Duke v. BoydDuke v. Boyd
This case involves the statute of limitation for medical malpractice cases. The trial court dismissed Plaintiff‘s medical malpractice action against Defendant, an ophthalmologist, since the suit was filed nearly 10 years after the last eye surgery. Because Defendant‘s
Plaintiff, Joan Duke, received eye care from Dr. Herschell Boyd from 1974 until 1992. Between 1974 and 1983, Duke saw Boyd for eye examinations and to obtain prescriptions for eye glasses and contact lenses. In 1983, Duke saw a brochure in Boyd‘s office describing a surgical procedure called radial keratotomy. Duke and Boyd discussed the procedure, and Boyd told her the procedure could be used to correct her nearsightedness and astigmatism. Boyd allegedly represented numerous times that the surgery was effective and could result in perfect or near perfect vision. Boyd allegedly did not disclose that the procedure could cause numerous unfavorable side effects.
Boyd performed nine surgeries on Duke‘s left eye between 1983 and 1985. The last surgery was August 28, 1985, and the results were unsatisfactory: Duke still had to wear a hard contact lens to correct her vision. The surgery also allegedly damaged her left eye. When Duke questioned Boyd as to why her vision had not improved as promised, Boyd allegedly responded that she was the only patient who did not react positively to the procedure, and he implied or stated that her case was simply an unexplainable or unique phenomenon.
Duke consulted with two different attorneys after the unsuccessful surgeries to discuss the possibility of a malpractice action. Both attorneys explained that bad results did not necessarily indicate negligence. Duke, being a registered nurse, realized that unpromising medical results sometimes happened without a doctor‘s negligence. She took no further action regarding the unsuccessful surgeries, and she continued to see Boyd for eye exams and lens prescriptions until 1992.
In November 1994, Duke saw a television program mentioning Boyd and radial keratotomy. The show apparently disclosed many of Boyd‘s patients had unfavorable results from the expensive procedure. Duke realized Boyd‘s statements regarding the uniqueness of her unfavorable results were untrue, and she contacted an attorney. This lawsuit was filed just months later, in February 1995.
Boyd motioned for summary judgment, arguing Duke‘s lawsuit, filed nearly 10 years after the last surgery, was untimely under
Since this is an appeal from summary judgment for Defendant, we must view the allegations in a light most favorable to Plaintiff. See Marquis v. City of Spokane, 130 Wash.2d 97, 105, 922 P.2d 43 (1996). The only issue before us concerns the impact of
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.
For ease of analysis, the quoted language can be condensed into this simple outline:
Medical malpractice actions must be brought
(1) within three years of the act causing the injury, or
(2) within one year of the plaintiff having actual or constructive knowledge of the injury,
but no actions shall be allowed if filed more than eight years after the act causing injury.
(B) The time for commencement of an action is tolled if the plaintiff proves fraud, intentional concealment, or the presence of a foreign object.
The clause providing for tolling of the time limit will be referred to as the “proviso.”
Neither party disputes the meaning of the word, “tolled,” as used by the proviso. The applicable definition from Webster‘s Third New International Dictionary 2405 (1971) defines toll as “to take away: make null: REMOVE see Gilbert v. Sacred Heart Med. Ctr., 127 Wash.2d 370, 376, 900 P.2d 552 (1995), and all three are encompassed by the proviso‘s clause, “time for commencement of an action.”
Duke argues
Boyd argues the proviso only tolls the statute of limitation for so long as the plaintiff is unaware of the fraud or intentional concealment. Boyd claims the statute of limitation begins to run again once the plaintiff obtains actual or constructive knowledge of the fraud or intentional concealment, allowing a plaintiff one year to file the lawsuit after obtaining such knowledge. Boyd does not point to any language within the statute to support his reading.
Although the result seems extreme, Duke‘s interpretation of the statute is absolutely consistent with the literal impact of the language in the proviso. The proviso states, “the time for commencement of an action is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body....”
In other statutes of limitation containing tolling provisions, the Legislature has plainly indicated what conditions, if any, restart the limitation clock. See, e.g.,
When a statute is ambiguous, courts will look to legislative intent to help determine the meaning of the statute. We find no
There is a time when there is no limit on malpractice and that is lines 30 thru 37. That is, in the case of fraud, intentional concealment, or the presence in the injured person of a foreign body—if a doctor left a clamp inside, then there is no statute of limitations on that.
Senate Journal at 491. His statement that there is no statute of limitation in cases of fraud or intentional concealment supports the literal reading of
Normally, one legislator‘s comments from the floor are considered inadequate to establish legislative intent. See In re F.D. Processing, Inc., 119 Wash.2d 452, 461, 832 P.2d 1303 (1992). The legislative record, however, does not reflect any contrary intent to Senator Metcalf‘s statement, and we presume Senator Metcalf understood the meaning of the amendment which he proposed. See In re Marriage of Kovacs, 121 Wash.2d 795, 807-08, 854 P.2d 629 (1993).
The purpose of statutory interpretation is to determine and give effect to legislative intent. See In re Electric Lightwave, Inc., 123 Wash.2d 530, 536, 869 P.2d 1045 (1994). The legislative intent should be derived primarily from the statutory language. See Electric Lightwave, Inc., 123 Wash.2d at 536, 869 P.2d 1045; Everett Concrete Prods., Inc. v. Department of Labor & Indus., 109 Wash.2d 819, 822, 748 P.2d 1112 (1988). When the words in a statute are clear and unequivocal, this court is required to assume the Legislature meant exactly what it said and apply the statute as written. See King County v. Taxpayers of King County, 104 Wash.2d 1, 5, 700 P.2d 1143 (1985). Although the court should not construe statutory language so as to result in absurd or strained consequences, see Wright v. Engum, 124 Wash.2d 343, 351, 878 P.2d 1198 (1994), neither should the court question the wisdom of a statute even though its results seem unduly harsh. See Geschwind v. Flanagan, 121 Wash.2d 833, 841, 854 P.2d 1061 (1993).
It may seem unduly harsh to suspend permanently the statute of limitation when doctors engage in fraud or intentional concealment. Regardless, we cannot question the wisdom of this policy, and we must enforce the statute as written. See Geschwind, 121 Wash.2d at 841, 854 P.2d 1061. It is clear from the House and Senate Journals that the proviso was inserted into the tort reform bill with no discussion other than Senator Metcalf‘s isolated statement. See Senate Journal at 442-98, 1473-87; House Journal, 49th Legislature (1986), at 1035-82. If the Legislature dislikes the impact of the statute as it enacted it, the Legislature, and not this court, has the responsibility to change it. See Gilbert v. Sacred Heart Med. Ctr., 127 Wash.2d 370, 386, 900 P.2d 552 (1995) (Durham, C.J., dissenting) (“However, it is not this court‘s role to provide counterpoint to the Legislature‘s decisions on matters of policy.“); U.S. Oil & Refining Co. v. Department of Ecology, 96 Wash.2d 85, 95, 633 P.2d 1329 (1981) (Dolliver, J., dissenting) (legislation should be done by the state legislature).
We remand this action to the trial court. If Duke proves Boyd fraudulently or intentionally concealed her cause of action, then Boyd cannot raise
SMITH, JOHNSON, MADSEN and SANDERS, JJ., concur.
I agree with Justice Talmadge that the Legislature did not intend the tolling provision of
Our prior cases require a plaintiff to exercise due diligence in the discovery of facts giving rise to a cause of action. Under our discovery rule, a cause of action accrues, and a limitation period begins to run, when the plaintiff knows or should know the essential facts. In re Estates of Hibbard, 118 Wash.2d 737, 752, 826 P.2d 690 (1992); Allen v. State, 118 Wash.2d 753, 758, 826 P.2d 200 (1992). Similarly,
Under
TALMADGE, Justice, concurring.
I agree with the majority that the trial court erred in granting a summary judgment in favor of the defendant, Dr. Herschell Boyd, dismissing plaintiff Joan Duke‘s medical malpractice claim. However, I cannot agree the proviso to
Properly interpreted, the proviso to
... [s]hall 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.
Under our rules of statutory construction, where several different reasonable interpretations of the statute exist, the statute is ambiguous and requires construction by the courts to effectuate the intent of the Legislature. State v. Bash, 130 Wash.2d 594, 601, 925 P.2d 978 (1996); Whatcom County v. City of Bellingham, 128 Wash.2d 537, 547, 909 P.2d 1303 (1996).
The proviso to
The rationale of the tolling statute is that every absence from the state (or a period of hiding or concealment within the state) which prevents a plaintiff from making a service upon a defendant—that would give our courts an in personam jurisdiction— should be excluded in computing the time within which a plaintiff must commence his action.
See also
The removal of the condition or disability which tolls the statutory limitation period usually causes the limitation period to resume; in effect, the clock starts to tick again for purposes of the statute of limitations.2 Thus, for example, the statute of limitations starts to run against a minor under
In Seamans v. Walgren, 82 Wash.2d 771, 775, 514 P.2d 166 (1973), we held that
When a person is prevented from exercising his legal remedy by some positive rule of law, the time during which he is prevented from bringing suit is not to be counted against him in determining whether the statute of limitations has barred his right even though the statute makes no specific exception in his favor in such cases.
(Emphasis supplied.)
Finally,
The amendments to
The Legislature chose the term “tolling” cognizant of its particular meaning under Washington case law. “[T]he Legislature is presumed to know the existing state of the case law in those areas in which it is legislating and a statute will not be construed in derogation of the common law unless the Legislature has clearly expressed its intention to vary it.” Price v. Kitsap Transit, 125 Wash.2d 456, 463, 886 P.2d 556 (1994). Tolling means the statutory limitation periods are suspended because a condition, such as the plaintiff‘s minority or incapacity, or a situation, such as the defendant‘s absence or concealment, prevent commencement of the action. Once the disability or condition has disappeared, the statutory limitation periods resume. See Seamans, 82 Wash.2d at 775, 514 P.2d 166.
Although the majority believes the limitation and repose periods never resume, most of the parties and amici generally disagree on this question. Amicus Washington Defense Trial Lawyers Association contends the plaintiff cannot claim intentional concealment or fraud beyond the end of the physician-patient relationship, relying on Quinn v. Connelly, 63 Wash.App. 733, 821 P.2d 1256, review denied, 118 Wash.2d 1028, 828 P.2d 563 (1992). Quinn, however, is distinguishable. The Court of Appeals stated that attorney negligence is unlike the provision of other professional services in that the damages resulting from attorney negligence in litigation are embodied in the court‘s judgment. Parties are on notice, as a matter of law, from the entry of the judgment of any damages from the negligence and a client, therefore, “possesses knowledge of all the facts which may give rise to his or her cause of action for negligent representation.” Quinn, 63 Wash.App. at 736, 821 P.2d 1256. This is plainly not true for health care.
Amicus Washington State Trial Lawyers Association argues the statutory period should resume when the plaintiff has actual knowledge of the fraud, intentional concealment or the presence of a foreign object in the patient‘s body. This formulation appears to focus on the plaintiff‘s knowledge of the tolling condition rather than the facts giving rise to the plaintiff‘s cause of action for professional negligence.
A proper interpretation of the proviso to
In the present case, in light of the principles enunciated above, the trial court erred in granting summary judgment to Dr. Boyd. There is a fact question here regarding when plaintiff Duke knew of the facts giving rise to her cause of action for professional negligence against Dr. Boyd. If we take the facts and reasonable inferences from those facts in a light most favorable to plaintiff Duke as the nonmoving party on summary judgment, Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995), the limitation and repose periods of
The majority‘s interpretation of the proviso to
ALEXANDER and GUY, JJ., concur.
Notes
To suspend or stop temporarily as the statute of limitations is tolled during the defendant‘s absence from the jurisdiction and during the plaintiff‘s minority.
(Emphasis added.)
While Senator Metcalf‘s remarks are noteworthy, I do not believe the opinion of one legislator who was neither the sponsor of the bill or the actual amendment that became law, nor the chair or member of the Committee through which the bill passed is persuasive as to the intent of the entire Legislature. See, e.g., North Coast Air Servs., Ltd. v. Grumman Corp., 111 Wash.2d 315, 325-27, 759 P.2d 405 (1988).
Furthermore, it is not clear that Senator Metcalf‘s remarks necessarily support the majority‘s view. Senator Metcalf‘s floor amendment proposed to replace the three-year/one-year limitations and eight-year repose period with an eight-year limitation period. The eight-year period was suspended only by fraud, intentional concealment, or the presence of a foreign object. Senate Journal, 1986 reg. sess., at 490-91.
The proviso to