 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Winbun v. Moore8/30/1999
eged tortfeasor's identity. See McDougal v. Weed, 945 P.2d 175, 177 (Utah Ct. App. 1997) (construing a statute that is identical in all respects here material to RCW 4.16.350(3)). Instead, when relying on RCW 4.16.250(3)'s delayed discovery rule, a plaintiff must investigate and identify all possible defendants within one year of when the plaintiff first suspects that his or her injuries were caused by medical malpractice: "The identity of the practitioner who committed the alleged malpractice is one of the facts that the plaintiff must investigate, and discover, once she has reason to believe that she is the victim of medical malpractice." Flowers v. Walker, 63 Ohio St. 3d 546, 589 N.E.2d 1284, 1288 (1992).
This rule is neither unreasonable nor overly harsh. In most cases not involving fraud, intentional concealment, or a foreign body not intended to have a therapeutic or diagnostic purpose or effect, the plaintiff will quickly suspect that his or her injuries were caused by medical malpractice and have three years to investigate and identify all possible defendants. Indeed, here, Winbun did quickly suspect that her injuries were caused by medical malpractice and had three years to investigate and identify all possible defendants. But even where this is not the case, one year from the date that the plaintiff discovers or with due diligence reasonably should have discovered that his or her injury was caused by medical malpractice is not an unreasonably short period of time to investigate whether the plaintiff has a claim and discover all possible defendants. Gunnier, 134 Wn.2d at 863. Moreover, this rule encourages the prompt filing of accurate claims without undercutting the underlying purpose of the discovery rule:
"The hardship imposed upon a party who is unaware he has an actionable injury until after the limitations period has run is much more severe than that imposed upon a party who knows, or reasonably should know, he has suffered an actionable injury but does not learn the identity of the person who injured him until after the limitations period has passed. The former is in no position to take advantage of the limitations period in which to determine the identity of the party injuring him. The latter, however, knows he has a cause of action, has the time given by the limitations period to attempt to learn the identity of the person who injured him and is not in the position of being barred before ever knowing of his right to sue." Guebard v. Jabaay, 65 Ill. App. 3d 255, 21 Ill. Dec. 620, 623, 381 N.E.2d 1164, 1167 (1978); see also Beard, 76 Wn. App. at 867-68 (discovery rule balances injured claimant's right to legal remedies against threat of having statute of limitations expire before he knows he has been injured).
Therefore, we hold that under RCW 4.16.350(3)'s discovery rule, the one- year statute of limitations commences when the plaintiff knows or reasonably should know that his or her injuries were caused by medical malpractice, regardless of whether the plaintiff knows or reasonably should know the alleged tortfeasor's identity.
In this case, Winbun testified that she suspected that her injuries were caused by medical malpractice sometime in 1993. Although Winbun claims that she had no reason to suspect that Dr. Epstein's negligence caused her injuries until a hospital attorney asked about Dr. Epstein in October 1996, based on her own experts' testimony, Winbun cannot seriously dispute that she could have easily discovered Dr. Epstein's negligence by having an expert review a complete set of her hospital records. It is of absolutely no consequence that she directed her attorney not to investigate her claims immediately because she was stru
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.
|
|