 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Winbun v. Moore8/30/1999
of action against Dr. Epstein on November 6, 1996, more than three years after Dr. Epstein last treated her on April 20, 1993. Therefore, if she timely filed her cause of action against Dr. Epstein, she must have done so under RCW 4.16.350's one-year delayed discovery rule.
"The question of when a patient or representative reasonably should have discovered the injury was caused by medical negligence is normally an issue of fact." Adcox v. Children's Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 34-35, 864 P.2d 921 (1993). If, however, reasonable jurors could reach but one Conclusion, the trial court may decide the issue as a matter of law. Allen v. State, 118 Wn.2d 753, 760, 826 P.2d 200 (1992). "When a trial court denies summary Judgement due to factual disputes, as here, and a trial is subsequently held on the issue, the losing party must appeal from the sufficiency of the evidence presented at trial, not from the denial of summary Judgement." Adcox, 123 Wn.2d at 35 n.9; accord Moore v. Wayman, 85 Wn. App. 710, 718-19, 934 P.2d 707, review denied, 133 Wn.2d 1019 (1997); Bratton v. Calkins, 73 Wn. App. 492, 496, 870 P.2d 981 (1994). Therefore, this court reviews the trial court's denial of Dr. Epstein's motion for a directed verdict on the statute of limitations issue under the sufficiency of the evidence standard:
"In reviewing a trial court's decision to deny a motion for directed verdict or Judgement n.o.v., we apply the same standard as the trial court. A directed verdict or Judgement n.o.v. is appropriate if, when viewing the material evidence most favorable to the nonmoving party, the court can say, as a matter of law, that there is no substantial evidence or reasonable inferences to sustain a verdict for the nonmoving party. The requirement of substantial evidence necessitates that the evidence be such that it would convince "an unprejudiced, thinking mind."" Industrial Indem. Co. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520, 7 A.L.R.5th 1014 (1990) (citations omitted) (footnote omitted), cited in Adcox, 123 Wn.2d at 35.
Dr. Epstein contends that due diligence required Winbun, as a matter of law, to review all of her hospital records and identify all possible defendants in 1993, when she first suspected that medical malpractice caused her injuries. Winbun maintains that she reasonably thought that Drs. Moore and Hill negligently caused her injuries and had no reason to suspect that Dr. Epstein was also negligent until a hospital attorney asked about Dr. Epstein in October 1996. She contends, therefore, that the record supports the jury's special verdict finding that she neither discovered nor with due diligence reasonably should have discovered the factual basis of her cause of action against Dr. Epstein more than one year before she filed her cause of action against him.
RCW 4.16.350(3) provides a statute of limitations with alternate periods in which to file the action, the expiration of three years from the time of the alleged act or omission causing the injury or one year from the time the plaintiff discovers or reasonably should have discovered that his or her injury was caused by medical malpractice, whichever is later.
Notably, the statute does not reference the point in time that the plaintiff discovers or reasonably should have discovered the alleged tortfeasor's identity. Instead, it references the point in time that the plaintiff discovers or reasonably should have discovered that his or her injury was caused by medical malpractice. We conclude that RCW 4.16.350(3) does not toll the statute of limitations until one year after the plaintiff discovers or reasonably should have discovered the all
Page 1 2 3 4 5 6 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|