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Winbun v. Moore3/8/2001
or Winbun's failure to discover her claim against Dr. Epstein is unpersuasive. Winbun's inability to use the discovery process to obtain additional information regarding Dr. Epstein's negligence until after the three year limitation period had expired was entirely caused by Winbun's decision to await filing suit against the various defendants until the last few days of the limitation period. Winbun could have taken legal action at any time during the three-year period following her emergency surgery. Winbun's unwise decision to wait until just days before the limitation period expired does not excuse her failure to discover the necessary facts and sue the correct defendant(s) within the normal limitation period. 'An injured claimant who reasonably suspects that a specific wrongful act has occurred is on notice that legal action must be taken.' Beard v. King County, 76 Wn. App. 863, 868, 889 P.2d 501 (1995).
Winbun clearly knew in early 1994 that she had been injured as a result of medical malpractice. Winbun clearly knew that she needed to take legal action to protect her interests no later than early June 1995, when she met with attorney Gould. Winbun had specific notice from her own medical expert that Dr. Epstein was a likely defendant in January 1996. If Winbun had been diligent in pursuing this case, she would have discovered the negligence of Dr. Epstein and brought suit against him well before the three-year limitation period elapsed.
The one-year discovery period in RCW 4.16.350 is intended to protect the claims of plaintiffs who do not know, and cannot immediately discover, they have a cause of action for medical malpractice. Until today, the rule has never been interpreted to apply to plaintiffs who sit on their known rights and fail to file suit until after the normal three-year period has expired. The Court of Appeals' application of RCW 4.16.350 adequately protects injured persons who do not know and cannot immediately discover that they have been injured by medical malpractice. The majority's holding serves only to excuse Winbun's failure to exercise the reasonable diligence required by this Court in Reichelt, 107 Wn.2d at 772, and Green, 136 Wn.2d at 96.
This case is difficult because Dr. Epstein is an unsympathetic defendant. Moreover, the jury was instructed on the statute of limitations and rendered a verdict in favor of the defendant. But our application of the law cannot be swayed by these facts. Under our traditional application of the discovery rule as mandated by RCW 4.16.350, Winbun's claim against Dr. Epstein was barred in April 1996, three-years after she was misdiagnosed and injured, and more than one year after she knew or should have known of all the statutory elements of her claim as a reasonable and diligent inquiry would have revealed.
I would affirm the decision of the Court of Appeals.
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