Winbun v. Moore
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 68967-9
Title of Case: Gail and Lee Winbun
v.
Jane A. Moore, M.D., et ux., et al.
File Date: 03/08/2001
Oral Argument Date: 10/24/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
King County;
96-2-10194-0
Honorable Kathleen J. Learned, Judge.
JUSTICES
--------
Authored by Faith E Ireland
Concurring: Charles Z. Smith
Charles W. Johnson
Gerry L. Alexander
Richard B. Sanders
Bobbe J. Bridge
Dissenting: Philip A. Talmadge
Barbara A. Madsen
Richard P. Guy
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Charles K. Wiggins
Wiggins Law Office
241 Madison Ave N
Bainbridge Is, WA 98110
Robert B. Gould
Law Office of Robert B Gould
2110 N Pacific St Ste 100
Seattle, WA 98103-9126
Charles K. Wiggins
Wiggins Law Office
241 Madison Ave N
Bainbridge Is, WA 98110
Robert B. Gould
Law Office of Robert B Gould
2110 N Pacific St Ste 100
Seattle, WA 98103-9126
Kenneth W. Masters
Wiggins Law Office
241 Madison Ave N
Bainbridge Is, WA 98110
Counsel for Respondent(s)
Thomas V. Harris
Merrick Hofstedt & Lindsey
710 9th Ave
Seattle, WA 98104-2017
Amicus Curiae on behalf of Washington State Trial Lawyers Assoc
Gary N. Bloom
Harbaugh & Bloom
P.O. Box 1461
Spokane, WA 99210
Gregg L. Tinker
Longfelder Tinker Kidman
First & Stewart Bldg.
101 Stewart St Ste 1010
Seattle, WA 98101-1048
Bryan P. Harnetiaux
517 E 17th Ave
Spokane, WA 99203-2210
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
GAIL WINBUN and LEE WINBUN, )
wife and husband, and )
the marital community composed thereof, )
)
Petitioners, ) No. 68967-9
v. )
) En Banc
JANE A. MOORE, M.D. and JOHN DOE ) MOORE, wife and husband, and
)
the marital community composed thereof; )
CARTER HILL, M.D. and JANE DOE )
HILL, husband and wife, and ) Filed March 8, 2001
the marital community composed thereof; )
and HIGHLINE COMMUNITY HOSPITAL, )
a Washington non-profit corporation, )
)
Defendants, )
)
H. STEPHEN EPSTEIN and JANE DOE )
EPSTEIN, husband and wife, and )
the marital community composed thereof, )
)
Respondents. )
)
IRELAND, J. - Petitioner Gail Winbun sought review of a Court of
Appeals' decision reversing a jury verdict which awarded her damages for
negligent medical care provided by Dr. Stephen Epstein. Finding that there
is substantial evidence to sustain the jury's verdict that the cause of
action was timely filed, we reverse the Court of Appeals and reinstate the
trial court's judgment against Epstein.
ISSUES
This case presents the following issues:
(1) Whether there is substantial evidence that the plaintiff
commenced her professional negligence action against Epstein within one
year of the date that she discovered or with due diligence should have
discovered the factual basis of her claim; and
(2) Whether knowledge of suspected professional negligence as to one
health care provider necessarily triggers the medical malpractice discovery
rule of RCW 4.16.350 as to all other health care providers who treated the
plaintiff.
FACTS
Gail Winbun (Winbun) initially filed a medical malpractice action
against her family physician, emergency room physician, and the hospital
where she was treated. The action was commenced within the three-year
limitation period set by statute. Subsequently, Winbun's attending
physician, Dr. Stephen Epstein (Epstein), was joined as a codefendant.
Epstein asserts that Winbun's claim against him was untimely.
In March of 1993, Winbun consulted her family physician, Dr. Jane Moore
(Moore), about complaints of chest and abdominal pain, nausea, back pain,
and vomiting. During March and April, she saw Moore several times,
complaining of continued burning in her stomach. Moore noted Winbun's
symptoms of dyspepsia (indigestion) and elevated blood pressure. She
advised Winbun to decrease stress, smoking, and caffeine, and she
recommended over-the-counter antacids. When Winbun's symptoms persisted,
Moore prescribed medication.
On April 17, 1993, Winbun, complaining of severe abdominal pain,
nausea, and difficulty breathing, was transported by ambulance to Highline
Community Hospital (Highline). She was diagnosed by Highline emergency
room physician, Dr. Carter Hill (Hill), with pelvic inflammatory disease
(PID). Hill prescribed antibiotics and pain medication, and Winbun was
discharged.
Winbun's condition worsened, and around noon on April 19, 1993,
Winbun's husband took her back to the emergency room at Highline. Because
of his previous diagnosis of PID, Hill telephoned Highline's on-call
obstetrician/gynecologist, Dr. Epstein, to admit and treat Winbun. Epstein
testified that Hill did not provide Winbun's signs and symptoms, and
Epstein did not come to the hospital to examine Winbun.
Epstein received several calls from the nursing staff regarding
Winbun's condition during the evening. At 9:30 p.m., Winbun was
transferred to the telemetry unit. At 10:30 p.m., Epstein was advised that
Winbun's kidneys were failing. He did not come to the hospital, but
ordered treatment and requested an examination by the on-call cardiologist
because of Winbun's rapid heartbeat.
The cardiologist consulted with Dr. Marcia Gonzalez (Gonzalez), the on-
call surgeon. Gonzalez examined Winbun at about 3 a.m., determined that
immediate surgery was needed, and called Epstein. Epstein arrived at the
hospital about 30 minutes later and began surgery, with Gonzalez assisting.
The initial exploratory laparotomy revealed that Winbun's medical problems
were not gynecological. Thereafter, Gonzalez took over and discovered a
perforated gastric ulcer with more than two liters of brownish pus in
Winbun's abdominal cavity.
Following the surgery, Winbun remained in the hospital for two months.
She required additional surgery due to continued infection. A feeding tube
was inserted into her small intestine, a breathing tube was placed in her
throat, and a nasal-gastric tube was inserted into her stomach. She
suffered kidney failure and developed adult respiratory distress syndrome
(a pulmonary condition) and a stricture (narrowing) of her esophagus.
Winbun testified that, from the beginning, she felt that one of her
doctors may have made a mistake. She suspected Moore had misdiagnosed her
condition. However, she was reluctant to pursue the matter because she
liked and respected Moore.
In early 1994, Winbun obtained some of her medical records from Highline,
including records for April 17 and partial records for April 19 and 20,
1993. Winbun did not request records for her subsequent hospitalization.
Two years after her hospitalization, on June 12, 1995, Winbun met with
Attorney Robert Gould (Gould) to discuss the possibility of bringing a
medical negligence suit. Winbun gave Gould the medical records she had
obtained, but she asked him not to investigate the claim at that time
because she was not certain that she wanted to sue Moore.
In January of 1996, Winbun authorized Gould to seek the opinion of Dr.
Robert Nielsen (Nielsen) regarding Winbun's medical care. Winbun testified
that she discussed only the potential liability of Moore with Gould; she
had no reason to believe that Epstein might have been negligent. Based on
his review of the records that Winbun had obtained from the hospital,
Nielsen opined "that Dr. Jane Moore and Dr. Carter Hill deviated from the
minimum standard of care of reasonable physicians in the same or similar
circumstances in their failure to correctly diagnose and treat their mutual
patient, the Plaintiff, Gail Sandra Winbun." Clerk's Papers at 57.
PROCEDURAL HISTORY
Winbun formally retained Gould on February 26, 1996, and her action
against Moore, Hill, and Highline was commenced on April 12, 1996. The
three-year statute of limitations expired on April 20, 1996.
On October 14, 1996, counsel for Highline asked Gould why Epstein had
not been named as a defendant in the action. After the question was
raised, Winbun instructed Nielsen to review all of her medical records to
determine whether Epstein had acted negligently in her treatment. Nielsen
opined that Epstein's conduct constituted a marked departure from the
standard of care, was negligent, and had led to increased difficulties for
Winbun. On November 6, 1996, Winbun amended the complaint to join Epstein
as a codefendant.
Before trial, Epstein sought dismissal of the action, contending that
Winbun did not timely file her cause of action against him as a matter of
law. In opposition to Epstein's motion for summary judgment, the affidavit
of Dr. Gary B. Harris (Harris) was presented. In his affidavit, Harris
stated that although Epstein's negligence would be clear to a physician
experienced in drafting and reading hospital records, it would not be
apparent to a lay person. The court denied Epstein's motion. At the close
of Winbun's case and at the close of trial, Epstein moved for a directed
verdict on the statute of limitations issue. The trial court denied both
motions.
Winbun, who was heavily sedated in the hospital, testified that she
remembered few details from April 19 and 20, 1993. She also testified that
she thought Dr. Gonzalez was "a saint in my life" and that "Dr. Epstein was
right underneath because he helped save me that day at surgery." Verbatim
Report of Proceedings at 1157.
Before the case was submitted to the jury, Winbun settled with Hill
and Highline. In the special verdict following a two-week trial, the jury
awarded damages to Winbun, finding that Epstein's negligence proximately
caused 60 percent of those damages.1 The trial court entered judgment for
Winbun against Epstein in the amount of $807,629.93 plus costs. Epstein
appealed, contending that the trial court erred in denying his motions for
directed verdict based on the expiration of the statute of limitations.
The Court of Appeals reversed and remanded with instructions to vacate the
judgment against Epstein and dismissed him as a codefendant with prejudice.
This court granted Winbun's petition for review of the Court of Appeals'
decision.
ANALYSIS
Standard of Review
The determination of when a plaintiff discovered or through the
exercise of due diligence should have discovered the basis for a cause of
action is a factual question for the jury. Crisman v. Crisman, 85 Wn. App.
15, 23, 931 P.2d 163 (1997). "When a trial court denies summary judgment
due to factual disputes, . . . and a trial is subsequently held on the
issue, the losing party must appeal from the sufficiency of the evidence
presented at trial . . . ." Adcox v. Children's Orthopedic Hosp. & Med.
Ctr., 123 Wn.2d 15, 35 n.9, 864 P.2d 921 (1993).
In the present case, a factual dispute was presented to the jury: At
what point did Winbun discover or should she have discovered the elements
of her medical malpractice claim against Epstein? The jury specifically
found that Winbun and her attorney neither discovered nor with due
diligence should have discovered the factual basis of Winburn's claim more
than one year before she filed the action against Epstein.2
"In reviewing this finding, as with any other jury verdict, we must
determine whether it is supported by sufficient evidence." Adcox, 123
Wn.2d at 35 (footnote omitted). Therefore, this court reviews the jury's
verdict on the statute of limitations issue under the sufficiency of the
evidence standard: "The record must contain a sufficient quantity of
evidence to persuade a rational, fair-minded person of the truth of the
premise in question." Canron v. Fed. Ins. Co., 82 Wn. App. 480, 486, 918
P.2d 937 (1996).
The Statute of Limitations
RCW 4.16.350, the statute of limitations governing professional negligence
claims against health care providers, states, in pertinent part, as
follows:
Any civil action for damages for injury occurring as a result of health
care . . . based upon alleged professional negligence {absent proof of
fraud, intentional concealment, or the presence of a foreign body not
intended to have a therapeutic or diagnostic purpose or effect} 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.
The statute provides two alternative limitations periods. Actions must
either be commenced within three years of the alleged injury-causing act or
omission, or within one year from the time the plaintiff discovers or
reasonably should have discovered that the injury was caused by the act or
omission (the discovery rule), whichever is later.3
Since it is undisputed that Winbun filed her cause of action against
Epstein more than three years after Epstein last treated her, the issue
before us is whether Winbun satisfied the requirements of the discovery
rule provided by RCW 4.16.350. In this case, the statutory discovery rule
must
be analyzed and applied where a plaintiff was treated by multiple health
care providers.
Substantial Evidence
The trial court found genuine issues of material fact regarding
application of the discovery rule to the claim against Epstein and
submitted the issue to the jury. The jury specifically found that Winbun
and her attorney neither discovered, nor with due diligence reasonably
should have discovered, the factual basis of her claim against Epstein more
than one year before the action was commenced against him. Therefore,
Winbun had commenced her action within one year of her discovery that her
injuries may have resulted from Epstein's wrongful conduct, and her claim
was not barred by the statute of limitations.
The Court of Appeals ruled that the one-year discovery period commences
when the patient knows or reasonably should know that her injuries were
caused by medical malpractice, regardless of whether the patient knows or
reasonably should know the alleged tortfeasor's identity. Thus, Winbun's
claim against Epstein is barred as a matter of law. The Court of Appeals
held as follows:
{W}hen relying on RCW 4.16.350(3)'s delayed discovery rule, a plaintiff
must investigate and identify all possible defendants within one year of
when the plaintiff first suspects that his or her injuries were caused by
medical malpractice: "The identity of the practitioner who committed the
alleged malpractice is one of the facts that the plaintiff must
investigate, and discover, once she has reason to believe that she is the
victim of medical malpractice."
Winbun v. Moore, 97 Wn. App. 602, 611, 982 P.2d 1196 (1999) (quoting
Flowers v. Walker, 63 Ohio St. 3d 546, 589 N.E.2d 1284, 1288 (1992)).
The Court of Appeals reasoned that because Winbun testified that she
suspected her injuries were caused by medical malpractice early on, and
because Dr. Epstein's negligence could have been easily discovered by an
expert reviewing a complete set of Winbun's medical records, her failure to
include Epstein in her malpractice suit against the other health care
providers until after the statute of limitations had run barred her claim
as a matter of law. The appellate court stated that "{i}t is of absolutely
no consequence . . . that she reasonably thought that only Drs. Moore and
Hill caused her injuries." Winbun, 97 Wn. App. at 612.
The appellate court concluded that there was no substantial evidence to
sustain the jury's special verdict that Winbun did not discover, nor with
due diligence reasonably should have discovered, the factual basis of the
essential elements of the potential cause of action against Dr. Epstein
more than one year before she filed her claim. Id. at 603-04. "Thus, the
trial court should have granted Dr. Epstein's motions for directed verdict
based on the expiration of the statute of limitations." Id. at 613.
The parties dispute whether the medical records obtained by Winbun
establish that she "discovered or reasonably should have discovered" that
her injuries were caused by Epstein's negligent act or omission. Winbun
testified that she could not determine from the limited records she
received that Epstein had been negligent. Epstein asserts that the records
obtained by Winbun fully detailed the medical care he provided.
Epstein's claim that the records obtained by Winbun are "the relevant,
and only, records relating to the care which Dr. Epstein provided" is
incorrect. Answer to Pet. for Review at 4. Winbun made a written request
for copies of all medical records of her treatment at Highline for April
17, 19, and 20, 1993 (Authorization to Release Patient Medical
Information). Winbun testified that Exhibits 20 and 21, which were
admitted at trial, contained all of the records sent to her following the
request. The records Winbun received did not include the following
significant documents relating to Winbun's admission and care on April 19:
ER Physician Report; Emergency Room Admission Note; Physician's Order
Sheet; Nursing Assessment Narrative Addenda; and Daily Critical Care
Nursing Progress Record. The omitted documents are significant to a
determination of Epstein's negligence. They include the time Hill admitted
Winbun to the medical floor and notified Epstein (when Winbun became
Epstein's patient), Epstein's initial admission orders for Winbun's care
(taken by Hill over the telephone from Epstein), the nurses' evening
observations of Winbun's signs of shock and deteriorating condition, and
the nurses' attempts to contact Epstein.
It is arguable that the missing documents obscured Winbun's ability to
determine the nature and extent of Epstein's care. The record supports the
premise that Winbun exercised reasonable diligence in requesting her
treatment records. Reasonable minds could differ as to whether Winbun
discovered or should have discovered the factual basis of the elements of
her claim against Epstein more than one year before she filed the action
against him. The Court of Appeals erred in taking this issue from the jury
and in deciding as a matter of law that her cause of action was barred by
the statute of limitations. Substantial evidence supports the jury's
verdict.
Interpretation of the Statute of Limitations
The Court of Appeals interprets the statute of limitations to mean
that the one-year discovery period begins to run when the plaintiff
discovers or reasonably should have discovered that his or her injury was
caused by the medical malpractice of any doctor. However, the language of
the statute does not support this interpretation. Rather, the discovery
rule is triggered by a plaintiff's discovery of "said act or omission"-the
act or omission that caused the injury. In the case of multiple health
care providers and injuries, the plaintiff's knowledge of an act or
omission by one health care provider that triggers the discovery rule does
not necessarily trigger the rule as to all providers who treat the
plaintiff.
The Court of Appeals states as follows:
Notably, the statute does not reference the point in time that the
plaintiff discovers or reasonably should have discovered the alleged
tortfeasor's identity. Instead, it references the point in time that the
plaintiff discovers or reasonably should have discovered that his or her
injury was caused by medical malpractice. We conclude that RCW 4.16.350(3)
does not toll the statute of limitations until one year after the plaintiff
discovers or reasonably should have discovered the alleged tortfeasor's
identity.
Winbun, 97 Wn. App. at 610. However, this analysis is misplaced. That
Epstein was a health care provider who provided treatment at the time
Winbun was injured was fully known at the filing of the initial complaint.
There was no failure to identify. It was the lack of knowledge of any act
or omission by Epstein which caused the injury that resulted in Epstein not
being named as an original defendant.
When Winbun requested her medical records for treatment she received
on April 17, 19, and 20, had she been provided with all of the records, it
might have been reasonable to take the case from the jury. However, Winbun
was neither provided all the records of Epstein's treatment nor advised
that other records for her treatment on April 19 existed. Under those
circumstances, whether Winbun acted reasonably or should have discovered
the negligence at an earlier time is a fact-specific inquiry properly
reserved for the jury.
In addition, the Court of Appeals' decision in the case before us is
difficult to reconcile with the same court's decision in Lo v. Honda Motor
Co., 73 Wn. App. 448, 869 P.2d 1114 (1994). In that case, when the
pregnant plaintiff, Elizabeth Lo (Lo), started the engine of her Honda car,
the vehicle suddenly accelerated uncontrollably. Lo was unable to stop the
vehicle with the brakes alone, so she thrust the gear-shift lever backward
and forward in an effort to kill the engine. Before the engine died, she
was thrashed about violently by the jerking of the vehicle. Soon after the
incident, she experienced vaginal bleeding and premature contractions. One
month later, she gave birth to her son prematurely. The child was
diagnosed as a spastic quadriplegic with cerebral palsy.
Lo related her son's injuries to his premature birth-which she
believed was caused by the physical trauma she received in her car. Within
three years of the car incident, Lo commenced a product liability lawsuit
against Honda, alleging that her car was defective and caused the accident
that led to her child's premature birth and cerebral palsy.
An expert physician later opined that medical negligence had caused or
contributed to the child's condition. More than four year's after her
son's birth, Lo amended the complaint against Honda to add the hospital and
treating doctors as additional defendants.
In Lo, the plaintiff believed that the negligence of one entity, Honda
Motor Company, caused the injury. The court declined to hold as a matter
of law that her belief also commenced the discovery period as to the other
potential defendants, the hospital and the doctors who delivered the child.
Rather, the court stated that there may not be a duty as a matter of law to
inquire specifically about the possibility of medical malpractice "where
there is another facially logical explanation" for the injury. Lo, 73 Wn.
App. at 456.
The Lo court declined to apply the general rule it applied in the case
now before us-knowledge the plaintiff presumably would have discovered, if
she had timely made the necessary inquiry, must be imputed to the plaintiff
as a matter of law. Id. at 460; Winbun, 97 Wn. App. at 608, 611.
Application of the general rule may be appropriate where injured plaintiffs
do little to pursue their potential claims. See, e.g., Zaleck v. Everett
Clinic, 60 Wn. App. 107, 114, 802 P.2d 826 (1991) (plaintiff who knew of
his injury but failed to inquire of either a doctor or a lawyer was deemed
to have failed to exercise due diligence); Reichelt v. Johns-Manville
Corp., 107 Wn.2d 761, 768-73, 733 P.2d 530 (1987) (plaintiff who knew he
had asbestosis and the cause of the disease failed to timely pursue claim);
Gevaart v. Metco Constr., Inc., 111 Wn.2d 499, 760 P.2d 348 (1988)
(plaintiff injured by improperly constructed step failed to timely pursue
claim). However, that is not the situation in Lo or the instant case. In
Lo, the court determined that the appropriate inquiries an injured
plaintiff must make depend on the circumstances of the case-due diligence
was a question for the trier of fact. Lo, 73 Wn. App. at 464.
Like Lo, Winbun was faced with a "facially logical explanation" for
her injuries-delay of appropriate treatment due to the initial misdiagnosis
of her condition by her family physician and later misdiagnosis by the
emergency room physician. While in the hospital, Winbun was heavily
sedated and unaware of Epstein's full role in her care. She later
understood that a team of surgeons had saved her life. Although Epstein's
name appears in her hospital records, so do the names of several other
hospital physicians who treated her. From the medical records that Winbun
received, it was not readily apparent that Epstein's conduct delayed
appropriate treatment.
The instant case differs significantly from Lo. In that case, the
multiple possible causes of harm were of different types-defective product
and malpractice. In this case, multiple causes of harm are of the same
type-malpractice, but by different doctors. Nevertheless, the rationale of
Lo should also be applicable here. The reasonableness of Winbun's failure
to inquire into Epstein's negligence, given the presence of another
facially logical explanation for her injuries, is properly a question for
the jury.
Public Policy Consideration
Finally, Amicus Curiae Washington State Trial Lawyers Association
Foundation argues that the Court of Appeals' interpretation could lead to
unjust results:
The reality is that evidence that other non-party health care
providers-doctors, nurses, laboratory and radiology professionals-might
have been negligent frequently does not surface until a case progresses
through discovery, including the stage at which treating and forensic
experts are deposed. This is true even when a plaintiff exercises utmost
care to discover all negligent health care providers with due diligence and
dispatch. Not infrequently, the particular acts or omissions of other, non-
party health care providers fail to surface despite vigorous investigation
and discovery.
Br. of Amicus at 15.
Amicus asserts that the wording of RCW 4.16.350 properly anticipates
complex medical malpractice litigation that involves multiple health care
providers in that the statute "dictates that a plaintiff have actual or
constructive knowledge of the acts or omissions of a discrete health care
provider before the discovery rule is triggered as to that particular
provider." Id. at 15-16 (emphasis added). The Court of Appeals has
imposed an all-encompassing duty to "investigate and identify all possible
defendants within one year of when the plaintiff first suspects that his or
her injuries were caused by medical malpractice." Winbun, 97 Wn. App. at
611.
Contrary to the view of the Court of Appeals, amicus argues that
failure to individualize the malpractice discovery rule can be unduly harsh
where a plaintiff, despite due diligence, could not have discovered the
acts or omissions of a particular health care provider within the one-year
discovery period. This is especially serious in medical malpractice cases
where there is a vast difference between what can be uncovered from
"investigation" as opposed to "discovery." No health care provider is
required to meet with plaintiff's counsel to explain his or her actions
prior to a lawsuit. Only when a suit commences are witnesses subject to
subpoena and examination under oath.
Amicus also recognizes that a particularized application of the
malpractice discovery rule is consistent with the concept "that there may
be more than one proximate cause of an injury." Br. of Amicus at 14.
Thus, a separate discovery rule would properly "apply to the acts or
omissions of each health care provider who is alleged to have been a
proximate cause of a plaintiff's injury." Id.
Aside from the issues raised by amicus, we are concerned that
application of the rule as propounded by the Court of Appeals could
encourage a "guilt by association" approach to medical malpractice claims.
The rule adopted by the appellate court could lead to suing any health care
providers identified with the treatment which injured the plaintiff-whether
or not specific acts or omissions could be attributed to such providers at
the time the suit was commenced. Because of the possibility that such acts
or omissions might later be determined in discovery, the temptation would
be to sue first and conduct discovery later. Such a practice would run
counter to CR 11, which requires "that to the best of the party's or
attorney's knowledge, information, and belief, formed after reasonable
inquiry {every pleading, motion, and legal memorandum} is well grounded in
fact and is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law." CR 11.
Under an individualized application of the discovery rule, those who
provided health care where malpractice is alleged, but where no acts or
omissions have been identified as to their conduct during investigation,
would be spared unnecessary involvement in the litigation.
Independent Basis for Reversal
Epstein asserts that in addition to the statute of limitations argument,
there is another independent basis for reversal-lack of evidence of
proximate cause. Epstein states: "The trial court erred in allowing Mize
Conner, M.D., the plaintiff's gynecologic expert, to testify on damage-
causation issues involving pulmonary and gastroenterologic conditions."
Answer at 19. He concludes that "the Court of Appeals would have dismissed
this matter with prejudice on that ground alone." Id.
During trial, Winbun's counsel asked Conner to state his opinion of the
damages caused by Epstein's acts and omissions. Epstein's counsel objected
to the lack of foundation, and the court sustained the objection. After
Winbun's counsel laid foundation, Epstein's counsel again objected, and the
court overruled the objection.
Conner then testified about Winbun's postoperative condition. The trial
court did not abuse its discretion in admitting the testimony of Conner
under ER 702.
Epstein's counsel cross-examined Conner at some length about his causation
testimony. Later, in his case in chief, Epstein called Dr. Kenneth P.
Steinberg, who gave detailed contrary opinions concerning causation of
adult respiratory distress syndrome. It was for the jury to weigh the
experts' testimony.
CONCLUSION
"{W}hen a patient or representative reasonably should have discovered
the injury was caused by medical negligence is normally an issue of fact."
Adcox, 123 Wn.2d at 34-35. In the case before us, reasonable minds could
have found that Winbun commenced her action within one year of when Winbun
and Gould discovered or should have discovered the factual basis of the
cause of action against Epstein. The Court of Appeals erred in taking this
issue from the jury. Substantial evidence supports the jury's verdict.
The Court of Appeals' interpretation of RCW 4.16.350 is contrary to
the language of the statute, and its holding in the case before us cannot
be reconciled with its own decision in Lo v. Honda Motor Company. Both the
statutory language and the prior case law support the holding that
knowledge of suspected professional negligence as to one health care
provider does not of necessity trigger the medical malpractice discovery
rule of RCW 4.16.350 as to all other health care providers who also treated
the plaintiff. In addition, the Court of Appeals' decision could lead to
unjust results in medical malpractice litigation that involve multiple
health care providers.
In summary, (1) substantial evidence supports the jury's verdict; (2)
the appellate court's interpretation of RCW 4.16.350 is contrary to the
language of the statute; (3) the holding cannot be reconciled with existing
case law; and (4) the decision could lead to unjust results in medical
malpractice litigation involving multiple health care providers.
Therefore, the Court of Appeals is reversed, and the judgment on the jury
verdict is reinstated.
1The jury was instructed that Hill was negligent as a matter of law; Hill
was found responsible for 40 percent of Winbun's damages. The jury found
that Dr. Moore was negligent, but that her negligence was not a proximate
cause of Winbun's damages. The jury also attributed contributory
negligence to Winbun, but found that the plaintiff's negligence was not a
proximate cause of her damages.
2The jury's Special Verdict Form included the following question:
QUESTION NO. 8: Did either Mr. or Mrs. Winbun and/or Mr. Robert Gould
discover, or with due diligence reasonably should they have discovered, the
factual basis of the essential elements of the Plaintiff's potential claim
against Dr. Epstein prior to November 6, 1995?
Answer "yes" or "no."
Answer: No
Clerk's Papers at 345.
3The discovery rule provision of RCW 4.16.350 replaces the common law
discovery rule announced in Ruth v. Dight, 75 Wn.2d 660, 453 P.2d 631
(1969). The statute also contains an eight-year repose period; this
provision, however, was declared unconstitutional by this court in DeYoung
v. Providence Medical Center, 136 Wn.2d 136, 960 P.2d 919 (1998).
Dissent by Talmadge, J.
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 68967-9
Title of Case: Gail and Lee Winbun
v.
Jane A. Moore, M.D., et ux., et al.
File Date: 03/08/2001
Oral Argument Date: 10/24/2000
SOURCE OF APPEAL
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Appeal from Superior Court,
King County;
96-2-10194-0
Honorable Kathleen J. Learned, Judge.
JUSTICES
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Authored by Faith E Ireland
Concurring: Charles Z. Smith
Charles W. Johnson
Gerry L. Alexander
Richard B. Sanders
Bobbe J. Bridge
Dissenting: Philip A. Talmadge
Barbara A. Madsen
Richard P. Guy
COUNSEL OF RECORD
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Counsel for Petitioner(s)
Charles K. Wiggins
Wiggins Law Office
241 Madison Ave N
Bainbridge Is, WA 98110
Robert B. Gould
Law Office of Robert B Gould
2110 N Pacific St Ste 100
Seattle, WA 98103-9126
Charles K. Wiggins
Wiggins Law Office
241 Madison Ave N
Bainbridge Is, WA 98110
Robert B. Gould
Law Office of Robert B Gould
2110 N Pacific St Ste 100
Seattle, WA 98103-9126
Kenneth W. Masters
Wiggins Law Office
241 Madison Ave N
Bainbridge Is, WA 98110
Counsel for Respondent(s)
Thomas V. Harris
Merrick Hofstedt & Lindsey
710 9th Ave
Seattle, WA 98104-2017
Amicus Curiae on behalf of Washington State Trial Lawyers Assoc
Gary N. Bloom
Harbaugh & Bloom
P.O. Box 1461
Spokane, WA 99210
Gregg L. Tinker
Longfelder Tinker Kidman
First & Stewart Bldg.
101 Stewart St Ste 1010
Seattle, WA 98101-1048
Bryan P. Harnetiaux
517 E 17th Ave
Spokane, WA 99203-2210
Dissent by Talmadge, J.
No. 68967-9
TALMADGE, J.* (dissenting) - I dissent in this case because the majority
lends further confusion to when a civil cause of action in Washington
accrues for purposes of a discovery rule associated with a statute of
limitations. Moreover, the majority gives short shrift to numerous
Washington cases that have addressed and resolved the issue of when a
person should have known of the existence of a cause of action. The
discovery rule in RCW 4.16.350 is intended to strike a balance between the
needs of patients to obtain legal relief for the later discovered
consequences of medical malpractice and the needs of doctors to extinguish
stale claims after a reasonable limitation period has elapsed. The
majority upsets this careful balance. I would affirm the Court of Appeals
decision that Gail Winbun knew or should have known of her cause of action
against Dr. Stephen Epstein long before her action was actually filed in
superior court, and that her cause of action is barred under RCW 4.16.350.
The majority has recounted the facts of this case accurately. Winbun's
perforated ulcer was misdiagnosed by her family physician in early 1993.
This misdiagnosis continued even though Winbun was treated on April 17,
1993, in the emergency room (ER) at Highline Community Hospital; the ER
physician misdiagnosed Winbun's condition as pelvic inflammatory disease.
Seen again at the ER on April 19, 1993, the misdiagnosis continued even
though Dr. Epstein, an obstetrician/gynecologist, assumed responsibility
for Winbun's care. It was not until April 20, 1993, during emergency
surgery, that Winbun's condition was properly analyzed. There is little
question Winbun's subsequent hospitalization and posthospitalization
disorders resulted at least in part from this improper diagnosis and
treatment.
Candidly, it is difficult to see Dr. Epstein's actions here in a
sympathetic light. Not only did he fail to properly diagnose Winbun's
condition, he neglected to even come to the hospital to personally attend
to Winbun, despite numerous calls from the hospital nursing staff. Dr.
Epstein did not answer the calls because, for at least part of the time in
question, he had turned off his beeper. But Dr. Epstein's obvious
negligence must be considered in the context of the statute of limitations
issue.
It is essentially undisputed in this case that the key events occurred
April 17-20, 1993. We also know Winbun obtained some of her hospital
records for April 17-20, 1993, in early 1994. While not her complete
hospital file, the records clearly referenced Dr. Epstein's involvement in
her case as treating physician, admitting physician, and surgical
assistant.
Winbun, a former legal secretary, met with three sets of attorneys
regarding a potential lawsuit. She met with Robert Gould on June 12, 1995.
She told him to take no action. She ultimately gave him authority to
proceed to investigate a medical malpractice claim on her behalf in January
1996. Gould sought the evaluation of a medical expert who opined that
Winbun's family physician and the ER physician were negligent. Gould
finally filed a lawsuit against those physicians and Highline Community
Hospital on April 12, 1996, just one week before the three-year limitation
period elapsed.
In the course of discovery in the case, Winbun herself testified she knew
something was wrong with her treatment in April 1993; she felt 'deep in my
heart,' 'from the very beginning,' negligence was involved. Report of
Proceedings at 1143, 1149. She knew her family physician was negligent at
least by June 1993.
Upon a suggestion from one of the hospital attorneys, attorney Gould sought
an expert evaluation of Dr. Epstein's negligence in October 1996.1 The
expert evaluated Dr. Epstein's care of Winbun and described his negligence
in no uncertain terms.2 Within three weeks (November 6, 1996), Gould was
able to secure this expert opinion and amend Winbun's complaint to assert a
malpractice cause of action against Dr. Epstein.
Classically, the discovery rule offers a special rule for the accrual of
causes of action for purposes of a statute of limitations. The rule has
generally been applied in professional negligence and product liability
cases where an injured person cannot learn of one of the key elements of
his or her cause of action until the normal limitation period had expired.
See, e.g., Ruth v. Dight, 75 Wn.2d 660, 453 P.2d 631 (1969) (physician left
sponge in patient's body during surgery and symptoms relating to sponge did
not manifest themselves until after the traditional statute of limitations
expired); White v. Johns-Manville Corp., 103 Wn.2d 344, 693 P.2d 687 (1985)
(asbestosis is asymptomatic for a very long latency period; discovery rule
is appropriate because plaintiff cannot know of injury until condition is
symptomatic).
In the case of medical malpractice claims, the Legislature enacted RCW
4.16.350, which states in pertinent part:
Any civil action for damages for injury occurring as a result of health
care which is provided after June 25, 1976 against: {a health care
provider} . . . 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, 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.
In effect, under RCW 4.16.350, the injured person has three years from the
date of the negligence or one year from the discovery of the specified
aspects of their case to act. The statutory discovery rule supersedes
Ruth's common law discovery rule for medical malpractice cases. Gunnier v.
Yakima Heart Ctr., Inc., 134 Wn.2d 854, 861-64, 953 P.2d 1162 (1998).
Here, insofar as the commencement of the action against Dr. Epstein on
November 6, 1996 is more than three years after the April 1993 events, the
only aspect of RCW 4.16.350 at issue is the one year discovery rule period
in the statute.
By its terms, RCW 4.16.350 provides an injured person must sue within
one year of actually discovering (a) the person had an injury or condition
(b) caused by (c) a health care provider's negligent act or omission. The
cause of action is also barred if a suit is brought more than one year
after the person 'reasonably should have' discovered these factors;
analyzed under an objective test.
As a matter of law, in fact, by her own admission, Winbun knew in
early 1994 she had been the victim of medical malpractice and such
malpractice was the cause of her consequent injuries and hospitalization.
She and the majority contend, however, a plaintiff must effectively
identify the person who caused the plaintiff's injury or condition before
the plaintiff can be said to have discovered his or her cause of action.
This has never been the law in Washington.
In Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 765, 733 P.2d 530
(1987), the plaintiff ultimately sued 28 asbestos manufacturers in 1980 for
his injuries associated with asbestos exposure. Reichelt knew in 1971 he
had asbestosis caused by exposure to asbestos products. He left his work
due to asbestosis in 1974 and protested the closing of his industrial
insurance claim in 1976 stating his understanding of the disease and his
limitations. We held Reichelt should have known of his cause of action, as
a matter of law, long before he filed his lawsuit, even though he did not
know the identity of all the manufacturers; we approved of the Court of
Appeals disposition of the discovery rule issue:
That court {the Court of Appeals} further decided that Reichelt knew
the identities of 14 of the 28 defendants by 1974, at the time he quit his
job installing asbestos insulation. It also concluded that by the exercise
of reasonable diligence, he could have determined the identities of the
other manufacturers by October 20, 1977 and also could have ascertained
whether their products reached him without substantial change.
107 Wn.2d at 771.
Under the discovery rule, the plaintiff's cause of action for medical
malpractice accrues when the plaintiff knew or should have known the
essential statutory elements articulated in RCW 4.16.350. Gevaart v. Metco
Constr., Inc., 111 Wn.2d 499, 760 P.2d 348 (1988); In re Estate of Hibbard,
118 Wn.2d 737, 826 P.2d 690 (1992); Allen v. State, 118 Wn.2d 753, 826 P.2d
200 (1992). Under the objective prong of the test, the plaintiff 'should
have known' when he or she is placed on notice that the statutory elements
are in place, and the plaintiff is charged with what a reasonable inquiry
would have discovered at that time. As we recently stated in Green v.
A.P.C., 136 Wn.2d 87, 96, 960 P.2d 912 (1998):
The general rule in Washington is that when a plaintiff is placed on notice
by some appreciable harm occasioned by another's wrongful conduct, the
plaintiff must make further diligent inquiry to ascertain the scope of the
actual harm. The plaintiff is charged with what a reasonable inquiry would
have discovered. '{O}ne who has notice of facts sufficient to put him upon
inquiry is deemed to have notice of all acts which reasonable inquiry would
disclose.' Hawkes v. Hoffman, 56 Wash. 120, 126, 105 P. 156 (1909).
Accord Enterprise Timber, Inc. v Washington Title Ins. Co., 76 Wn.2d 479,
482, 457 P.2d 600 (1969); American Sur. Co. v. Sundberg, 58 Wn.2d 337, 344,
363 P.2d 99 (1961) ('notice sufficient to excite attention and put a person
on guard, or to call for an inquiry is notice of everything to which such
inquiry might lead.'), cert. denied, 368 U.S. 989, 82 S. Ct. 598, 7 L. Ed.
2d 526 (1962).
In the present case, as a matter of law, Winbun knew of the statutory
elements of her cause of action at least in early 1994. A reasonable
inquiry as to her medical records or in consulting her retained expert
would have revealed Dr. Epstein's egregious malpractice. Nothing prevented
her from learning of her cause of action against Dr. Epstein.3 As later
proved to be true, the existence of Dr. Epstein's fault was easily and
quickly ascertainable.
The policy argument for Winbun's failure to discover her claim against
Dr. Epstein is unpersuasive. Winbun's inability to use the discovery
process to obtain additional information regarding Dr. Epstein's negligence
until after the three year limitation period had expired was entirely
caused by Winbun's decision to await filing suit against the various
defendants until the last few days of the limitation period. Winbun could
have taken legal action at any time during the three-year period following
her emergency surgery. Winbun's unwise decision to wait until just days
before the limitation period expired does not excuse her failure to
discover the necessary facts and sue the correct defendant(s) within the
normal limitation period. 'An injured claimant who reasonably suspects
that a specific wrongful act has occurred is on notice that legal action
must be taken.' Beard v. King County, 76 Wn. App. 863, 868, 889 P.2d 501
(1995).
Winbun clearly knew in early 1994 that she had been injured as a
result of medical malpractice. Winbun clearly knew that she needed to take
legal action to protect her interests no later than early June 1995, when
she met with attorney Gould. Winbun had specific notice from her own
medical expert that Dr. Epstein was a likely defendant in January 1996. If
Winbun had been diligent in pursuing this case, she would have discovered
the negligence of Dr. Epstein and brought suit against him well before the
three-year limitation period elapsed.
The one-year discovery period in RCW 4.16.350 is intended to protect
the claims of plaintiffs who do not know, and cannot immediately discover,
they have a cause of action for medical malpractice. Until today, the rule
has never been interpreted to apply to plaintiffs who sit on their known
rights and fail to file suit until after the normal three-year period has
expired. The Court of Appeals' application of RCW 4.16.350 adequately
protects injured persons who do not know and cannot immediately discover
that they have been injured by medical malpractice. The majority's holding
serves only to excuse Winbun's failure to exercise the reasonable diligence
required by this Court in Reichelt, 107 Wn.2d at 772, and Green, 136 Wn.2d
at 96.
This case is difficult because Dr. Epstein is an unsympathetic
defendant. Moreover, the jury was instructed on the statute of limitations
and rendered a verdict in favor of the defendant. But our application of
the law cannot be swayed by these facts. Under our traditional application
of the discovery rule as mandated by RCW 4.16.350, Winbun's claim against
Dr. Epstein was barred in April 1996, three-years after she was
misdiagnosed and injured, and more than one year after she knew or should
have known of all the statutory elements of her claim as a reasonable and
diligent inquiry would have revealed.
I would affirm the decision of the Court of Appeals.
* Justice Philip Talmadge is serving as a justice pro tempore of the
Supreme Court pursuant to Const. IV, sec. 2(a) (amend. 38).
1 Dr. Robert Nielsen, Winbun's principal expert, concluded Dr. Epstein was
negligent three months before the expiration of the three year limitation
period provided in RCW 4.16.350. Dr. Nielsen sent a letter to Gould dated
January 17, 1996 stating 'even the gynecologist who took her to surgery did
not examine the pelvis!' Clerk's Papers at 465. Dr. Nielsen subsequently
testified he did not follow up on his opinion regarding Dr. Epstein's
negligence because no one asked him to do so. Id.
2 Another of Winbun's experts, Dr. Mize Connor, stated Epstein's negligence
in clear terms in a declaration presented to the trial court on summary
judgment. As the Court of Appeals noted:
Dr. Mize Connor {} stated that it was 'inconceivable' to him how anyone
could review Winbun's hospital records and not conclude that Dr. Epstein
had breached the standard of care. Clerk's Papers at 455. At trial, Dr.
Connor opined that 'the level of negligen{ce} that Dr. Epstein exhibited
here and his blatant, non-recognition for inquiry into the severity of Mrs.
Winbun's illness makes this, I think, without question, a grossest case of
failure to meet the standard of care that I have run across.' Report of
Proceedings at 118-19. Dr. Connor further opined that '{a} second year
medical student would have been sent back to college had he written orders
like this for a patient in Mrs. Winbun's condition.' Id. at 89.
Winbun v. Moore, 97 Wn. App. 602, 607, 982 P.2d 1196 (1999) (alterations in
original).
3 Contrast the facts in this case with those of Lo v. Honda Motor Co., 73
Wn. App. 448, 869 P.2d 1114 (1994), relied upon by the majority, where
plaintiff's counsel actively solicited the opinion of medical experts as to
the cause of the plaintiff's injuries and virtually all the experts
insisted Honda's automobile, not medical malpractice, was the cause of the
plaintiff's injuries. Indeed, six physicians evaluated the case before a
seventh concluded malpractice was present. Id. at 453.