Evison v. Vossler, 70491-5-I
| Decision Date | 29 September 2014 |
| Docket Number | No. 70491-5-I,70491-5-I |
| Court | Washington Court of Appeals |
| Parties | SARAH A. EVISON, a single woman, Appellant, v. DAVID VOSSLER, M.D., individually, and as a member of a marital community composed of David Vossler and Jane Doe Vossler; and VALLEY MEDICAL CENTER - KING COUNTY PUBLIC HOSPITAL DISTRICT NO. 1, Respondents, GLAXOSMITHKLINE, LLC, a foreign limited liability company; and DSM PHARMACEUTICALS, INC., a foreign corporation, Defendants. |
UNPUBLISHED OPINION
SCHINDLER, J. — In Waples v. Yi, 169 Wn.2d 152, 234 P.3d 187 (2010), the court invalidated the statutory 90-day presuit notice requirement of former RCW 7.70.100(1) (2007) for lawsuits against medical providers. Waples, 169 Wn.2d at 160-61. On March 9, 2012, Sarah A. Evison filed a lawsuit against drug manufacturers GlaxoSmithKline LLC and DSM Pharmaceuticals Inc.,1 and David Vossler MD andValley Medical Center - King County Public Hospital District No. 1 (Valley), alleging negligent prescription and treatment that resulted in her permanent vision loss.
After Evison filed the lawsuit, the Washington Supreme Court held that as applied to the state and local governmental entities, the statutory 90-day presuit notice requirement was constitutional under article II, section 26 of the Washington State Constitution. McDevitt v. Harborview Med. Ctr., 291 P.3d 876, 883 (2012). The trial court granted summary judgment dismissal of the lawsuit against Valley for failure to file a 90-day presuit notice of intent to sue under former RCW 7.70.100(1) (2007). Evison filed an appeal.
During the pendency of the appeal, the Supreme Court withdrew the decision in McDevitt, 291 P.3d 876 (2012), and issued a new opinion. In McDevitt v. Harborview Medical Center, 179 Wn.2d 59, 316 P.3d 469 (2013), the court held that because the plaintiff reasonably relied on Waples, the decision that the 90-day presuit notice requirement applied to medical malpractice actions against the state and local governmental entities "merits prospective-only application and will not apply to this case." McDevitt, 179 Wn.2d at 63. Because the record shows that Evison also reasonably relied on the decision in Waples, we reverse dismissal of the lawsuit against Valley for failure to file a notice of intent to file suit, and remand.
Statutory Presuit Notice Requirement
In 2006, the legislature amended the act governing medical malpractice actions against health care providers, chapter 7.70 RCW. As amended, former RCW 7.70.100 (2006) required a plaintiff to serve a health care provider with a 90-day notice of theintent to file a lawsuit. LAWS OF 2006, ch. 8, § 314. Former RCW 7.70.100(1) (2006) states, in pertinent part:
No action based upon a health care provider's professional negligence may be commenced unless the defendant has been given at least ninety days' notice of the intention to commence the action. If the notice is served within ninety days of the expiration of the applicable statute of limitations, the time for the commencement of the action must be extended ninety days from the service of the notice.
See LAWS OF 2006, ch. 8, § 314.2 Former RCW 7.70.150 (2006) also required a plaintiff to file a certificate of merit from a medical expert with the complaint. See LAWS OF 2006, ch. 8, § 304.
In 2006, former RCW 4.92.110 and former RCW 4.96.020 required a plaintiff to file a 60-day presuit notice for all claims against the state and local governmental entities. See LAWS OF 2006, ch. 82, §§ 2, 3. Former RCW 4.92.100 (2006) states all tort claims against the state for damages shall be filed with the risk management division. See LAWS OF 2006, ch. 82, § 1. Former RCW 4.92.110 (2006) states:
No action shall be commenced against the state, or against any state officer, employee, or volunteer, acting in such capacity, for damages arising out of tortious conduct until sixty days have elapsed after the claim is presented to and filed with the risk management division. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period.
Former RCW 4.96.020(4) (2006) states, in pertinent part:
No action shall be commenced against any local governmental entity, or against any local governmental entity's officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period.
In 2009, the legislature amended former RCW 4.92.110 (2006) and former RCW 4.96.020 (2006) to avoid inconsistent presuit notice requirements for medical malpractice actions against the state and local governmental entities. LAWS OF 2009, ch. 433, §§ 1, 3. As amended, the statutes expressly exclude lawsuits against the state and local governmental entities "involving injuries from health care" from the 60-day presuit notice requirement. Former RCW 4.92.100(1) (2009); see also LAWS OF 2009, ch. 433, § 2. The statutes unequivocally state that all medical malpractice claims against the state or local governmental entities shall be "governed solely by the procedures set forth in chapter 7.70 RCW and are exempt from" the requirements of former RCW 4.92.110 (2006) and former RCW 4.96.020(1) (2006). Former RCW 4.92.100(1) (2009); see also LAWS OF 2009, ch. 433, §§ 1, 2.
As amended, former RCW 4.92.100(1) (2009) states, in pertinent part:
All claims against the state, or against the state's officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct, except for claims involving injuries from health care, shall be presented to . . . the risk management division. . . . Claims involving injuries from health care are governed solely by the procedures set forth in chapter 7.70 RCW and are exempt from this chapter.
Former RCW 4.96.020(1) (2009) states, in pertinent part:
The provisions of this section apply to claims for damages against all local governmental entities and their officers, employees, or volunteers, acting in such capacity, except that claims involving injuries from health care are governed solely by the procedures set forth in chapter 7.70 RCW and are exempt from this chapter.
In Putman v. Wenatchee Valley Medical Center, PS, 166 Wn.2d 974, 216 P.3d 374 (2009), the court held that the certificate of merit requirement of former RCW 7.70.150 violated separation of powers principles and the right of access to courts. Putman, 166 Wn.2d at 984-85.
In Waples v. Yi, 169 Wn.2d 152, 234 P.3d 187 (2010), the court adhered to its analysis in Putman and held the 90-day presuit notice requirement of former RCW 7.70.100(1) violated separation of powers principles. Waples, 169 Wn.2d at 160-61. The court held, in pertinent part:
The notice requirement of RCW 7.70.100(1) irreconcilably conflicts with the commencement requirements of CR 3(a) and is unconstitutional because it conflicts with the judiciary's power to set court procedures.
During the 2012 legislative session, the legislature amended former RCW 4.92.100(1) (2009) and former RCW 4.96.020 (2009) to remove the exclusion for "claims involving injuries from health care." LAWS OF 2012, ch. 250, §§ 1, 2. Following the effective date of June 7, 2012, all tort actions against the state or local governmental entities are subject to a 60-day presuit notice requirement. SUBSTITUTE S.B. 6187, 62nd Leg., Reg. Sess. (Wash. 2012).
Lawsuit against Dr. David Vossler and Valley Medical Center
On March 9, 2012, Sarah A. Evison filed a lawsuit against drug manufacturers GlaxoSmithKline LLC and DSM Pharmaceuticals Inc., and David Vossler MD and Valley Medical Center - King County Public Hospital District No. 1 (Valley). That same day, Evison served the Valley administrator with a "Standard Tort Claim Form."
The complaint alleged that after 19-year-old Evison suffered a grand mal seizure,5 she experienced side effects from taking an antiepileptic drug. In July 2008, Evison was referred to Dr. Vossler at the Washington Neuroscience Institute at Valley Medical Center for treatment. Dr. Vossler prescribed another antiepileptic drug, Lamictal.
The complaint alleged that in January 2009, Evison told Dr. Vossler she was experiencing side effects from Lamictal. According to Evison, Dr. Vossler told her the side effects were normal and would gradually go away. Evison alleged she experienced "increasing problems with her memory, her focus, nausea, and stomach pains," and by March, vision problems, including blurred vision and sensitivity to light. The complaint also alleged Dr. Vossler told Evison and her parents the "symptoms would settle down and not to worry." After Evison withdrew from college in March, Dr. Vossler referred Evison to an ophthalmologist. Evison alleged that her previously normal vision had deteriorated to "20/400 bilaterally, with no central vision."
On May 11, 2012, Evison served the summons and complaint for personal injuries and damages on Valley. Valley filed an answer to the complaint. Valley denied liability and asserted a number of affirmative defenses, including failure to comply with the statutory requirement to provide a 90-day presuit notice of intent to file a malpractice lawsuit under former RCW 7.70.100(1).
Valley filed a motion for summary judgment dismissal. Valley argued the decision in Waples did not apply to governmental entities such as a public hospital, and there was no dispute Evison did not comply with the 90-day presuit notice requirementof former RCW 7.70.100(1). In opposition, Evison argued that because the court in Waples made no distinction between private and governmental entities, the 90-day presuit...
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