IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NICHOLAS ALEXANDER CHILDERS, No. 87908-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION CHIYANG WU; and EVERGREENHEALTH,
Respondents.
BIRK, J. — Nicholas Childers brought a medical negligence claim against
Dr. Chiyang Wu and EvergreenHealth (collectively Evergreen). The superior court
granted Evergreen’s motion for summary judgment, dismissing Childers’s claim
with prejudice because he1 failed to file a presuit notice of claim pursuant to RCW
4.96.020 and because his claim had become time barred. Childers appeals,
arguing the court erred because he substantially complied with the notice
requirement and statutory and equitable tolling allow him to reassert his claim after
the time bar. We affirm.
I
Because we are reviewing a grant of summary judgment against Childers,
we present the evidence in a light most favorable to him. See Elcon Constr., Inc.
v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012).
1 Childers’s medical records alternate between using “he/him” and “they/them.” Because Childers’s pro se briefing uses “he/him,” we adopt that usage. No disrespect is intended if Childers uses or prefers “they/them.” No. 87908-1-I/2
Childers was injured after slipping and falling on his left hip while he was
working in May 2021. He sought medical treatment from Evergreen starting in May
2021 and began receiving treatment from Dr. Wu in July 2021. Childers received
care from Dr. Wu from July until October 2021. At the last appointment where he
received care from Dr. Wu, clinical notes indicate Childers was still experiencing
pain in his lower back, hip, and one of his legs. Towards the end of his treatment
at Evergreen, Childers made a complaint with the Department of Labor and
Industries (L&I) about Dr. Wu’s treatment. After ending treatment with Evergreen
and closing his L&I claim in February 2022, Childers sought treatment from the
emergency department at Swedish First Hill Emergency Center and at University
of Washington Medicine Primary Care Family Medicine at South Lake Union for
continued lower back pain.
In May 2024, Childers filed a complaint for medical negligence against
Evergreen, and an amended complaint in July 2024. In his amended complaint,
Childers alleged that by December 2023, he was identified as a good candidate
for spinal surgery. Childers alleged that after surgery in March 2024, the surgical
team told him he would not reach 100 percent recovery because a nerve had been
pinched for two and a half years. Childers alleged that from the date of the
workplace injury to the date of his surgery, he suffered numerous adverse physical
and mental conditions. He alleged Evergreen was negligent by failing to order
diagnostic imaging, providing conflicting information to him and L&I, and
contradicting the findings of an independent medical examiner, several physical
therapists, and an L&I certified determination. He alleged that because of these
2 No. 87908-1-I/3
actions, his spinal injury was not diagnosed or treated in a timely manner, which
resulted in irreversible physical and mental damage.
Evergreen moved for summary judgment, arguing that because it is a public
entity, Childers was required to file a presuit notice of claim pursuant to chapter
4.96 RCW. Evergreen argued that Childers’s claim should be dismissed with
prejudice because the statute of limitations had run, pointing to Dr. Wu’s care of
Childers ending in late 2021. Evergreen filed a declaration stating that Evergreen
makes available on its website the presuit notice of claim form and that Childers
did not file one before or after filing his lawsuit.
Childers conceded he did not file the presuit tort claim notice but argued
Evergreen refused to look into his situation or direct him to complete and file a
claim notice. He argued summary judgment should be denied because it was still
early in discovery and there was a genuine issue of material fact as to when the
statute of limitations accrued. He argued in the alternative that the statute of
limitations should be equitably tolled because Evergreen refused to look further
into his issue despite his voicing his concerns his back injury was not being
accurately assessed and treated properly. He argued he was unable to file earlier
because his medical issues prevented him from seeking legal action. Last, he
argued the statute of limitations should be tolled to allow him to file a written, good
faith notice of mediation and to file a presuit notice of claim. Childers submitted
medical reports from his L&I claim through Evergreen, Swedish Medical Center,
and University of Washington Medical Center.
The court granted Evergreen’s motion. Childers appeals.
3 No. 87908-1-I/4
II
We review summary judgment de novo. Ranger Ins. Co. v. Pierce County,
164 Wn.2d 545, 552, 192 P.3d 886 (2008). “We engage in the same inquiry as
the trial court.” Haley v. Amazon.com Servs., LLC, 25 Wn. App. 2d 207, 216, 522
P.3d 80 (2022). Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” CR 56(c); see
also Ranger Ins. Co., 164 Wn.2d at 554. “ ‘A material fact is a fact upon which the
outcome of the litigation depends, in whole or in part.’ ” Haley, 25 Wn. App. 2d at
216 (internal quotation marks omitted) (quoting Morris v. McNicol, 83 Wn.2d 491,
494, 519 P.2d 7 (1974)).
“ ‘The moving party bears the burden of showing that there is no genuine
issue of material fact.’ ” Blue Ribbons Farms Prop. Owners’ Ass’n v. Mason, 31
Wn. App. 2d 1, 15, 547 P.3d 927 (2024) (quoting Walston v. Boeing Co., 181
Wn.2d 391, 395-96, 334 P.3d 519 (2014)). “ ‘If this burden is satisfied, the
nonmoving party must present evidence demonstrating [a] material fact.’ ” Id.
(quoting Walston, 181 Wn.2d at 395-96). We view all facts and reasonable
inferences in the light most favorable to the nonmoving party. Elcon Constr., Inc.,
174 Wn.2d at 164. “Where no dispute as to the material facts exists, summary
judgment is proper.” Id. at 165.
4 No. 87908-1-I/5
A
Childers argues he substantially complied with RCW 4.96.020 because he
filed several complaints with Evergreen and these complaints fulfilled the purpose
of notifying Evergreen. We disagree. Plaintiffs must present the agent of a local
governmental entity with a tort claim form 60 days before they are allowed to file a
tort claim against the entity. RCW 4.96.020(3), (4); Renner v. City of Marysville,
168 Wn.2d 540, 545, 230 P.3d 569 (2010). With respect to content, “exact
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NICHOLAS ALEXANDER CHILDERS, No. 87908-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION CHIYANG WU; and EVERGREENHEALTH,
Respondents.
BIRK, J. — Nicholas Childers brought a medical negligence claim against
Dr. Chiyang Wu and EvergreenHealth (collectively Evergreen). The superior court
granted Evergreen’s motion for summary judgment, dismissing Childers’s claim
with prejudice because he1 failed to file a presuit notice of claim pursuant to RCW
4.96.020 and because his claim had become time barred. Childers appeals,
arguing the court erred because he substantially complied with the notice
requirement and statutory and equitable tolling allow him to reassert his claim after
the time bar. We affirm.
I
Because we are reviewing a grant of summary judgment against Childers,
we present the evidence in a light most favorable to him. See Elcon Constr., Inc.
v. E. Wash. Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012).
1 Childers’s medical records alternate between using “he/him” and “they/them.” Because Childers’s pro se briefing uses “he/him,” we adopt that usage. No disrespect is intended if Childers uses or prefers “they/them.” No. 87908-1-I/2
Childers was injured after slipping and falling on his left hip while he was
working in May 2021. He sought medical treatment from Evergreen starting in May
2021 and began receiving treatment from Dr. Wu in July 2021. Childers received
care from Dr. Wu from July until October 2021. At the last appointment where he
received care from Dr. Wu, clinical notes indicate Childers was still experiencing
pain in his lower back, hip, and one of his legs. Towards the end of his treatment
at Evergreen, Childers made a complaint with the Department of Labor and
Industries (L&I) about Dr. Wu’s treatment. After ending treatment with Evergreen
and closing his L&I claim in February 2022, Childers sought treatment from the
emergency department at Swedish First Hill Emergency Center and at University
of Washington Medicine Primary Care Family Medicine at South Lake Union for
continued lower back pain.
In May 2024, Childers filed a complaint for medical negligence against
Evergreen, and an amended complaint in July 2024. In his amended complaint,
Childers alleged that by December 2023, he was identified as a good candidate
for spinal surgery. Childers alleged that after surgery in March 2024, the surgical
team told him he would not reach 100 percent recovery because a nerve had been
pinched for two and a half years. Childers alleged that from the date of the
workplace injury to the date of his surgery, he suffered numerous adverse physical
and mental conditions. He alleged Evergreen was negligent by failing to order
diagnostic imaging, providing conflicting information to him and L&I, and
contradicting the findings of an independent medical examiner, several physical
therapists, and an L&I certified determination. He alleged that because of these
2 No. 87908-1-I/3
actions, his spinal injury was not diagnosed or treated in a timely manner, which
resulted in irreversible physical and mental damage.
Evergreen moved for summary judgment, arguing that because it is a public
entity, Childers was required to file a presuit notice of claim pursuant to chapter
4.96 RCW. Evergreen argued that Childers’s claim should be dismissed with
prejudice because the statute of limitations had run, pointing to Dr. Wu’s care of
Childers ending in late 2021. Evergreen filed a declaration stating that Evergreen
makes available on its website the presuit notice of claim form and that Childers
did not file one before or after filing his lawsuit.
Childers conceded he did not file the presuit tort claim notice but argued
Evergreen refused to look into his situation or direct him to complete and file a
claim notice. He argued summary judgment should be denied because it was still
early in discovery and there was a genuine issue of material fact as to when the
statute of limitations accrued. He argued in the alternative that the statute of
limitations should be equitably tolled because Evergreen refused to look further
into his issue despite his voicing his concerns his back injury was not being
accurately assessed and treated properly. He argued he was unable to file earlier
because his medical issues prevented him from seeking legal action. Last, he
argued the statute of limitations should be tolled to allow him to file a written, good
faith notice of mediation and to file a presuit notice of claim. Childers submitted
medical reports from his L&I claim through Evergreen, Swedish Medical Center,
and University of Washington Medical Center.
The court granted Evergreen’s motion. Childers appeals.
3 No. 87908-1-I/4
II
We review summary judgment de novo. Ranger Ins. Co. v. Pierce County,
164 Wn.2d 545, 552, 192 P.3d 886 (2008). “We engage in the same inquiry as
the trial court.” Haley v. Amazon.com Servs., LLC, 25 Wn. App. 2d 207, 216, 522
P.3d 80 (2022). Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” CR 56(c); see
also Ranger Ins. Co., 164 Wn.2d at 554. “ ‘A material fact is a fact upon which the
outcome of the litigation depends, in whole or in part.’ ” Haley, 25 Wn. App. 2d at
216 (internal quotation marks omitted) (quoting Morris v. McNicol, 83 Wn.2d 491,
494, 519 P.2d 7 (1974)).
“ ‘The moving party bears the burden of showing that there is no genuine
issue of material fact.’ ” Blue Ribbons Farms Prop. Owners’ Ass’n v. Mason, 31
Wn. App. 2d 1, 15, 547 P.3d 927 (2024) (quoting Walston v. Boeing Co., 181
Wn.2d 391, 395-96, 334 P.3d 519 (2014)). “ ‘If this burden is satisfied, the
nonmoving party must present evidence demonstrating [a] material fact.’ ” Id.
(quoting Walston, 181 Wn.2d at 395-96). We view all facts and reasonable
inferences in the light most favorable to the nonmoving party. Elcon Constr., Inc.,
174 Wn.2d at 164. “Where no dispute as to the material facts exists, summary
judgment is proper.” Id. at 165.
4 No. 87908-1-I/5
A
Childers argues he substantially complied with RCW 4.96.020 because he
filed several complaints with Evergreen and these complaints fulfilled the purpose
of notifying Evergreen. We disagree. Plaintiffs must present the agent of a local
governmental entity with a tort claim form 60 days before they are allowed to file a
tort claim against the entity. RCW 4.96.020(3), (4); Renner v. City of Marysville,
168 Wn.2d 540, 545, 230 P.3d 569 (2010). With respect to content, “exact
specificity is not required; the claimant simply must provide enough information to
put the government on notice of the claim and its contents.” Id. at 546. Childers
concedes he did not file the presuit notice of claim. Therefore, his failure to comply
bars him from asserting a negligence claim against Evergreen.
Childers argues Evergreen’s behavior equitably estops it from asserting the
pretort notice claim as a defense. “The elements of equitable estoppel are: ‘(1) an
admission, statement or act inconsistent with a claim afterwards asserted, (2)
action by another in [reasonable] reliance upon that act, statement or admission,
and (3) injury to the relying party from allowing the first party to contradict or
repudiate the prior act, statement or admission.’ ” Lybbert v. Grant County, 141
Wn.2d 29, 35, 1 P.3d 1124 (2000) (alteration in original) (quoting Bd. of Regents
of Univ. of Wash. v. City of Seattle, 108 Wn.2d 545, 551, 741 P.2d 11 (1987)).
Childers’s pointing to Evergreen’s alleged misstatements to him about his
condition while he was being treated does not fall within the principles of Lybbert.
Evergreen made the presuit notice of the claim form publicly available on its
website, pleaded the defense in its answer, and timely sought summary judgment.
5 No. 87908-1-I/6
Childers argues that dismissing his claim with prejudice because of failing
to file a presuit notice of claim violates due process by foreclosing his ability to
remedy his claim and have his claim tried before a jury. Because the right to bring
suit against the State is a statutory right created by the waiver of sovereign
immunity, the legislature may prescribe limitations upon that right. Medina v. Pub.
Util. Dist. No. 1 of Benton County, 147 Wn.2d 303, 312, 53 P.3d 993 (2002). The
conditions must be reasonable and not place a substantial burden on government
tort victims to obtain relief. McDevitt v. Harborview Med. Ctr., 179 Wn.2d 59, 68,
316 P.3d 469 (2013). Childers does not show that the notice requirement is
unreasonable or places a substantial burden on him to obtain relief as opposed to
those seeking relief from non-governmental defendants.
B
Childers argues the limitations period was tolled under RCW 4.16.350,
which allows for tolling when the plaintiff did not discover their claim within the
prescribed time. RCW 4.16.350(3) provides that medical negligence claims must
be filed “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 or her representative
discovered or reasonably should have discovered that the injury or condition was
caused by said act or omission, whichever period expires later.”
Evergreen provided care for Childers until February 2022, when L&I closed
his claim, therefore, the latest act Evergreen could have done would be in February
2022, and the latest the three year period could have ended was February 2025.
Furthermore, his visit notes from the University of Washington Medical Center in
6 No. 87908-1-I/7
March 2022 stated he hit a plateau in physical therapy and that his symptoms had
been increasing. Clinician notes from his Swedish First Hill Emergency visit
indicate that in May 2022, Childers stated that “his back is [sic] always been
somewhat suspect but has never hurt like this.” Drawing all inferences in the light
most favorable to Childers, the evidence he supplied in response to the summary
judgment motion does not support a reasonable inference that he was unaware of
his worsening back pain or Evergreen’s alleged negligent acts later than February
2022. As a result, at summary judgment dismissal in February 2025, Childers’s
claim was time-barred under RCW 4.16.350.
Childers argues he made good faith efforts to mediate by filing complaints
with the hospital, which he says should allow him to toll the statute for one year.
RCW 7.70.110 states, “The making of a written, good faith request for mediation
of a dispute related to damages for injury occurring as a result of health care prior
to filing a cause of action under [chapter 7.70 RCW] shall toll the statute of
limitations provided in RCW 4.16.350 for one year.” The request for mediation
must be made in writing and made on the defendant or the defendant’s authorized
agent. Unruh v. Cacchiotti, 172 Wn.2d 98, 114, 257 P.3d 631 (2011). Although
Childers asserts his complaints may have put Evergreen on notice of a potential
claim, Childers does not point to any evidence that shows he made a written
request for mediation on Evergreen, Dr. Wu, or either of their agents.
Childers argues his claim should be equitably tolled because Evergreen
delayed discovery of his injury and prevented earlier filing. Equitable tolling is
permissible when the plaintiff can demonstrate that such extraordinary relief is
7 No. 87908-1-I/8
warranted because “ ‘(1) the plaintiff has exercised diligence, (2) the defendant’s
bad faith, false assurances, or deception interfered with the plaintiff’s timely filing,
(3) tolling is consistent with (a) the purpose of the underlying statute and (b) the
purpose of the statute of limitations, and (4) justice requires tolling the statute of
limitations.’ ” Campeau v. Yakima HMA, LLC, 3 Wn.3d 339, 347, 551 P.3d 1037
(2024) (quoting Fowler v. Guerin, 200 Wn.2d 110, 125, 515 P.3d 502 (2022)).
However, the court cannot conclude that anything prevented Childers from filing a
timely complaint because he did file a complaint within the limitations period, albeit
without complying RCW 4.96.020(4).
Citing Renner, Childers argues his complaint should not have been
dismissed with prejudice because the policy of RCW 4.96.020(5) urges against
forfeiting claims due to minor procedural defects and substantial compliance is
sufficient. RCW 4.96.020(5) states that “[w]ith respect to the content of claims
under this section and all procedural requirements in this section, this section must
be liberally construed so that substantial compliance will be deemed satisfactory.”
Although in discussing former RCW 4.96.010(1), Renner held the contents of the
notice do not need to be perfect to put the government on notice, and the court
reaffirmed the procedural requirement that a notice must be submitted. 168 Wn.2d
at 546. Childers admits he did not file a notice, and the court did not err in
dismissing his complaint for failure to file.
Arguing that the court erred in dismissing his complaint with prejudice,
Childers cites Steinbock v. Ferry County Public Utility District No. 1, 165 Wn. App.
479, 483, 269 P.3d 275 (2011). In Steinbock, where the Steinbocks had brought
8 No. 87908-1-I/9
contract and tort claims against the local public utility, the superior court dismissed
the Steinbocks’ complaint without prejudice. Id. After dismissal without prejudice,
the Steinbocks later brought new negligence claims against the utility, which were
still within the limitations period. Id. at 483. The court was permitted to dismiss
without prejudice because the plaintiffs still had time to file. Here, where Childers
did not file the required notice, the statute of limitations had expired, and Childers
did not show that the statute of limitations should be tolled, the superior court did
not err in dismissing his complaint with prejudice.
C
Childers requests costs on appeal. Because Childers is not the prevailing
party, we deny his request for costs pursuant to RAP 14.2.
Affirmed.
WE CONCUR: