How to press “pause” on the statute of limitations
Occasionally, our office receives calls from people who suffered from medical malpractice two years and eleven months prior. Because medical malpractice claims require a great deal of review, research and consultation with expert physicians prior to filing, we often advise these people to forward a request for good faith mediation to the health care practitioner or facility.
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 this chapter shall toll the statute of limitations provided in RCW 4.16.350 for one year.
It is important to note that a good faith mediation request will toll both the normal three year statute of limitations, as well as the one year “discovery” statute of limitations, which begins to run when the individual “discovered or reasonably should have discovered” that he has been harmed by a medical provider’s negligence.
The request must be made within the original statute of limitations. Cortez-Kloehn v. Morrison, 162 Wn.App. 166, 171, 252 P.3d 909 (Div 3 2011). The statute does not specify the method of service. Case law has stated that letters merely referencing mediation are inadequate; the letter must request mediation. Breuer v. Douglas D. Presta, DPM, 148 Wn.App. 470, 200 P.3d 724 (Div. 3 2009). An individual wishing to toll the statute of limitations should be careful to send letters to all treating providers: if the malpractice occurred at a hospital, for example, the patient may need to send a letter to the hospital, to a physician, and to the physician’s practice group.