Our law firm did not participate in the lawsuit described in this article.
Many personal injury cases that are dismissed are dismissed because of a failure to initiate the lawsuit prior to the running of the statute of limitations. Of dismissals upheld on appeal many, if not most, were dismissed for the same reason. In our firm we have a six-months policy for the statute of limitations. If the statute is within six months of running, we file. We will still pursue settlement negations if it seems worthwhile to do so, but we take no chances with the statute of limitations.
A recent Court of Appeals opinion illustrates why erring on the side of caution is best in this context. A woman developed a painful infection following a diagnostic laparoscopy. This led to additional surgeries. Portions of both intestines were removed, resulting in her not digesting food normally. She is now at constant risk of dehydration.[1]
The woman sued two of her doctors. A paralegal for her attorney stated she sent a mediation request notice to the doctors. The doctors deny receiving any request to mediate. This would have tolled the statute and given one additional year to file the lawsuit.[2]
Her attorneys argued the mediation request tolling rule created a four year statute of limitations, rather than the three year medical malpractice statute. The Court disagreed, and used the following basketball analogy.
The appropriate analogy is to a basketball team entitled to a one minute time out. If the time out is called during the game, the game clock is stopped for one minute and the game will resume after the time out with the time remaining on the game clock to be played. If the team waits until the game has ended, the time out is of no value because the game is over and the time out cannot bring the game back to life.[3]
The trial court found the proof of mailing defective and dismissed the medical malpractice claims as time barred. The Court of Appeals agreed that the proof of mailing was defective. The Court also noted that the mediation request was not attached to the declaration of mailing, and in fact no copy of the document was produced. Instead, the attorney produced an initial draft of a letter expressing a willingness to mediate.
“The draft letters do not provide any evidence that they were mailed. The fact that incomplete draft letters exist, but completed final copies do not, also suggests that the letters were never completed and mailed.”[4]
The Court noted that prior holdings establish that an offer to attend mediation is not a request for mediation. Rather, it simply expresses a willingness to act.
This case is another example of the importance of being diligent and very cautious with the statute of limitations.
[1] Cortez-Kloehn v. Morrison, 252 P.3d 909 (Wash.App. Div. 3 2011).
[2] The requirement to serve a request for mediation before initiating a medical malpractice lawsuit has since been declared unconstitutional. Putman v. Wenatchee Valley Med. Ctr., 166 Wn.2d 974, 216 P.3d 374 (2009).
[3] Id at. 912, n.2.
[4] Id. at 914. Emphasis in original.