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Winbun v. Moore3/8/2001
d (4) the decision could lead to unjust results in medical malpractice litigation involving multiple health care providers.
Therefore, the Court of Appeals is reversed, and the judgment on the jury verdict is reinstated.
TALMADGE, J.* (dissenting)
I dissent in this case because the majority lends further confusion to when a civil cause of action in Washington accrues for purposes of a discovery rule associated with a statute of limitations. Moreover, the majority gives short shrift to numerous Washington cases that have addressed and resolved the issue of when a person should have known of the existence of a cause of action. The discovery rule in RCW 4.16.350 is intended to strike a balance between the needs of patients to obtain legal relief for the later discovered consequences of medical malpractice and the needs of doctors to extinguish stale claims after a reasonable limitation period has elapsed. The majority upsets this careful balance. I would affirm the Court of Appeals decision that Gail Winbun knew or should have known of her cause of action against Dr. Stephen Epstein long before her action was actually filed in superior court, and that her cause of action is barred under RCW 4.16.350.
The majority has recounted the facts of this case accurately. Winbun's perforated ulcer was misdiagnosed by her family physician in early 1993.
This misdiagnosis continued even though Winbun was treated on April 17, 1993, in the emergency room (ER) at Highline Community Hospital; the ER physician misdiagnosed Winbun's condition as pelvic inflammatory disease. Seen again at the ER on April 19, 1993, the misdiagnosis continued even though Dr. Epstein, an obstetrician/gynecologist, assumed responsibility for Winbun's care. It was not until April 20, 1993, during emergency surgery, that Winbun's condition was properly analyzed. There is little question Winbun's subsequent hospitalization and posthospitalization disorders resulted at least in part from this improper diagnosis and treatment.
Candidly, it is difficult to see Dr. Epstein's actions here in a sympathetic light. Not only did he fail to properly diagnose Winbun's condition, he neglected to even come to the hospital to personally attend to Winbun, despite numerous calls from the hospital nursing staff. Dr. Epstein did not answer the calls because, for at least part of the time in question, he had turned off his beeper. But Dr. Epstein's obvious negligence must be considered in the context of the statute of limitations issue.
It is essentially undisputed in this case that the key events occurred April 17-20, 1993. We also know Winbun obtained some of her hospital records for April 17-20, 1993, in early 1994. While not her complete hospital file, the records clearly referenced Dr. Epstein's involvement in her case as treating physician, admitting physician, and surgical assistant.
Winbun, a former legal secretary, met with three sets of attorneys regarding a potential lawsuit. She met with Robert Gould on June 12, 1995.
She told him to take no action. She ultimately gave him authority to proceed to investigate a medical malpractice claim on her behalf in January 1996. Gould sought the evaluation of a medical expert who opined that Winbun's family physician and the ER physician were negligent. Gould finally filed a lawsuit against those physicians and Highline Community Hospital on April 12, 1996, just one week before the three-year limitation period elapsed.
In the course of discovery in the case, Winbun herself testified she knew something was wrong with her treatment in April 1993; she felt 'deep in my heart,' 'from the very beg
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