Duke v. Boyd

• Decision Date: 21 August 1997
• Docket Number: No. 64099-8,64099-8
• Citation: 133 Wn.2d 80,942 P.2d 351
• Court: Washington Supreme Court
• Parties: Joan DUKE, Appellant, v. Dr. Herschell BOYD and Marili Boyd, husband and wife, Respondents. . En Banc

Page 80

133 Wn.2d 80

942 P.2d 351

Joan DUKE, Appellant, v. Dr. Herschell BOYD and Marili Boyd, husband and wife, Respondents.

No. 64099-8.

Supreme Court of Washington.

En Banc.

Argued Jan. 22, 1997.

Decided Aug. 21, 1997.

Debra Stephens, Bryan Harnetiaux, Spokane, Harbaugh & Bloom, Gary N. Bloom, Spokane, amicus curiae on Behalf of Washington State Trial Lawyers.

Thorsrud, Cane & Paulich, Russell C. Love, Seattle, amicus curiae on Behalf of Washington Defense Trial Lawyers.

David A. Middaugh, Seattle, for Appellant.

Lee, Smart, Cook, Martin & Patterson, John P. Cook, Lisa Hollomon, Seattle, Merrick, Hofstedt & Lindsey, P.S., Allan Baris, Seattle, for Respondent.

DOLLIVER, Justice.

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 post-surgical representations to Plaintiff allegedly constituted intentional concealment of Defendant's negligence, we reverse and remand for trial.

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 RCW 4.16.350. Duke argued Boyd's misrepresentations and outright lies constituted fraud and intentional concealment, which tolled the statute of limitation. The trial court granted summary judgment for Boyd, and this court accepted direct review.

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 RCW 4.16.350 in a case of alleged fraud and intentional concealment. Whether Duke can prove fraud or intentional concealment is a question of fact for the trier of fact to resolve. See Douglas Northwest, Inc. v. Bill O'Brien & Sons Constr., Inc., 64 Wash.App. 661, 678, 828 P.2d 565 (1992) ("Each element of fraud is a material issue to be resolved and must be proven by clear, cogent and convincing evidence[.]").

RCW 4.16.350 states medical malpractice actions

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

(A) in the later of the following two periods:

(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 [toll] the statute of limitations$." RCW 4.16.350 contains two limitation periods: three years from the act, and one year from discovering the cause of action, whichever period is longer. The statute also places an eight-year ceiling on the "one year from discovery" period. All three time periods are interconnected, 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." RCW 4.16.350. If a plaintiff proves fraud or intentional concealment, the proviso suspends operation of all limitation periods listed in RCW 4.16.350. As discussed below, the parties mainly dispute whether the statute of limitation is reinstated by any event.

Duke argues RCW 4.16.350 indefinitely tolls the statute of limitation if she shows proof of such fraud or intentional concealment. She claims that, once fraud is proven, Boyd cannot use the statute of limitation as an affirmative defense to block the lawsuit.

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 ...." RCW 4.16.350. If a plaintiff proves fraud or intentional concealment in court, the proviso explicitly tolls the "time for commencement of an action," and a defendant cannot raise RCW 4.16.350 as an affirmative defense. The statutory language provides nothing further. No language in the statute provides for an end of the tolling. Nothing in the proviso implies that some event restarts the limitation clock. In other words, even if a plaintiff, at some point, obtains actual or constructive knowledge of the fraud or intentional concealment and discovers the cause of action, the plaintiff still has no duty, under the express language of the statute, to bring the action within any period of time after obtaining that knowledge.

In other statutes of limitation containing tolling provisions, the Legislature has plainly indicated what conditions, if any, restart the limitation clock. See, e.g., RCW 4.16.180 (time while person is concealed within or absent from the state is not considered part of the limitation period); RCW 4.16.190 (time while person is disabled is not part of the limitation period); RCW 4.16.210 (time while country is in war is not part of the limitation period). In contrast to these cited statutes, RCW 4.16.350 does not limit the tolling effect to the time while a plaintiff is unaware of the fraud, intentional concealment, or presence of a foreign object. If the Legislature wanted to limit the tolling, it clearly knows how to do so. As written, the proviso indefinitely suspends the statute of limitation in cases where fraud, intentional concealment, or the presence of a foreign object is proved.

When a statute is ambiguous, courts will look to legislative intent to help determine the meaning of the statute. We find no ambiguity in the proviso. The proviso's language is clear on the issue of tolling. Nonetheless, we note that our reading of the language is supported by the only evidence of legislative intent regarding the proviso. The original bill debated by the Senate did not contain the proviso, but Senator Metcalf moved to amend the bill by including, among other things, a nearly identical proviso. See Senate Journal, 49th Legislature (1986), at 490-91. Although Senator Metcalf's motion to include the language was denied by a majority of the Senate, the final version of the bill, as approved by both the House and Senate and as codified in the Revised Code of Washington,...