Caution, Complications Ahead – Tolling, RCW 7.70.110 and Wrongful Death Cases
A recent Division 3 case has major implications for plaintiffs who attempt to toll the statute of limitations by requesting mediation under RCW 7.70.110. Generally, a request for good faith mediation under RCW 7.70.110 tolls the three-year statute of limitations for medical malpractice lawsuits. RCW 4.16.350. However, Division Three of the Court of Appeals recently upheld Benton County Superior Court Judge Cameron Mitchell’s decision to grant summary judgment against a family’s wrongful death claims, stating that their request for mediation failed to toll the statute of limitations. Fast v. Kennewick Public Hosp. Dist., 188 Wn.App. 43, 46, 354 P.3d 858 (2015).
The Court reasoned that, because RCW 7.70.110 tolls “damages for injury occurring as a result of health care” rather than wrongful death, the request for mediation cannot toll an action for wrongful death, even when it occurs as a result of health care. RCW 7.70.110 specifically references the medical malpractice statute of limitations, RCW 4.16.350, not RCW 4.16.080. Twenty-five years ago, Division Two held that RCW 4.16.080 is the applicable statute of limitations for wrongful death actions relating to health care, not RCW 4.16.350. Wills v. Kirkpatrick, 56 Wn.App. 757, 785 P.2d 834 (1990).
While it appears likely that the legislature intended to include all health care-related actions, whether they resulted in death or not, the conspicuous absence of RCW 4.16.350 will condemn other plaintiffs to a similar fate. Absent intervention by the legislature, plaintiffs’ attorneys should only resort to sending requests for mediation in cases which do not involve wrongful death.