefs. Accordingly, any assignment of error with respect to the dismissal of those claims is waived. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
II
Before reaching the merits of this appeal, we must first determine the correct standard of review, determine whether to grant either of the parties' cross-motions to strike portions of each other's briefs, and determine whether to address contentions raised for the first time during oral argument before us. We must also address Plaintiffs' contention that the trial court's order of dismissal cannot be upheld because it failed to make specific determinations concerning whether and how each individual claimant's allegations were time-barred.
Neither the motion seeking dismissal of Plaintiffs' claims nor the order that granted it specified under which Civil Rule dismissal was justified. We conclude that the appropriate standard of review is the summary judgment standard. A motion to dismiss brought pursuant to either CR 12(b) and CR 12(c) that is supported by material submissions outside of the pleadings is treated as a summary judgment motion. Parrilla v. King County, 138 Wn. App. 427, 432 n. 2, 157 P.3d 879 (2007); Mueller v. Miller, 82 Wn. App. 236, 246, 917 P.2d 604 (1996).
Here, both parties submitted substantial evidentiary declarations — some of which the trial court expressly relied upon — in support of their respective positions concerning whether Plaintiffs timely filed their claims. Accordingly, we "apply the usual de novo standard on review of summary judgment," Bundrick, 128 Wn. App. at 16 n. 3, engaging "in the same inquiry as the trial court," and considering "the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party." Anderson v. State Farm Mut. Ins. Co., 101 Wn. App. 323, 329, 2 P.3d 1029 (2000). Summary judgment "is proper if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." CR 56(c); Anderson, 101 Wn. App. at 329. We "can sustain the trial court's judgment upon any theory established by the pleadings." LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).
Next, Plaintiffs and Momah have filed cross-motions on appeal seeking to strike portions of each other's briefs as unsupported by the record. We conclude that there is support in the record for all of the purportedly objectionable material that the parties have moved to strike, although little, if any, of it is relevant to the actual issues on appeal. Accordingly, while we deny the parties' motions, we will give the challenged briefing on both sides only such weight as it is entitled to with respect to the issues properly before us.
Next, Plaintiffs contended for the first time at oral argument in this court that the trial court could not properly have dismissed the claims of McFarlane, the De La Cruzes, or Hopkins, because Momah's motion to dismiss did not actually request that their claims be dismissed. A review of the record shows that, in fact, although Momah's motion only provided specific examples concerning the timeliness of Plaintiffs' complaint from the declarations of Collier, Basnaw, and Geare, it states in its first sentence, under the heading "Relief Requested," that Momah "moves the court for an order dismissing Plaintiff's [sic] complaint." We decline to determine, however, whether this was a sufficient request for relief to justify the trial court's dismissal of the claims of Hopkins, McFarlane, and the De La Cruzes. We may affirm on any basis in the record, and "an issue not briefed or argued in the trial court will not be considered on appeal," Brower v. Ackerley, 88 Wn. App. 87, 96, 943 P.2d 1141 (1997), nor will an issue initially raised by an appellant during oral argument in this court. RAP 12.1(a); Apostolis v. City of Seattle, 101 Wn. App. 300, 306, 3 P.3d 198 (2000).
If Plaintiffs desired this to be an issue upon which appellate relief could be granted, the proper procedure was to object to the adequacy of the request for relief in Momah's motion before the trial court ruled upon it, obtain a ruling from the trial court on the objection, and then, if the ruling was unfavorable, assign error to the ruling in the opening brief of appellants. None of these things happened here. It is not our role to search out trial court error, seeking to reverse rulings never made.
Finally, Plaintiffs contend that the trial court's order of dismissal cannot be upheld because the trial court failed to make specific findings for each named claimant with respect to the applicability of the appropriate statute of limitation. This argument is without merit. "Findings of fact and conclusions of law are not necessary on summary judgment and, if made, are superfluous and will not be considered on appeal." Concerned Coupeville Citizens v. Town of Coupeville, 62 Wn. App. 408, 413, 814 P.2d 243 (1991).
III
Plaintiffs' first and primary substantive contention is that the trial court erred by ruling that they properly alleged only common law claims for medical battery. Thus, according to Plaintiffs, the trial court's dismissal of those claims pursuant to the two-year statute of limitation for battery actions, RCW 4.16.100(1), was also error. According to Plaintiffs, they also properly stated claims for medical negligence, CPA violations, and common law conspiracy.
Momah responds that, contrary to Plaintiffs' contention, our opinion in Bundrick establishes that actions alleging a complete lack of consent to medical treatment or other offensive touching in the medical context are actions for battery, governed by the limitation period set forth in RCW 4.16.100(1), rather than actions for injuries resulting from health care, governed by the limitation period set forth in RCW 4.16.350. Momah further responds that Plaintiffs fail to state separate, viable claims that he violated the CPA, or that he engaged in a civil conspiracy with Charles Momah. Thus, according to Momah, the trial court correctly concluded that Plaintiffs' claims were barred by the application of RCW 4.16.100(1).
Because Momah is correct that, pursuant to the rule announced in Bundrick, Plaintiffs' claims are properly viewed as claims for common law medical battery rather than as claims for medical negligence, and because he is also correct that Plaintiffs fail to state separate, viable claims that he violated the CPA, or engaged in a common law civil conspiracy, we conclude that the trial court correctly dismissed most of Plaintiffs' claims as untimely. Because, however, the record also shows that plaintiff Hopkins may have timely filed her claim for battery against Momah, we reverse the trial court's order dismissing that claim.
The trial court's order did not specify its rationale for dismissing Plaintiffs' claims. The court's Order on Civil Motion Granting Dr. Dennis Momah's Motion to Dismiss on Statute of Limitation Grounds provides, in full (with the parenthetical and strike-out portions indicating hand-written additions to the typed order of the court):
The above-entitled Court, having heard a motion on defendant, Dr. Dennis Momah's motion to dismiss. The Court having considered the motion to dismiss, along with the supporting documents, including the declaration of Dr. Dennis Momah, and the 2004 letter of dismissal from the Department of Health.
IT IS HEREBY ORDERED that the defendant's (Dennis Momah's) motion is granted and the above entitledcause(plaintiffs' claims are) is hereby dismissed (as to Dennis Momah). Defendant, Dr. Dennis Momah, shall continue with his case on his counterclaims. The Court finds that the tolling provision of RCW 4.16.350 does not apply.
Plaintiffs are correct, however, that the trial court could not have properly concluded that all of Plaintiffs' claims were time-barred without also having concluded that they should have been characterized as claims for battery. This is so because, had the trial court concluded that Plaintiffs stated claims for medical negligence, it could not properly have found that all of Plaintiffs' claims were time-barred under the statute of limitation for such actions.
RCW 4.16.350 provides that a claim alleging medical negligence must be filed within three years after the asserted injury, or within one year after discovery of the injury, whichever is later, and that these limitation periods are tolled upon proof of fraud or intentional concealment on the part of the medical professional:
Any civil action for damages for injury occurring as a result of health care . . . based upon alleged professional negligence shall 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 . . . until the date the patient or the patient's representative has actual knowledge of the act of fraud or concealment.
Accordingly, the trial court could not have appropriately dismissed, on the basis of the facts set forth in the record, the claims of McFarlane, the De La Cruzes, or Hopkins, all of whom received treatment from Charles Momah in either 2002 or 2003. Because Plaintiffs' complaint was filed in February of 2005, less than three years after McFarlane, De La Cruz, or Hopkins ceased their treatment with Charles Momah, all three would have stated viable claims for medical negligence, regardless of when they purported to discover Momah's identity. It follows that the trial court must have based its decision that Plaintiffs' claims were time-barred on a conclusion that, regardless of Plaintiffs' own characterization of their allegations, their claims were solely cognizable as claims for battery.
Thus, the determination of whether the trial court properly dismissed Plaintiffs' medical negligence and lack of informed consent claims as untimely rests on whether, as Momah contends, Bundrick stands for the proposition that a total lack of consent to touching in the medical context creates a claim for battery, but not a claim for medical negligence.
This reading of Bundrick is correct. In Bundrick, we stated that "[a]n action for total lack of consent sounds in battery, while a claim for lack of informed consent is a medical malpractice action sounding in negligence." Bundrick, 128 Wn. App. at 17. We explained that "'[t]he performance of an operation without first obtaining any consent thereto may fall within the concepts of assault and battery as an intentional tort, but the failure to tell the patient about the perils he faces is the breach of a duty and is appropriately considered under negligence concepts.'" Bundrick, 128 Wn. App. at 17 (quoting Miller v. Kennedy, 11 Wn. App. 272, 281-82, 522 P.2d 852 (1974). We observed that, although Miller was decided before the statutory scheme governing injuries resulting from medical care was enacted (chapter 7.70 RCW), its rationale remains sound because "the two causes of action protect entirely different values: informed consent protects the patient's right to know the risks of the decisions she makes about her care, whereas the cause of action for common law battery protects an individual's right to privacy and bodily integrity." Bundrick, 128 Wn. App. at 17 (citing Keogan v. Holy Family Hosp., 95 Wn.2d 306, 313-14, 622 P.2d 1246 (1980); Dan B. Dobbs, The Law of Torts § 29, at 54 (2000)).
Here, Plaintiffs cannot convincingly dispute that their medical negligence claims are properly characterized as claims for battery. Battery is an intentional tort; the tortfeasor must intend an offensive touching, and the plaintiff must show there was no consent to the touching. Bundrick, 128 Wn. App. at 18 (citing Garratt v. Dailey, 46 Wn.2d 197, 200-01, 279 P.2d 1091 (1955); Restatement (Second) of Torts § 13 cmt. d (1965)). Plaintiffs' complaint in this case makes clear that the basis for their suit is their allegation that they never consented to having Dennis (rather than Charles) Momah perform medical procedures on their bodies. The additional basis for their complaint is that, under the guise of performing medical procedures as Charles Momah, Dennis Momah sexually abused them. These allegations are not consistent with claims that Momah failed to obtain informed consent — i.e., that Plaintiffs were aware that he was going to perform a medical procedure upon them but that he failed to properly apprise them of the risks involved in the procedure. At the same time, the declarations that Plaintiffs appended to their complaint show that they believed — regardless of whether it was what actually happened — that someone other than Charles Momah was touching them, without their consent.
As such, the claims that Plaintiffs' denominated in their complaint as causes of action for failure to obtain informed consent and for medical negligence were properly recharacterized by the trial court as claims for battery. Accordingly, the applicable statute of limitation setting forth the allowable time for the filing of these claims is RCW 4.16.100(1), rather than RCW 4.16.350. The trial court properly concluded that "the tolling provision of RCW 4.16.350 does not apply," and that most of the claims that Plaintiffs denominated as claims for medical negligence and failure to obtain informed consent were untimely.
It remains for us to determine, however, whether Plaintiffs' other asserted causes of action stated independent claims for damages. They did not.
First, Plaintiffs alleged that Momah's actions violated the CPA. Private CPA claims are subject to a four-year statute of limitation. RCW 19.86.120. Accordingly, if Plaintiffs stated causes of action for violation of the CPA, at least some of the Plaintiffs' claims against Momah would have been timely.
"To establish a claim under the CPA five elements must be proven: (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) public interest impact, (4) injury to plaintiff in his or her business or property and (5) causation." Sing v. John L. Scott, Inc., 134 Wn.2d 24, 30, 948 P.2d 816 (1997) (citing Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 784, 719 P.2d 531 (1986)). Thus, because the injury must be to the complaining party's property interests, rather than person, to maintain a CPA claim in the medical context "there must be a showing of a lack of informed consent resulting from dishonest and unfair practices motivated by financial gain." Benoy v. Simons, 66 Wn. App. 56, 65, 831 P.2d 167 (1992) (emphasis added) (citing Quimby v. Fine, 45 Wn. App. 175, 724 P.2d 403 (1986)).
Even viewing the submissions to the trial court in the light most favorable to Plaintiffs, as we must, there is nothing whatsoever in the record indicating that any of Momah's alleged conduct, if indeed it occurred, was motivated by financial gain, or that he would have received any type of payment for his alleged batteries of Plaintiffs. Accordingly, Plaintiffs failed to demonstrate a genuine issue of material fact as to whether they established one of the required elements of their CPA claims. The trial court properly dismissed those claims.
Finally, Plaintiffs contend that the trial court erred by dismissing their claims for common law civil conspiracy. But "[c]haracterizing separate wrongful acts as having been committed in furtherance of a conspiracy . . . does not postpone accrual of claims based on individual wrongful acts. The crucial time for accrual purposes is when the plaintiff becomes aware that he is suffering from a wrong for which damages may be recovered in a civil action." 1A Stuart M. Speiser, et al., The American Law of Torts § 5:34, at 359 (1983). This has long been the law in Washington. See Seely v. Gilbert, 16 Wn.2d 611, 615, 134 P.2d 710 (1943) (where a cause of action for battery was barred by the statute of limitation, plaintiff could not evade dismissal by disguising it as one for conspiracy). Here, Plaintiffs' causes of action for common law civil conspiracy are wholly derivative of their claims for battery. They are not independent claims for damages. Plaintiffs may not evade the statutory bar to stale claims simply by pleading an allegation that Charles and Dennis Momah conspired to commit an intentional tort against them.
The trial court correctly concluded that the only claims properly alleged by Plaintiffs were claims for common law medical battery. The statute of limitation for battery, RCW 4.16.100(1), requires that actions be commenced no later than two years from when the cause of action accrues. Here, according to Plaintiffs' own sworn affidavits, all but one of them formed the belief that someone other than Charles Momah had treated them during the period that they were Charles Momah's patients. With respect to Basnaw, Geare, and the De La Cruzes, those periods cannot have been before the end of the limitation period because they ceased to be Charles Momah's patients more than two years before the date upon which they filed their complaint against Momah. McFarlane, who declared that she was treated by Charles Momah in 2003 and thus might have timely filed this action in February 2005, stated in a deposition that she concluded that she was being treated by someone other than Charles Momah no later than the end of 2002. Accordingly, any cause of action that she might have had against Momah accrued prior to the end of 2002, even if she in fact continued to be Charles Momah's patient into 2003. Because Basnaw, Geare, De La Cruz, and McFarlane failed to seek a remedy for their alleged injuries until after the expiration of the time allowed by law, their claims were untimely filed and the trial court did not err in so ruling. We affirm the order of dismissal with respect to Basnaw, Geare, the De La Cruzes, and McFarlane.
The record on appeal, however, does not indicate the date upon which plaintiff Hopkins first believed that she was being treated by someone other than Charles Momah. Rather, her declaration states that she was Charles Momah's patient "in the year 2003." No other submissions to the trial court show whether Hopkins developed a belief that she was being treated by someone other than Charles Momah prior to February 10, 2003, two years before the filing of Plaintiffs' complaint against Momah. Momah contends that it was Hopkins' burden to submit evidence to the trial court on this question. We disagree.
"The statute of limitations is an affirmative defense, and the burden is on the party asserting it . . . to prove the facts that establish it." Ives v. Ramsden, 142 Wn. App. 369, 386, 174 P.3d 1231 (2008). Moreover, on summary judgment, we draw "all reasonable inferences from those facts in the light most favorable to the nonmoving party." Anderson, 101 Wn. App. at 329. Based on the absence of evidence in the record as to when Hopkins developed a belief that she was being treated by someone other than Charles Momah, there is no basis for us to conclude that Momah met his burden of showing that Hopkins was on notice of a potential cause of action more than two years prior to filing her complaint. Thus, as to Hopkins, Momah's motion should not have been granted.
We remand this cause to the trial court for further proceedings, only with respect to Hopkins' cause of action for battery.
IV
Plaintiffs next contend that, even if the trial court correctly concluded that their only possible cause of action was one for common law battery, the trial court erred by failing to equitably toll the statute of limitation on their claims. This is so, according to Plaintiffs, because they could not have discovered the facts giving rise to their complaint until 2005, when their attorney informed them of Momah's identity in the attorney's consultations with them. This theory is unconvincing, however, given the allegations contained in Plaintiffs' own declarations to the trial court.
"The doctrine of equitable tolling . . . cannot afford relief to a plaintiff if the plaintiff has not exercised due diligence in pursuing one's rights." Hazel v. Van Beek, 135 Wn.2d 45, 61, 954 P.2d 1301 (1998) (citing Douchette v. Bethel Sch. Dist. 403, 117 Wn.2d 805, 811, 818 P.2d 1362 (1991)). Here, Plaintiffs' sworn statements, if they are to be credited, show that they believed that they were being treated by someone other than Charles Momah (and thus were alerted to a possible cause of action) while they were still Charles Momah's patients. Yet, notwithstanding the degree to which they now contend they were harmed by this alleged occurrence, they apparently took no action whatsoever to determine the identity of the purported imposter.
A plaintiff may toll the statute of limitation for suing an unnamed joint or concurrent tortfeasor by timely filing a complaint and serving an identified (and thus, named) co-defendant if the unnamed defendant can be identified with "reasonable particularity." Bresina v. Ace Paving Co., Inc., 89 Wn. App. 277, 281-282, 948 P.2d 870 (1997); see also Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 331, 815 P.2d 781 (1991). Here, we assume — without deciding — that identifying the alleged perpetrator as someone who conspired with Charles Momah to impersonate him would be such a sufficiently particularized identification so as to toll the statute of limitation upon commencement of an action against Charles Momah. Thus, there is no legitimate explanation for Plaintiffs' failure to timely commence an action against, at a minimum, Charles Momah and his employer, and then (if, as they claim, they had suspected that someone else had been impersonating Charles Momah) to utilize the discovery process to ferret out the alleged impostor's identity. See Bresina, 89 Wn. App. at 282. But Plaintiffs did not do this, let alone affirmatively attempt to determine of their own accord the identity of the man that they allege battered them. Instead, they inexplicably took no action on their claims until, in some cases, nearly ten years had passed since the initial alleged battery.
Plaintiffs are not entitled to tolling of the applicable statute of limitation on their claims because their own declarations, viewed in the light most favorable to them, indicate that they were on notice of facts justifying further action more than two years before they commenced this lawsuit. Because Plaintiffs failed to file suit in a timely fashion, their claims are barred by the applicable statutes of limitation. The trial court did not err by so concluding.
With respect to Tanya Basnaw, Tessa Geare, Leah De La Cruz, Anthony De La Cruz, and Amy McFarlane, the trial court's judgment is affirmed.
With respect to Danielle Hopkins, the trial court's judgment is reversed and this cause remanded for further proceedings.
We Concur