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Gen Lo v. Honda Motor Co.3/28/1994
is never told by any of those doctors that the condition could have been caused at least in part by medical error or omission, has failed to exercise that degree of due diligence required of a legal representative of a claimant under RCW 4.16.350, simply for failure to ask specifically about medical malpractice, particularly when the client has been told that sometimes these things just happen, and particularly when there reasonably appears to be a causal connection between the premature birth and the vehicle accident. We believe that the day has not yet come when attorneys must automatically suspect medical malpractice to be a proximate cause of every adverse medical outcome. We also believe that a rational trier of fact could determine that the first notice the law firm had that the focus of its causation inquiry should be expanded to include the care Lo and Brian received during labor and delivery came in April 1991 (when Dr. Brown expressed reluctance to comment on care given by Puget Sound area physicians). This lawsuit was filed within 1 year of that date.
This would, of course, be an easier case, and in fact it is unlikely that there would be a limitations issue, if any of the physicians who were contacted in 1990 had been asked, "Could Brian's cerebral palsy be the result of a medical error or omission?" Still, there is nothing in the record to indicate that if that specific question had been asked of Dr. Nora Davis or any of the other doctors who were contacted
by the law firm, the answer would have been "yes". These same physicians told Lo on numerous occasions that sometimes these things just happen, implying that the condition could not have been prevented. Even now, all of the medical experts presented by the defense are answering the specific question that Lo's attorneys failed to ask in 1990 with a resounding "no".
Just as it appears that reasonable minds can differ on the question of whether Brian's condition was preventable under the applicable standard of medical care, so also do we believe that reasonable minds could differ on the question of whether the Kargianis firm exercised due diligence on Lo's behalf under RCW 4.16.350 and the applicable standard of legal care, whatever that standard may ultimately prove to be. This being so, the question of the Kargianis firm's due diligence on Lo's behalf is one for the trier of fact. None of the cases presented by the Petitioners dictates a different result. In fact, none of those cases deals with due diligence of an attorney-representative of a claimant. " hen 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 Wash. 2d 15, 34-35, 864 P.2d 921 (1993) (citing Honcoop v. State, 111 Wash. 2d 182, 194, 759 P.2d 1188 (1988); Ohler v. Tacoma Gen. Hosp., 92 Wash. 2d 507, 510, 598 P.2d 1358 (1979)). Having determined that due diligence both of Lo and her attorneys is a question of fact in this case, we affirm the trial court and remand for trial.
Disposition
Holding that material issues of fact concerning the applicability of the discovery rule existed and could not be resolved as a matter of law, the court affirms the denial of the motion.
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