Gilbert v. Sacred Heart Medical Center

• Decision Date: 10 August 1995
• Docket Number: No. 60570-0,60570-0
• Citation: 900 P.2d 552,127 Wn.2d 370
• Court: Washington Supreme Court
• Parties: Larry and Cynthia GILBERT, as guardians ad litem of Laura Gilbert, a minor, Appellants, v. SACRED HEART MEDICAL CENTER, a Washington corporation; Shigeo Nishimura, M.D. and Jane Doe Nishimura, husband and wife; Spokane Obstetrics and Gynecology; Bruce Hopkins, M.D. and Jane Doe Hopkins, husband and wife; Kennard J. Kapstafer, M.D. and Jane Doe Kapstafer, husband and wife; and John Does, 1-10, Respondents.

Page 370

127 Wn.2d 370

900 P.2d 552

Larry and Cynthia GILBERT, as guardians ad litem of Laura Gilbert, a minor, Appellants, v. SACRED HEART MEDICAL CENTER, a Washington corporation Shigeo Nishimura, M.D. and Jane Doe Nishimura, husband and wife; Spokane Obstetrics and Gynecology; Bruce Hopkins M.D. and Jane Doe Hopkins, husband and wife; Kennard J Kapstafer, M.D. and Jane Doe Kapstafer, husband and wife and John Does, 1-10, Respondents.

No. 60570-0.

Supreme Court of Washington, En Banc.

Aug. 10, 1995.

Richter, Wimberley, Ericson, Woods & Brown, Daniel Huntington, Spokane, Robert Drummond, Spokane, for appellant.

Chase, Hayes & Kalamon, Richard Hayes, Christine Weaver, Spokane, WA, Witherspoon, Kelley, Davenport & Toole, William Symmes, Brian Rekofke, Spokane, Keefe, King & Bowman, Dan Keefe, Christopher Kerley, Spokane, Etter & McMahon, William Etter, Stephen Lamberson, Spokane, for respondent.

Perkins & Coie, Jeffrey Tilden, Elizabeth A. Alaniz, Seattle, for amicus curiae for Liability Reform Coalition.

Bryan P. Harnetiaux, Spokane, Gary N. Bloom, Spokane, for amicus curiae for Washington State Trial Lawyers Ass'n.

Barbara Shickich, Seattle, for amicus curiae for Washington State Hospital Ass'n.

MADSEN, Justice.

Plaintiffs Larry and Cynthia Gilbert, as guardians of their daughter, Laura, appeal the dismissal of their medical malpractice action against the defendant medical care providers. The trial court dismissed the action on the grounds that it is barred by the statute of limitations in RCW 4.16.350. At issue here is the propriety of that ruling.

Laura Gilbert was born at Sacred Heart Medical Center on June 19, 1977, by way of emergency caesarean section. At the time of her birth, Laura was postmature. During labor, Laura's heart rate dropped twice, prompting the caesarean delivery.

A few days after Laura's birth, her father met with doctors to discuss the circumstances of her birth. At this time, Laura was experiencing seizures and other medical problems. The only explanation the doctors could provide was that the umbilical cord might have been wrapped around Laura's neck, depriving her of oxygen.

Laura was diagnosed with cerebral palsy. In November 1978, her parents took her to the Child Development and Mental Retardation Center at the University of Washington. The Center concluded that asphyxiation before or at birth caused Laura's cerebral palsy. It thus became obvious to the Gilberts that their daughter was brain damaged, and that the damage related to events surrounding her birth. They had some concern that improper care had caused Laura's condition, and that her brain damage might have been avoided had a caesarean section been performed earlier.

These concerns led Laura's father to seek legal counsel in 1979 regarding a possible malpractice action against the physicians and health care providers involved in Laura's birth. Two attorneys and Laura's godfather, who is a physician, evaluated the case and found no basis for a medical malpractice action.

The Gilberts subsequently moved to New Mexico and continued to seek medical evaluation and treatment of their daughter's condition. After encountering great expense for spinal surgery Laura needed in 1990, the Gilberts again sought legal counsel in May 1991 regarding a possible medical malpractice action. This time their attorney advised them that there may have been deviation from the community standard of care during Laura's birth and that they did have a potential malpractice claim.

The Gilberts filed this action on Laura's behalf on April 13, 1992. The trial court dismissed the action on summary judgment, finding it barred by the statute of limitations set forth in RCW 4.16.350. The Gilberts appealed directly to this court, arguing that their action was not time barred and, if it was, that such a limitations period unconstitutionally deprived their daughter of legal redress.

The principal issue is whether the 1986 and 1987 amendments to the medical malpractice statute of limitations set forth in RCW 4.16.350 nullify the tolling effects of RCW 4.16.190 as applied to a minor.

RCW 4.16.190, the tolling statute, provides as follows:

If a person entitled to bring an action mentioned in this chapter ... be at the time the cause of action accrued either under the age of eighteen years, or incompetent or disabled ... the time of such disability shall not be a part of the time limited for the commencement of action.

Prior to the 1986 amendment, RCW 4.16.350 provided:

Any civil action for damages for injury occurring as a result of health care which is provided after June 25, 1976 against:

(1) ... [A] physician ...

....

3) ... [A] hospital ...

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 ... [DELETED: Provided, That the limitations in this section shall not apply to persons under a legal disability as defined in RCW 4.16.190.]

(Italics added to show language that has been deleted.) Thus, before amendment, the statute of limitations for medical malpractice claims clearly was tolled during minority.

The 1986 amendment to RCW 4.16.350 deleted the language highlighted above and added the following:

For purposes of this section, notwithstanding RCW 4.16.190, the knowledge of a custodial parent or guardian shall be imputed to a person under the age of eighteen years....

The 1987 amendment further added

and such imputed knowledge shall operate to bar the claim of such minor to the same extent that the claim of an adult would be barred under this section. Any action not commenced in accordance with this section shall be barred.

For purposes of this section, with respect to care provided after June 25, 1976, and before August 1, 1986, the knowledge of a custodial parent or guardian shall be imputed as of April 29, 1987, to persons under the age of eighteen years.

The Gilberts contend that the tolling effects of RCW 4.16.190 upon medical malpractice actions remain intact after the 1986 and 1987 amendments to RCW 4.16.350, while the Defendants maintain that the amendments repeal the tolling provisions of RCW 4.16.190 with regard to medical malpractice actions. The trial court agreed with the Defendants' interpretation of the amendments' effect upon the continued applicability of the tolling statute to RCW 4.16.350.

The Legislature did not expressly repeal the operation of the tolling statute, RCW 4.16.190, when it imputed parental knowledge to minors in its 1986 and 1987 amendments to RCW 4.16.350. Further, this court has stated many times that the implicit repeal of statutes is strongly disfavored. Tollycraft Yachts Corp. v. McCoy, 122 Wash.2d 426, 439, 858 P.2d 503 (1993); State v. Greenwood, 120 Wash.2d 585, 593, 845 P.2d 971 (1993). Where an amendment may be harmonized with the existing provisions and purposes of a statutory scheme, there is no implicit repeal. Tollycraft Yachts, at 439, 858 P.2d 503; Bellevue Sch. Dist. 405 v. Brazier Constr. Co., 103 Wash.2d 111, 123, 691 P.2d 178 (1984). Stated another way, it is the duty of this court to construe two statutes dealing with the same subject matter so that the integrity of both will be maintained. Tacoma v. Cavanaugh, 45 Wash.2d 500, 503, 275 P.2d 933 (1954); see also Bour v. Johnson, 122 Wash.2d 829, 835, 864 P.2d 380 (1993).

We therefore must interpret the amendments to RCW 4.16.350 in such a way that the integrity of the tolling statute is preserved rather than destroyed. Such an interpretation supports the Gilberts' position. When read in harmony with the tolling statute, the limitations periods of RCW 4.16.350 are tolled until a minor reaches the age of majority, whereupon that minor is "charged" with whatever knowledge regarding a potential malpractice claim his or her parents or guardians possess. The additional language "shall operate to bar the claim ... to the same extent ... [as] an adult" then dictates that a minor to whom knowledge is imputed has only the time which an adult with knowledge would have to file a claim once the minor attains majority. RCW 4.16.350(3). With respect to a competent adult, RCW 4.16.350 requires a medical malpractice action to be commenced within 3 years of the act or omission alleged to have caused the injury, or within 1 year of the time that the plaintiff discovers that the injury was caused by said act or omission, whichever expires later. Where there is no knowledge, an adult has 8 years to file a medical malpractice action. This interpretation gives effect to the language of both RCW 4.16.190 and RCW 4.16.350.

Our interpretation is also consistent with Merrigan v. Epstein, 112 Wash.2d 709, 716, 773 P.2d 78 (1989), in which this court also considered the interplay between the two statutes. The minor plaintiff there sought review of a trial court decision interpreting the 1986 and 1987 amendments to RCW 4.16.350. The trial court ruled that because the action had not been commenced within 8 years of the date of the alleged act or omission the minor's claim was barred. Merrigan, at 714, 773 P.2d 78. This court reversed, holding that the action was not barred because the tolling statute, RCW 4.16.190, suspends the "8-years-from-act-or-omission period for the duration of the child's minority or incapacity". Merrigan, at 716, 773 P.2d 78.

The Defendants acknowledge that Merrigan supports our interpretation of the amendments to RCW 4.16.350 as applied to the 8-year statute of limitations, but point to language in the opinion contrary to our holding regarding the relationship between the tolling statute and the 1-year and 3-year...