Opinion
No. 52343-1-I
Filed: August 23, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-12723-1. Judgment or order under review. Date filed: 04/18/2003. Judge signing: Hon. L Gene Middaugh.
Counsel for Appellant(s), William Frank Dippolito, William F Dippolito PS Inc, PO Box 5497, 1011 South L, Tacoma, WA 98415-0497.
Counsel for Respondent(s), Janine Elizabeth Leary, Lee Smart Cook Martin Patterson PS, One Convention Place, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Joel Evans Wright, Lee Smart Cook et al, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
A plaintiff ordinarily cannot prevail in a legal malpractice suit when, as happened here, the three year statute of limitations for filing the underlying medical negligence claim expires before she consults the lawyer. The statutory one-year discovery rule does not extend the limitation period in this case. The plaintiff reasonably should have discovered the causal relationship between the alleged medical malpractice and her damages almost four years before she consulted the lawyer.
The facts in the light most favorable to appellant Velinda Williams are as follows. Dr. Manuel Posada diagnosed Williams with morbid obesity and he referred her to surgeon Dr. David A. Simonowitz for a vertical banded gastroplasty, more commonly known as stomach stapling. Dr. Simonowitz performed the weight loss surgery at Overlake Hospital in January 1994. Shortly after the surgery, Williams began to have difficulties. By April 1994, Williams had been admitted to area hospitals on at least three separate occasions, complaining of a variety of symptoms, including pain, persistent vomiting, problems swallowing, and stomach numbness. Dr. Simonowitz told Williams that he could reverse the gastroplasty. Her physician Dr. Posada told her he thought the surgery should be reversed. On April 20, Williams was readmitted to Overlake hospital because of complications following the surgery. She remained hospitalized for three months. During this time, she suffered numerous and severe complications, including a seizure, heart attack and cortical infarct (tissue death resulting from lack of oxygen to her brain). She eventually required a permanent pacemaker for her heart. Williams was discharged in June 1994 to a long-term care nursing home with 10 final diagnoses, including Guillian-Barre syndrome, an inflammatory disorder of the peripheral nerves. In March 1998, more than four years after her stomach stapling surgery, Williams consulted with LaDonna Jones of the Kenneth B. Shellan Associates law firm regarding a possible medical malpractice claim. The statute of limitations governing claims for injuries resulting from health care is ordinarily three years, with provision for a one-year discovery rule:
Any civil action for damages for injury occurring as a result of health care which is provided after June 25, 1976 against:
(3) An entity, whether or not incorporated, facility, or institution employing one or more persons described in subsection (1) of this section, including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, employee, or agent thereof acting in the course and scope of his employment, including, in the event such officer, director, employee, or agent is deceased, his estate or personal representative; 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.
RCW 4.16.350(3) (emphasis added).
Jones advised Williams that the three-year limit had already expired. Jones agreed to represent Williams in order to conduct additional investigation into whether the one-year discovery rule allowed additional time.
Williams and Jones executed a generic contingent fee representation agreement on March 23, 1998. Jones retained Lori Stewart, a registered nurse, to evaluate Williams' medical records. Stewart compiled a medical chronology and report that she sent to Jones on June 10, 1998. According to Stewart's report, Williams' damages were attributable to nutritional deficits following prolonged vomiting, malnutrition, and starvation, and these deficits were attributable to physician negligence in failing to provide proper nutritional guidance after the surgery. Jones identified June 1999 — one year from the date of Stewart's report — as the deadline for filing a medical negligence claim, assuming that the report would furnish a basis for triggering the one-year discovery rule.
Jones left Shellan Associates in April 1999 to open her own practice. After Williams contacted Jones at her new law office, Jones wrote a letter, dated April 22, 1999, withdrawing from representation. Jones did not mail the letter herself, but instead delivered it to the Shellan law firm on or about April 23, 1999, to be mailed to Williams. According to Williams, she did not receive Jones' letter of withdrawal until the end of June 1999.
Williams filed a legal malpractice suit against Jones and Jones' former law firm in May 2002. Williams' theory was that because Jones negligently failed to give notice of withdrawal until the end of June, Williams was unable to file her medical malpractice claim within the applicable statute of limitations. Jones successfully moved for summary judgment in March 2003. Williams appeals.
We review an order granting summary judgment de novo. Hickle v. Whitney Farms, Inc., 107 Wn. App. 934, 29 P.3d 50 (2001). Summary judgment is proper if the record shows that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Green v. A.P.C., 136 Wn.2d 87, 94, 960 P.2d 912 (1998). A motion for summary judgment based on a statute of limitations should be granted only if the record demonstrates that there is no genuine issue of material fact as to when the statutory period commenced. Zaleck v. Everett Clinic, 60 Wn. App. 107, 110, 802 P.2d 826 (2001).
The question of when a patient reasonably should have discovered her injury was caused by medical negligence is normally a question of fact for the jury. Winbun v. Moore, 143 Wn.2d 206, 18 P.3d 576 (2001). Although questions of fact are normally the province of the trier of fact, questions of fact may be determined on summary judgment as a matter of law where reasonable minds could reach but one conclusion. Daugert v. Pappas, 104 Wn.2d 254, 257, 704 P.2d 600 (1985).
The plaintiff in Winbun suspected she had a cause of action for medical negligence against her family physician, emergency room physician, and the hospital where she was treated. She requested all her medical records from the hospital but was unaware that those provided to her were incomplete. Winbun filed suit days before the three-year statute of limitations expired. In the course of investigating her claim, she discovered the allegedly negligent involvement of a third physician, Dr. Epstein. Winbun joined Dr. Epstein as a co-defendant after the three-year statute of limitations had expired, but within one year of her discovery of Dr. Epstein's involvement. Dr. Epstein sought reversal of the verdict against him on the basis that Winbun's claim was untimely. The Supreme Court upheld the jury verdict. There was evidence that Winbun exercised due diligence in requesting her medical records, but did not receive all of them. And because she was heavily sedated at the time of her treatment, she had no reason to suppose Dr. Epstein had a role in causing her damages until she received the records identifying him. Under such circumstances, the Court held that the question of when Winbun should have discovered her cause of action against Epstein was a fact-specific inquiry properly reserved for the jury. Winbun, 143 Wn.2d at 218.
Williams contends that her case is like Winbun because she did not know the elements of her cause of action until she received Nurse Stewart's report. But the key consideration under a discovery rule is the factual, as opposed to the legal, basis of the cause of action. Adcox v. Children's Orthopedic Hospital, 123 Wn.2d 15, 35, 864 P.2d 921 (1993). If a plaintiff knows or has reason to know of the underlying factual elements of her claim, her ignorance of the proper legal theory will not be a defense to the running of the statute of limitations. Zaleck v. Everett Clinic, 60 Wn. App. 107, 113-14, 802 P.2d 826 (1991). As soon as Williams suffered damage, she was aware of all of the facts comprising the basis of a potential medical negligence claim against the physicians involved with her treatment.
Unlike the plaintiff in Winbun, she knew which physicians were involved. As Jones argues, the present case is governed not by Winbun, but rather by Zaleck. In November 1981, Dr. Varley of the Everett Clinic administered an injection into Zaleck's wrist after he suffered a work-related injury. Zaleck felt immediate intense pain in all five fingers. Dr. Varley explained that he might have hit a nerve. Zaleck experienced persistent numbness in his thumb. He underwent several surgical procedures over a three-year period. More than four years after the original injection, Zaleck filed suit. The clinic successfully moved for summary judgment on the issue of timeliness. Zaleck appealed. He argued that he did not discover the essential elements of his cause of action until he consulted an attorney. We rejected this argument and affirmed the trial court. The one year post-discovery period will not be invoked where the plaintiff had ready access to information that a wrong occurred but failed to exercise due diligence in pursuing a legal claim. Zaleck, 60 Wn. App. at 113. We concluded that Zaleck knew the facts comprising the causation and damage elements of a possible claim in November 1981 and as a matter of law, was not entitled to an extension of time under the discovery rule. Zaleck, 60 Wn. App. at 114.
Williams attempts to distinguish Zaleck by arguing that her injuries did not surface immediately after her surgery. This is not a material difference; they surfaced within a few months. She claims the cause, unlike in Zaleck, was not blatantly obvious. But her surgery severely reduced the size of her stomach to a fraction of its former size. She has offered no basis for a reasonable belief that her vomiting, problems swallowing, stomach numbness, and dehydration were caused by anything other than medical treatment associated with that surgery. And just as Zaleck's doctor immediately informed him that the injection might have hit a nerve, Williams' doctors informed her — when her symptoms appeared — that the gastroplasty could and should be reversed.
The only reasonable conclusion is that by June 1994 at the latest, Williams reasonably should have recognized the possibility that her damages were caused by negligent medical treatment associated with her surgery.
Therefore, the one-year discovery period expired in June 1995, not in June 1999. Because the one-year discovery period did not expire later than the three-year limitation, it is inapplicable. The applicable three-year statute of limitations began to run in 1994, the year she had the surgery and suffered complications. It had already expired by March 1998 when Williams first consulted Jones. The trial court properly granted summary judgment and dismissed her claim for legal malpractice.
The judgment is affirmed.
BECKER, KENNEDY and BAKER, JJ.