Bixler v. Bowman

614 P.2d 1290, 94 Wash. 2d 146, 1980 Wash. LEXIS 1347

• Court: Washington Supreme Court
• Decided: August 7, 1980
• Docket: 46813
• Status: Published

Opinions

Dolliver, J.

Plaintiffs' medical malpractice complaint was dismissed for failure to state a cause of action. CR 12(b)(6). The trial court held the statute of limitations had run; the Court of Appeals reversed. Bixler v. Bowman, 24 Wn. App. 815, 604 P.2d 188 (1979). Plaintiffs' amended complaint alleged the following facts:

Plaintiff Dorothy Bixler had been a patient of defendant Dr. Howard Bowman since 1957. On January 23, 1975, she complained to him about a lump in her right breast. Dr. Bowman prescribed a course of self-examination and advised her to consult him as she felt necessary. Mrs. Bixler again consulted Dr. Bowman about the lump on April 29, 1975. The doctor advised her to continue her self-examination. She did not see him again.

On August 4, 1975, Mrs. Bixler went to another doctor who promptly diagnosed her condition as a "probably malignant tumor". Three days later, a radical mastectomy was performed to remove her right breast. After the operation she received radiation and chemotherapy treatment. Nevertheless, the cancer spread and on April 1, 1977, it was necessary to perform a radical mastectomy to remove her left breast.

On June 8, 1978, Mrs. Bixler filed a medical malpractice action alleging that Dr. Bowman was negligent in failing to diagnose her condition as cancer and that his failure to provide reasonable treatment was the proximate cause of the spreading of the cancer.

Plaintiff asserts the statute of limitations began to run on August 4, 1975, the date of her first visit to another physician. Defendant contends the statute began to run on April 29, 1975, the date of plaintiff's last visit to him. We agree with defendant, reverse the Court of Appeals and reinstate the order of dismissal of the trial court.

The statute governing is the 1971 act, Laws of 1971, ch. 80, § 1, p. 194 (RCW 4.16.350), which reads:

Any civil action for damages against... a member of the healing arts including, but not limited to, a physician licensed under chapter 18.71 RCW . . . based upon alleged professional negligence shall be commenced within (1) three years from the date of the alleged wrongful act, or (2) one year from the time that plaintiff discovers the injury or condition was caused by the wrongful act, whichever period of time expires last.

To determine the applicability of this statute, it is necessary to review the legislative and case history prior to its passage. Before 1971, there was no separate medical malpractice statute of limitations; these cases fell within the limitation statutes applicable to all tort claims. Actions for injury to the person were limited to 3 years after the "cause of action shall have accrued". RCW 4.16.010; RCW 4.16-.080.

In Lindquist v. Mullen, 45 Wn.2d 675, 277 P.2d 724 (1954), the surgeon left inside a patient a sponge which was not discovered until 7 years after the operation. The court held the cause of action accrued at the time of the wrongful act that caused the injury and denied recovery.

The rigid application of the statute of limitations in Lindquist was overruled in Ruth v. Dight, 75 Wn.2d 660, 453 P.2d 631 (1969). This case held that in medical malpractice cases the cause of action accrues when the injury was discovered or reasonably should have been discovered rather than at the time of the alleged wrongful act. A month later, in Samuelson v. Freeman, 75 Wn.2d 894, 454 P.2d 406 (1969), the court set forth the continuing course of treatment rule. That doctrine stated:

[I]f malpractice is claimed during a continuous and substantially uninterrupted course of treatment for a particular illness or condition, the statute does not begin to run until the treatment for that particular illness or condition has been terminated.

Samuelson, at 900. The Court of Appeals, relying on Samuelson, held it could not find as a matter of law that plaintiff's treatment ceased with her last visit.

What is the impact of Laws of 1971, ch. 80, § 1, p. 194 (RCW 4.16.350)? Legislative history indicates the legislature was well aware of our cases concerning the statute of limitations for medical malpractice. House Journal, 42d Legislature (1971), at 598-600; see Teeter v. Lawson, 25 Wn. App. 560, 610 P.2d 925 (1980). We presume the legislature to be familiar with past judicial interpretation of statutes. State v. Fenter, 89 Wn.2d 57, 569 P.2d 67 (1977).

The 1971 statute was significantly different from the previous statute of limitations and our interpretation of that statute. The concept of the accrual of a cause of action contained in the general statute of limitations was eliminated. In its place is language that any action shall commence within 1 year of the time plaintiff discovers the injury or condition was caused by the wrongful act. The rule in Ruth v. Dight, supra, thus is limited to 1 year from the date of actual discovery of the injury or condition. (Laws of 1975, 2d Ex. Sess., ch. 56, § 1, p. 214-15, broadened the statute to "discovered or reasonably should have discovered".) Since plaintiff alleges to have discovered her condition on August 4, 1975, under this provision of the statute, she had 1 year to preserve her action. She did not do so.

Likewise, the 1971 statute substantially modified the continuing course of treatment rule formulated in Samuelson v. Freeman, supra. Under Samuelson, the cause of action would not accrue until, when there was a continuous and substantially uninterrupted course of treatment for a particular illness, the treatment for the particular illness or condition had been terminated. The 1971 statute restricts the commencement of the action to within "three years from the date of the alleged wrongful act". (Italics ours.) The concept of the termination of a "continuing course of treatment" has been succeeded by the designation of a "date of the alleged wrongful act".

The date of the alleged wrongful act was April 29, 1975, the last time plaintiff consulted with defendant. Plaintiff argues that, even if the date of the alleged wrongful act is April 29, 1975, what actually occurred was a wrongful omission and that the discovery of an alleged omission continues to be governed by RCW 4.16.080(2). Since plaintiff did not discover the "omission" of defendant until August 4, 1975, she claims the statute did not run until August 4, 1978. Plaintiff offers no cases where this distinction has been made in medical malpractice cases (see generally 80 A.L.R.2d 368, 374 (1961)), nor has it been made by us. See Samuelson v. Freeman, supra. It is implausible to believe the legislature, in enacting a specific medical malpractice act, would intend the acts of a physician to be covered by one statute while omissions would be covered by another. Finally, the 1971 act requires "Any civil action for damages against... a physician . . . based upon alleged professional negligence" to be brought within the designated time limit. (Italics ours.)

Plaintiff had 1 year from the date of discovering the alleged malpractice of defendant or 3 years after the actual act, whichever was later, to bring her action. The legislature is empowered to set these limitations. See Ruth v. Dight, supra. Since she failed to act within the statutory limitation, the action of plaintiff is barred.

Reversed.

Utter, C.J., and Stafford, Brachtenbach, and Hicks, JJ., concur.