No Minimum Time for Statute of Limitations Disability Toll in Washington
Washington defense counsel had best not breathe a sigh of relief because the statute of limitations on a potential claim has run on the calendar. On the other hand, plaintiff counsel should not despair because a statute may have been missed. In Washington, a short stay in intensive care during which a cause of action accrues may toll a statute of limitations.
Plaintiff in Rivas v. Overlake Hospital filed one day after a three-year statute of limitations had run. Last month, the Washington Supreme Court ruled that the statute of limitations on her medical malpractice claim may have been tolled because of incapacity during four days spent in intensive care during which the cause of action arose. Defendant offered evidence that plaintiff was alert, oriented and aware of her surroundings at all times. Plaintiff’s expert countered that she was incapacitated and not capable of understanding legal proceedings during her intensive care stay; her family described her as unresponsive and out of it.
In reaching its decision, the court analyzed the interaction of the tolling statute and the Guardianship Act, which the tolling statute states determines incompetency or disability. The Court of Appeals had ruled that plaintiff had not been incapacitated long enough to trigger the tolling statute. However, the Washington Supreme Court reversed holding that the tolling statute does not require that a party be incompetent or disabled for any minimum amount of time. A dissent reasoned that the Guardianship Act requires that an inability to manage ones affairs must exist over time for a finding of incapacity.
My knowledge of this case is based on the Supreme Court opinion and dissent. But, as an aside, although the opinion and the tolling statute are clear that the incapacity must be present when the cause of action accrues, I am having a hard time with the chronology because it suggests that the facts supporting the cause of action led to the incapacity and didn’t necessarily exist at the time that the cause of action arose. I find myself wondering how plaintiff consented to the surgery if she were, indeed, incompetent. Whether or not she was able to consent seems like pretty important evidence regarding her capacity; however, the opinion doesn’t mention this.
Anyway, the Washington Supreme Court has ruled, and it would be a mistake to think that this broad reading of incapacity warranting a toll is limited to medical malpractice claims. Why wouldn’t any claim involving a serious injury or trauma implicate this toll? No matter, there is a good chance that a statute of limitations defense may now create collateral issues, litigation and expense.
