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Shupe v. Ketting5/25/1999
Panel Eight
Pamela Shupe gave birth to two children after Dr. Effie Jean Ketting performed a tubal ligation to sterilize her. The sterilization procedure involved applying Hulka clips to Ms. Shupe's fallopian tubes immediately following the cesarean section delivery of her third child. Dr. John Perry was her obstetrician for the deliveries of the two children born after the foregoing sterilization procedure. Dr. Ketting assisted in the first of these two births.
Ms. Shupe sued both doctors. The trial court summarily dismissed as beyond the statute of limitation Ms. Shupe's actions against Dr. Ketting for negligence, and for failure to procure her informed consent to the tubal ligation procedure. On the same basis, it dismissed her action against Dr. Perry for fraud and concealment of the truth. Ms. Shupe had filed the action against Dr. Ketting more than three years after the allegedly negligent tubal ligation and more than one year after she learned she was pregnant with the last child. She had amended the complaint and added Dr. Perry as a defendant more than three years after she learned of that pregnancy.
On appeal, Ms. Shupe contends her malpractice action against Dr. Ketting involved a continuing course of treatment, ending when Dr. Ketting acted as assistant surgeon during the first birth. She sued within three years of that date. She further contends the statute of limitation as to Dr. Perry was tolled because he had a duty to advise her of Dr. Ketting's negligence, but, instead, told her that the first pregnancy after the tubal ligation was an "act of God."
We reverse the summary dismissal of Dr. Ketting, but affirm as to Dr. Perry.
FACTS
The parties agree that RCW 4.16.350 applies to Ms. Shupe's causes of actions. That statute imposes either a three-year statute of limitation running from the date of the negligent act, or a one-year limitation from the date of discovery of the medical malpractice, whichever occurs later. It also provides that the limitation period is tolled upon proof of fraud or intentional concealment. The statute reads:
"Any civil action for damages for injury occurring as a result of health care . . . against (1) A person licensed by this state to provide health care or related services . . . based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by such act or omission, whatever period expires later . . .: PROVIDED, That the time for commencement . . . is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose . . . until the date the patient . . . has actual knowledge of the act of fraud or concealment . . .; the patient . . . has one year from the date of the actual knowledge in which to commence a civil action for damages." RCW 4.16.350 (emphasis added).
The following facts are pertinent to a determination of whether Ms. Shupe timely filed her actions against the doctors:
In 1988, Pamela Shupe was pregnant with her third child. She requested her obstetrician, Dr. Effie Jean Ketting, to sterilize her at the time of the scheduled cesarean section delivery. Dr. Ketting delivered the child on October 11, 1988. She also performed a tubal ligation on Ms. Shupe in a procedure that involved placing "Hulka" clips across both fallopian tubes.
On July 24, 1989, Ms. Shupe consulted obstetrician John Perry and learned she was
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