BILL REQ. #:  H-4990.1 

Read first time 02/14/2004.   Referred to .

     AN ACT Relating to the time period for bringing an action for personal injury or death resulting from health care; amending RCW 4.16.350; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature intends, by establishing a six-year statute of repose in RCW 4.16.350, to respond to the court's decision in DeYoung v. Providence Medical Center, 136 Wn.2d 136 (1998), by expressly stating the legislature's rationale for a statute of repose.
     The legislature recognizes that a six-year statute of repose alone may not solve the crisis in the medical insurance industry. However, to the extent that a six-year statute of repose has an effect on medical malpractice insurance, that effect will tend to reduce rather than increase the cost of malpractice insurance.
     Whether or not the statute of repose has the actual effect of reducing insurance costs, the legislature finds it will provide protection against claims, however few, that are stale, based on untrustworthy evidence, or that place undue burdens on defendants.
     In accordance with the court's opinion in DeYoung, the legislature further finds that compelling even one defendant to answer a stale claim is a substantial wrong, and setting an outer limit to the operation of the discovery rule is an appropriate aim.
     The legislature further finds that a six-year statute of repose is a reasonable time period in light of the need to balance the interests of injured plaintiffs and the health care industry.
     The legislature intends to establish a six-year statute of repose in section 2 of this act and specifically set forth for the court the legislature's legitimate rationale for adopting the six-year statute of repose. The legislature further intends that the six-year statute of repose established in section 2 of this act be applied to actions commenced on or after the effective date of this act.

Sec. 2   RCW 4.16.350 and 1998 c 147 s 1 are each amended to read as follows:
     (1) Any civil action for damages that is based upon alleged professional negligence, that is for an injury or condition occurring as a result of health care which is provided after June 25, 1976, and that is brought against((:
     (1))) a person or entity identified in subsection (2) of this section, shall:
     (a) With respect to a patient who was eighteen years old or older at the time of the act or omission alleged to have caused the injury or condition, be commenced by the later of:
     (i) Three years from the act or omission; or
     (ii) One year from the time the patient or his or her representative discovered or reasonably should have discovered that the injury or condition was caused by the act or omission; and
     (b) With respect to a patient who was under the age of eighteen years at the time of the act or omission alleged to have caused the injury or condition, be commenced by the later of:
     (i) When the patient reaches age twenty-one or six years from the act or omission, whichever occurs first; or
     (ii) One year from the time the patient or his or her representative discovered or reasonably should have discovered that the injury or condition was caused by the act or omission; and
     (c) Notwithstanding (a) or (b) of this subsection, in any event be commenced no later than six years after the act or omission.
     (2) Persons or entities against whom an action is brought under subsection (1) of this section include:
     (a) A person licensed by this state to provide health care or related services, including, but not limited to, a physician, osteopathic physician, dentist, nurse, optometrist, podiatric physician and surgeon, chiropractor, physical therapist, psychologist, pharmacist, optician, physician's assistant, osteopathic physician's assistant, nurse practitioner, or physician's trained mobile intensive care paramedic, including, in the event such person is deceased, his or her estate or personal representative;
     (((2))) (b) An employee or agent of a person described in (a) of this subsection (((1) of this section)), acting in the course and scope of his or her employment, including, in the event such employee or agent is deceased, his or her estate or personal representative; or
     (((3))) (c) An entity, whether or not incorporated, facility, or institution employing one or more persons described in (a) of this subsection (((1) of this section)), including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, employee, or agent thereof acting in the course and scope of his or her employment, including, in the event such officer, director, employee, or agent is deceased, his or her estate or personal representative((;
based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later, except that in no event shall an action be commenced more than eight years after said act or omission: PROVIDED, That)).
     (3) The time for commencement of an action is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect, until the date the patient or the patient's representative has actual knowledge of the act of fraud or concealment, or of the presence of the foreign body; the patient or the patient's representative has one year from the date of the actual knowledge in which to commence a civil action for damages.
     (4) For purposes of this section, ((notwithstanding RCW 4.16.190,)) the knowledge of a custodial parent or guardian shall be imputed to a person under the age of eighteen years, and such imputed knowledge shall operate to bar the claim of such minor to the same extent that the claim of an adult would be barred under this section. Any action not commenced in accordance with this section shall be barred.
     For purposes of this section, with respect to care provided after June 25, 1976, and before August 1, 1986, the knowledge of a custodial parent or guardian shall be imputed as of April 29, 1987, to persons under the age of eighteen years.
     This section does not apply to a civil action based on intentional conduct brought against those individuals or entities specified in this section by a person for recovery of damages for injury occurring as a result of childhood sexual abuse as defined in RCW 4.16.340(5).