Webb v. Neuroeducation Inc., PC

• Citation: 88 P.3d 417,121 Wash. App. 336,121 Wn. App. 336
• Decision Date: 22 April 2004
• Docket Number: No. 21754-0-III.,21754-0-III.
• Court: Court of Appeals of Washington
• Parties: Mark WEBB, Appellant, v. NEUROEDUCATION INC., P.C., Defendant, Kimberly Chupurdia Ph.D., Respondent.

88 P.3d 417

121 Wn. App. 336

121 Wash. App. 336

Mark WEBB, Appellant, v. NEUROEDUCATION INC., P.C., Defendant, Kimberly Chupurdia Ph.D., Respondent.

No. 21754-0-III.

Court of Appeals of Washington, Division 3, Panel Eight.

April 22, 2004.

Kathleen H. Paukert, Paukert & Sherman PLLC, Spokane, WA, for Appellant.

Everett B. Coulter, Mark A. Wheeler, Spokane, WA, for Respondent.

BROWN, J.

Mark Webb sued psychologist Kimberly Chupurdia for negligently implanting and developing false memories of sexual abuse in his son. The trial court granted summary judgment dismissal on timeliness and legal duty issues. We hold the suit was not barred by the statute of limitations because material facts remain in issue regarding discovery of the alleged harm. Further, as a matter of law, we conclude Mr. Webb properly alleged a legal duty. Accordingly, we reverse.

FACTS

John Doe Webb was four years old in 1989 when his parents, Mark Webb and Susan Webb Ellis, divorced. The dissolution proceedings were bitter, and visitation issues were contentious. Both parents were awarded residential time with the child.

On April 15, 1997, Ms. Ellis took John Doe to Dr. Kimberly Chupurdia for counseling. The next day, April 16, 1997, Dr. Chupurdia reported to Whitman County Child Protective Services (CPS) that John Doe had disclosed his father had sexually abused him since he was seven or eight years old. Dr. Chupurdia filed a report with the Spokane Police Department. On July 28, 1997, the Spokane County Sheriff's Department notified Mr. Webb it was investigating allegations he had sexually abused John Doe. Mr. Webb's last contact with his son was in June 1997. He tried to talk to Dr. Chupurdia in 1997, but she refused to communicate with him.

After interviewing John Doe, CPS concluded further investigation was unwarranted. The sheriff's investigation also was abandoned for lack of corroborating evidence. No official action was ever taken against Mr. Webb.

In 1998, both parents sought parenting plan modifications. Asking for a show cause hearing, Mr. Webb asserted the sexual abuse allegations were unfounded and arose solely from Ms. Ellis's paranoia and her own suggestions to John Doe for the purpose of alienating him from his father. Ms. Ellis sought to terminate Mr. Webb's visitation rights. Dr. Chupurdia filed a declaration supporting Ms. Ellis and recommended terminating all visitations between John Doe and any member of his paternal family.

In a responding declaration filed November 18, 1998, regarding the declaration of Susan Ellis, Mr. Webb stated: "I believe that [John Doe] has been coached and coaxed into fear and that Dr. Chupurdia contributed to that fear." Clerk's Papers (CP) at 277. In the same responding declaration, but regarding the declaration of Dr. Chupurdia, Mr. Webb denied any knowledge of what John Doe or Susan Ellis told Dr. Chupurdia, and pointed to Susan Ellis as likely misinforming Dr. Chupurdia. Mr. Webb stated, "I very strongly believe" or "I believe" when supposing Ms. Ellis had given misinformation to Dr. Chupurdia. CP at 275. Mr. Webb was "curious" why Dr. Chupurdia would not talk to him, "curious" about what case history was available to her, and "curious" why Dr. Chupurdia was so willing to accept the history given by Susan Ellis. CP at 276.

In December 1998, the court appointed a guardian ad litem (GAL) for John Doe with instructions to prepare a report. While preparing his report, the GAL asked for the appointment of a repressed memory expert to review Dr. Chupurdia's records. The court ordered an evaluation by psychologist Paul Wert, who issued a report in July 1999 most decidedly favorable to the father.

The GAL completed an exhaustive investigation and finally issued his 112-page report on October 7, 1999. Mr. Webb received the guardian's report on October 8, 1999. The GAL opined John Doe's alleged recovered memories of abuse were implanted through the suggestions of Susan Ellis and reinforced through counseling with Dr. Chupurdia. The report contained excerpts from Dr. Chupurdia's treatment records, including her evaluation methods. According to Mr. Webb, he first learned from the GAL report that Ms. Ellis had been present during John Doe's sessions with Dr. Chupurdia, and that she and Dr. Chupurdia had prepared notes for John Doe to use during interviews with investigators.

On November 26, 2001, Mr. Webb filed a damages suit against Dr. Chupurdia under chapter 7.70 RCW. Mr. Webb alleged multiple reasons why Dr. Chupurdia's treatment was negligent and breached her professional standard of care, including failing to properly diagnose and treat, misdirecting therapy to recover false memory, misusing methods, implementing and reinforcing false memories, failing to recognize falsely implanted memories, failing to review previous counseling records, and recommending and facilitating the alienation of father and son. Mr. Webb alleged John Doe's treatment with Dr. Chupurdia continued until approximately November 11, 1999.

Dr. Chupurdia moved for summary judgment. The court dismissed the action on two grounds. The court rejected Mr. Webb's factual assertion that he first discovered the alleged malpractice when he received the GAL's report on October 7, 1999. The court decided as a matter of law that Mr. Webb's November 18, 1998 declaration showed he knew or should have known the elements of a cause of action on that date. The court found no genuine issues of material fact. Accordingly, the court concluded the statute of limitations ran on November 18, 2001, a week before Mr. Webb filed. Further, the court concluded Mr. Webb could not prove negligence as a matter of law because Dr. Chupurdia owed him no duty of care. The trial court then dismissed Mr. Webb's suit with prejudice. Mr. Webb appealed.

ANALYSIS

A. Statute of Limitations

The issue is whether the trial court erred in concluding the action was time barred and dismissing Mr. Webb's suit on summary judgment.

In reviewing a summary judgment order, we engage in the same inquiry as the trial court and consider the evidence and all reasonable inferences from the evidence in a light most favorable to the nonmoving party. Miller v. Jacoby, 145 Wash.2d 65, 71, 33 P.3d 68 (2001).

We do not weigh evidence or resolve factual disputes. Babcock v. State, 116 Wash.2d 596, 598-99, 809 P.2d 143 (1991). Summary dismissal under a statute of limitations should be granted solely when the pleadings, depositions, interrogatories, admissions and affidavits in the record demonstrate that there is no genuine issue of material fact as to when the statutory period commenced. CR 56(c); Olson v. Siverling, 52 Wash.App. 221, 224, 758 P.2d 991 (1988). The moving party must establish the absence of any material issue of fact. Babcock, 116 Wash.2d at 598-99,809 P.2d 143. Dismissal must be denied if the plaintiff can establish a right of recovery under any provable set of facts. Judy v. Hanford Envtl. Health Found., 106 Wash.App. 26, 33-34, 22 P.3d 810 (2001). The question of when the elements of a cause of action should have been discovered to begin the running of the statute of limitations is a question of fact. Green v. A.P.C., 136 Wash.2d 87, 100, 960 P.2d 912 (1998).

The governing limitations statute for medical malpractice is RCW 4.16.350. When a complaint alleges a discrete or isolated negligent act, any civil action for damages for injury occurring as a result of health care must be filed "within three years of the act or omission alleged to have caused the injury" or within one year of the time the patient or his representative "discovered or reasonably should have discovered" that the injury was caused by the act or omission, whichever is later. RCW 4.16.350; Winbun v. Moore, 143 Wash.2d 206, 214, 18 P.3d 576 (2001).

When negligence over an entire course of treatment is alleged, rather than discrete acts, the filing deadline is three years after either the end of treatment or the date the plaintiff discovered or reasonably should have discovered the negligence, whichever is earlier. Caughell v. Group Health Co-op., 124 Wash.2d 217, 236-37, 876 P.2d 898 (1994). Knowledge of the injury alone is insufficient. Winbun, 143 Wash.2d at 218, 18 P.3d 576. Specific negligent acts or omissions by the health care provider must be known, requiring access to the relevant medical records. Id.

Mr. Webb alleged negligence over the entire course of treatment, which ended about November 11, 1999. If treatment ended on November 11, 1999, his November 26, 2001 filing was well within the three-year filing period.

A plaintiff has no duty to seek out evidence of medical negligence if another "facially logical explanation" for the injury exists. Id. at 219-20, 18 P.3d 576. In Winbun, a patient sued a family physician, an emergency room physician, and the hospital. More than three years later, she joined the hospital attending physician. The court denied this doctor's motion for summary judgment, citing Lo v. Honda Motor Co., 73 Wash.App. 448, 869 P.2d 1114 (1994). In Lo, a mother sued Honda Motor Company, for injuries to her child. Meanwhile, the limitations period ran with respect to negligent medical treatment. The court declined to find the mother had a duty as a matter of law to inquire specifically about the possibility of medical malpractice when there was "another facially logical explanation" for the injury. Lo, 73 Wash.App. at 456, 869 P.2d 1114.

The parties dispute when Mr. Webb should have known of Dr. Chupurdia's alleged malpractice. Mr. Webb argues he first discovered Dr. Chupurdia's negligent conduct in October 1999 after receiving the GAL report. Before that time, he attributed his difficulties solely to Ms. Ellis. Dr. Chupurdia argues Mr. Webb must certainly have discovered the alleged malpractice by November 18, 1998 when he expressed similar beliefs in his show cause affidavit. Given the lack of facts available to Mr. Webb in November 1998 as shown in this...