Appellate Court Decides Washington State Medical Malpractice Case Was Filed Too late

162017_132140396847214_292624_nIn its unreported opinion filed on December 5, 2013, the Court of Appeals of the State of Washington (“WA State Court of Appeals”) held in the case it was deciding that the statute of limitations period was neither tolled by a timely request for mediation by the medical malpractice plaintiffs nor by timely service on the defendants, and therefore the plaintiffs’ medial malpractice case was not timely commenced. In reaching its decision, the WA State Court of Appeals had to analyze the interplay among three Washington State statutes.

RCW 4.16.350(3)

RCW 4.16.350(3) is Washington State’s medical malpractice statute of limitations and provides, in relevant part, that medical malpractice actions “shall be commenced within three years of the act or omission alleged to have caused the injury or condition.”

RCW 4.16.170

RCW 4.16.170 states that for the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint. If the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days from the date of service. If following service, the complaint is not so filed, or following filing, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.

RCW 7.70.110

RCW 7.70.110 provides that the making of a written, good faith request for mediation of a dispute related to damages for injury occurring as a result of health care prior to filing a cause of action for medical malpractice shall toll the statute of limitations provided in RCW 4.16.350 for one year. (emphasis added)

In the case the WA State Court of Appeals was deciding, the medical malpractice plaintiffs filed their medical malpractice lawsuit on May 25, 2011 (the alleged incident of medical malpractice occurred on May 29, 2008). On May 26, 2011 (the day after filing the lawsuit in court), the plaintiffs’ lawyer mailed a letter to one of the defendants that invited the defendant “to engage in meaningful mediation with my clients” and cited RCW 7.70.100(3), but the plaintiffs did not immediately serve the defendants with the lawsuit; the defendants were served on August 25, 2011 and on October 3, 2011, respectively, which was after the 90-day period for service that expired on August 23, 2011.

The trial court found that the plaintiffs’ attorney’s May 26, 2011 letter was a request for mediation, but concluded that it was ineffectual due to the suit being filed prior to the mediation request (RCW 7.70.110 requires that the request for mediation be filed prior to filing the medical malpractice lawsuit). The trial court then ruled that it lacked jurisdiction because the lawsuit was not timely served on the defendants, and dismissed the lawsuit. The plaintiffs appealed the dismissal.

The WA State Court of Appeals stated that the plain language of the statute is clear: the one year tolling period provided by RCW 7.70.110 applies only to a written, good faith request for mediation that occurs prior to filing a cause of action under chapter 7.70 RCW. Because the plaintiffs filed their medical malpractice lawsuit on May 25, 2011, one day before they notified the defendants of their intention to file their medical malpractice case and inviting them to mediate the claims, the plaintiffs failed to invoke the tolling provision provided in RCW 7.70.110 and therefore the statute of limitations expired before they served the defendants. The WA State Court of Appeals therefore affirmed the dismissal of the plaintiffs’ medical malpractice case.


If you or a loved one suffered serious injuries or death as a result of medical malpractice in Washington State or in another state in the U.S., you should promptly meet with a Washington State medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or telephone us on our toll-free line (800-295-3959) to be connected with Washington medical malpractice lawyers (or medical malpractice lawyers in your state) who may assist you with your medical malpractice claim.

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This entry was posted on Monday, December 16th, 2013 at 9:46 am. Both comments and pings are currently closed.


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