WA Supreme Court Rules in Favor of SKW Medical Malpractice Client, Lisa Unruh
The Washington State Supreme Court today filed its opinion in favor of SKW medical malpractice client, Ms. Lisa Unruh.
At nine years old, Lisa Unruh began seeing Dr. Cacchiotti. Because of a severe underbite, her lower jaw was growing faster than her upper jaw. Cacchiotti put Lisa on a treatment plan with braces from 1995 – 1999 with her final visit with him in November 2000. Because of her braces, the roots of her teeth were essentially destroyed. Lisa and her stepmother believed the problems were due to Lisa’s hereditary predisposition to these problems.
In the years that followed, various doctors informed Lisa that her prior orthodontic care had caused her root resorption. However, not until an orthodontist in 2006 took the time to explain the etiology of Lisa’s problem did she realize that Cacchiotti’s negligence was the reason for her root resorption. The bottom line was that her braces were in place for too long.
Ms. Unruh filed a lawsuit soon after realizing the actual cause of her ongoing orthodontic issues. When moving for summary judgement under the statute of limitations, Cacchiotti prevailed.
On appeal, Cacchiotti raised another basis for dismissing Unruh’s claim based on the eight-year statute of repose (enacted in June 2006). RCW 4.16.350, which contained the statute of limitations for medical malpractice claims was amended to include this statute of repose.
Among a number of arguments, Cacchiotti claimed that the 2006 nontolling amendment of RCW 4.16.190 did away with the effect of Unruh’s minority on the tolling of the statute of limitations because the amendment applied retroactively to eliminate tolling during Lisa’s minority. The state Supreme Court disagreed, citing Hanford v. King County, 112 Wash. 659, 662 (1920): “[T]he limitation of the new statute, as applied to pre-existing causes of action, commences when the cause of action is first subjected to the operation of the statute…”
Although her statute of limitations was tolled due to Lisa’s minority and her 90-day notice of intent to sue, she needed the tolling proved by her request for mediation, for her action to be timely. The Supreme Court concluded that she timely filed her claim within the statute of limitations. The 2006 nontolling amendment to RCW 4.16.190 did not eliminate tolling during Lisa’s minorioty. Her notice of intent to sue and request for mediation effectively tolled the statute of limitations until she filed her lawsuit in September 2007.
SKW personal injury lawyers, Paul Whelan, Ray Kahler, and Garth Jones obtained an important victory for Ms. Unruh. This successful result will also help many medical malpractice clients navigating similar facts with regard to RCW 4.16.190. Kudos to Paul, Ray, and Garth!