Unruh v. Cacchiotti
| Decision Date | 21 July 2011 |
| Docket Number | No. 84707–0.,84707–0. |
| Citation | 257 P.3d 631,172 Wash.2d 98 |
| Court | Washington Supreme Court |
| Parties | Lisa UNRUH, Appellant,v.Dino CACCHIOTTI, d.d.s. and Jane Doe Cacchiotti, husband and wife, and the marital community composed thereof, Respondents. |
OPINION TEXT STARTS HERE
Paul W. Whelan, Stritmatter Kessler Whelan Coluccio, Seattle, WA, Ray W. Kahler, Garth L. Jones, Stritmatter Kessler Whelan Coluccio, Hoquiam, WA, for Appellant.Christopher Holm Howard, Mary Jo Newhouse, Jennifer Lynn Campbell, Averil Budge Rothrock, Schwabe Williamson & Wyatt PC, Seattle, WA, for Respondents.Mary H. Spillane, William Kastner & Gibbs, Seattle, WA, amicus counsel for American Medical Association, Physicians Insurance, and Washington State Medical Association.Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., PS, Melissa O'Loughlin White, Cozen O'Connor, Herbert Matthew Munson, Thorsrud Cane & Paulich, Aaron Paul Riensche, Ogden Murphy Wallace, PLLC, Seattle, WA, amicus counsel for Washington Defense Trial Lawyers.Bryan Patrick Harnetiaux, Spokane, WA, George M. Ahrend, Ahrend Law Firm, PLLC, Moses Lake, WA, amicus counsel for Washington State association for Justice Foundation.STEPHENS, J.
[172 Wash.2d 101] ¶ 1 This case concerns the proper interpretation of the 2006 statute of limitations and statute of repose applicable to claims for medical malpractice. Lisa Unruh filed a lawsuit against her orthodontist, Dr. Dino Cacchiotti, alleging that his negligent treatment when she was a minor resulted in her losing her teeth and undergoing extensive implant surgery. Cacchiotti moved for summary judgment under the statute of limitations and prevailed. At the Court of Appeals, Cacchiotti raised an alternative ground for dismissing Unruh's claim based on the eight -year statute of repose. After requesting supplemental briefing, the Court of Appeals certified the case for our review. We reverse the trial court and hold that neither the statute of limitations nor the statute of repose bars Unruh's claim.
¶ 2 Lisa Unruh was born on January 3, 1986. When she was nine years old, Unruh began seeing Cacchiotti. Unruh suffered from a severe underbite that resulted from her lower jaw growing faster than her upper jaw. To alleviate this and other problems, Cacchiotti began a treatment plan involving braces. Cacchiotti first placed braces on Unruh's upper teeth in 1995 and later added them to her lower teeth in 1996. Cacchiotti removed the braces in August 1999. Unruh had her final follow-up visit in November 2000.1
¶ 3 During Cacchiotti's treatment of Unruh, the roots of several of her teeth were resorbed 2 when her permanent teeth erupted into the path of the roots. As a result of the root resorption, Unruh eventually lost many of her permanent teeth and had to have implant surgery.
¶ 4 Unruh's father learned from a dentist who was treating Unruh's stepmother that the braces may have caused Unruh's root resorption. According to Unruh's stepmother, when she asked Cacchiotti about the likely cause, he told her that some people are not meant to have braces and that Unruh should not have had braces because they were destroying her roots. Unruh's stepmother testified that she did not suspect Cacchiotti had done anything wrong, but instead assumed that the braces had simply exacerbated a genetic predisposition to root resorption.
[172 Wash.2d 103] ¶ 5 Over the next several years, a number of different doctors told Unruh that her prior orthodontic care caused her root resorption. In March 2006, Unruh and her stepmother met with Dr. Ronald Bryant, who presented a slide show on tooth implants. According to Unruh's stepmother, it was at this appointment that she asked Bryant why Unruh's teeth were falling out:
I said, “Why are her teeth falling out?” I said, “Was it something hereditary?” And he said, “No, she has root reabsorption [sic].”
And I said, And he said, And I said, —I said—he said, “No, that was the cause of her loss of teeth.” And I said,
Clerk's Papers at 244–45. At that point, according to Unruh's stepmother, the family realized for the first time that Cacchiotti may have done something wrong. They decided to consult an attorney.
¶ 6 On June 7, 2006, the legislature enacted two statutes related to claims for medical malpractice. Final B. Rep. on Second Substitute H.B. 2292, at 8, 59th Leg., Reg. Sess. (Wash. 2006) (). RCW 4.16.350, which contains the statute of limitations for medical malpractice claims, was amended to include an eight-year statute of repose. Laws of 2006, ch. 8, §§ 301–02. The amendment was a response to DeYoung v. Providence Medical Center, 136 Wash.2d 136, 150, 960 P.2d 919 (1998), in which this court struck down a prior version of the medical malpractice statute of repose under the privileges and immunities clause of article I, section 12 of the Washington State Constitution.
¶ 7 The legislature also amended RCW 4.16.190, the general provision that tolls statutes of limitations for minor plaintiffs in civil actions, including cases of medical malpractice. Gilbert v. Sacred Heart Med. Ctr., 127 Wash.2d 370, 375, 900 P.2d 552 (1995) (). The 2006 amendment to RCW 4.16.190 specifically eliminated tolling for minors in medical malpractice cases. Laws of 2006, ch. 8, § 303.
¶ 8 After obtaining counsel, on November 16, 2006 Unruh sent Cacchiotti a 90–day notice of intent to sue under former RCW 7.70.100 (2006). Cacchiotti's insurance representative responded, and Unruh's counsel and the representative began discussing resolution of the case. Unruh turned 21 on January 3, 2007. A few days later, on January 12, Unruh's counsel sent a letter to Cacchiotti's insurance representative requesting mediation under RCW 7.70.110. The insurance representative responded by letter stating, “You have requested mediation based on RCW 7.70.100, and, therefore, we agree that the statute of limitations is tolled for one year by RCW 7.70.110.” CP at 318. The parties agreed to mediate the dispute and set a date for September 2007. Before the parties could meet, Cacchiotti backed out of the mediation. Unruh filed her negligence lawsuit on September 27, 2007.
¶ 9 Cacchiotti moved for summary judgment based on the statute of limitations, RCW 4.16.350(3).3 The trial court granted summary judgment to Cacchiotti, finding no genuine issue of material fact and that the statute of limitations had expired. CP at 345–49. Unruh appealed.
¶ 10 At the Court of Appeals, Unruh initially focused her argument on the statute of limitations' one-year discovery period. She argued she did not discover Cacchiotti's breach of duty until the March 2006 visit with Bryant. She acknowledged discovering before that time that the braces caused her root resorption, but she believed her injury resulted from a combination of her braces and a genetic predisposition to root resorption, not her braces and Cacchiotti's negligence. Until the notion of a genetic predisposition was dispelled by Bryant, Unruh did not suspect Cacchiotti had done anything wrong.
¶ 11 In his response, Cacchiotti argued that the three-year limitations period expired before Unruh filed suit in September 2007. He also argued that Unruh's claim was not saved by the discovery rule because she learned about her cause of action more than one year before filing the lawsuit. Alternatively, Cacchiotti argued that, even assuming Unruh did not discover her claim until the March 2006 visit with Bryant, the claim was still untimely because the request for mediation under RCW 7.70.110 was defective and thus did not toll the limitations period.4 In another alternative argument, Cacchiotti contended that, even assuming the request for mediation effectively tolled the one-year discovery period, the lawsuit was still untimely under the newly reenacted eight-year statute of repose.
¶ 12 The Court of Appeals requested supplemental briefing from both parties on the effect of the statute of repose on this court's decision in DeYoung. The court also requested briefing regarding the effect of the 2006 nontolling amendment to RCW 4.16.190 on this court's decision in Gilbert. In her supplemental brief, Unruh raised constitutional challenges to the 2006 legislation, though she asserted that the case could be resolved on statutory grounds.5 The Court of Appeals certified the case to this court, and we retained it for direct review.
¶ 13 The parties' briefing provides varying time lines of the events in this case. The following dates are relevant:
+-----------------------------------------------------------------------------+
¦Aug.1999 ¦Cacchiotti removes Unruh's braces ¦
+-------------------------+---------------------------------------------------¦
¦Nov.2000 ¦Unruh's final visit with Cacchiotti ¦
+-------------------------+---------------------------------------------------¦
¦Jan. 3, 2004 ¦Unruh turns 18 ¦
+-------------------------+---------------------------------------------------¦
¦ ¦Legislature (1) reenacts the eight-year medical ¦
¦June 7, 2006 ¦malpractice statute of repose and (2) amends RCW ¦
¦ ¦4.16.190 to eliminate tolling for minors in medical¦
¦ ¦malpractice cases ¦
+-------------------------+---------------------------------------------------¦
¦Nov. 16, 2006 ¦Unruh serves 90–day...To continue reading
Request your trial
-
State v. Bass
...Id. at 670, 756 P.2d 722. ¶ 32 Generally, the existence of a principal-agent relationship is a question of fact. Unruh v. Cacchiotti, 172 Wash.2d 98, 114, 257 P.3d 631 (2011) ; Travelers Cas. & Sur. Co. v. Wash. Tr. Bank, 186 Wash.2d 921, 937-38, 383 P.3d 512 (2016). When a trial court make......
-
Schroeder v. Steven Weighall, M.D., & Columbia Basin Imaging, P.C.
...malpractice actions, but the parties subsequently agreed to stay the proceedings pending this court's decision in Unruh v. Cacchiotti, 172 Wash.2d 98, 257 P.3d 631 (2011). In that decision, we held that RCW 4.16.350(3) applied only prospectively. Unruh, 172 Wash.2d at 110–11, 257 P.3d 631. ......
-
Afoa v. Port of Seattle
...to the jury. Travelers Cas. & Sur. Co. v. Wash. Tr. Bank, 186 Wash.2d 921, 937, 383 P.3d 512 (2016) (citing Unruh v. Cacchiotti, 172 Wash.2d 98, 114, 257 P.3d 631 (2011) ). ¶ 27 There is a long-standing common law duty to provide a safe workplace in Washington, and the Port is directly liab......
-
State v. Bass
...Id. at 670, 156 P.2d 722. ¶ 32 Generally, the existence of a principal-agent relationship is a question of fact. Unruh v. Cacchiotti, 172 Wn.2d 98, 114, 257 P.3d 631 (2011); Travelers Cas. & Sur. Co. v. Wash. Tr. Bank, 186 Wn.2d 921, 937-38, 383 P.3d 512 (2016). When a trial court makes fin......