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Hardesty v. Stenchever

filed: April 8, 1996.

MICHELE HARDESTY, APPELLANT,
v.
MORTON STENCHEVER, M.D., AND DIANE STENCHEVER, HIS WIFE, AND THEIR MARITAL COMMUNITY; UNIVERSITY OF WASHINGTON MEDICAL CENTER, AND STATE OF WASHINGTON, RESPONDENTS. MICHELE HARDESTY, RESPONDENT, V. MORTON STENCHEVER, M.D., AND DIANE STENCHEVER, HIS WIFE, AND THEIR MARITAL COMMUNITY; UNIVERSITY OF WASHINGTON MEDICAL CENTER, AND STATE OF WASHINGTON, APPELLANTS.



Superior Court County: King. Superior Court Cause No: 94-2-31801-2 & 93-2-27574-9. Date filed in Superior Court: 1/19/95 & 6/23/94. Superior Court Judge Signing: Liem Tuai.

Written by: Agid, J., Concurred by: Webster, J., Cox, J.

Author: Agid

AGID, J. -- In Hardesty I, Dr. Morton Stenchever appeals the trial court's order denying his motion for summary judgment in a medical malpractice action Michele Hardesty filed against him, the University of Washington Medical Center (UW), and the State of Washington. Hardesty cross-appeals the trial court's dismissal of the UW and the State. In Hardesty II, she appeals the trial court's order vacating a default judgment in her favor. We conclude the trial court properly dismissed the UW and the State in Hardesty I, but that it should have dismissed Stenchever as well. Accordingly, we affirm in part and reverse in part in that case. We conclude the trial court

properly vacated its default order in Hardesty II. We affirm that order and remand for further proceedings.

FACTS

Hardesty filed a complaint against Stenchever, the UW and the State for medical negligence alleging that Stenchever, an employee of the UW, negligently performed a total abdominal hysterectomy on November 5, 1990. Hardesty suffered from severe pelvic pain before the surgery which, she asserted, worsened after the hysterectomy. Hardesty remained in Stenchever's care until January 1992, during which time, she alleges, he failed to diagnose and evaluate her continuing pelvic pain. Hardesty filed her first complaint on November 4, 1993. As an affirmative defense, the defendants raised Hardesty's failure to file a claim with the Office of Risk Management in Olympia as required by RCW 4.92.100.

Under RCW 4.92.100, a plaintiff in a tort suit against the State must present and file her claim with the risk management office. Under RCW 4.92.110, the plaintiff must wait 60 days after filing a claim with the risk management office before initiating a lawsuit. RCW 4.16.350 sets a 3-year statute of limitations for medical negligence actions. Hardesty's attorneys, believing the statute of limitations in Hardesty I had lapsed on November 5, 1993, thought they were precluded from simply dismissing the action and refiling 60 days later. Instead, they proceeded with discovery in an attempt to defend against the defendants' affirmative defense.

The defendants moved for summary judgment based on Hardesty's failure to comply with RCW 4.92.100. The trial court granted the motion in part, dismissing the claims against the UW and the State but allowing the case against Stenchever to go forward. Stenchever petitioned this court for discretionary review of the summary judgment order, which we granted. Hardesty cross-appealed the trial court's order dismissing the UW and the State.

While the appeal in Hardesty I was pending, Hardesty filed a second complaint on December 9, 1994, raising the same claims against the same defendants. She filed her second complaint in reliance on Caughell v. Group Health Coop. of Puget Sound, 124 Wash. 2d 217, 876 P.2d 898 (1994), in which the Supreme Court clarified the statute of limitations for medical negligence actions where the plaintiff alleges continuing negligent treatment. Under Caughell, the 3 year statute of limitations under RCW 4.16.350 does not accrue and begin to run until the last date of negligent medical treatment. Hardesty asserted she had 3 years from the date of her last consultation with Stenchever in January 1992 to file her complaint because, under Caughell, the statute of limitations would not have run until January 1995.

In Hardesty I, Assistant Attorney General Steve Milam appointed William Leedom of Williams, Kastner & Gibbs to represent the defendants. The same day he filed Hardesty II, Hardesty's attorney, Ron Perey, sent a copy of the complaint to Leedom accompanied by a letter asking him if he would accept service on behalf of his clients. He also informed Leedom that he had sent the papers out for formal service of process. Leedom did not, however, receive a copy of the summons. Stenchever, his wife and the attorney general's office at the UW were personally served with copies of the summons and complaint.

On December 12, 1994, Milam filed a notice of appearance on behalf of all the defendants in Hardesty II. Neither he nor Leedom, however, responded to Perey or filed an answer in Hardesty II. On January 4, 1995, Hardesty filed a motion for default. She served the motion on the attorney general, but not Leedom. King County Superior Court Judge Liem Tuai, who also presided over Hardesty I, granted Hardesty's default motion on January 12, 1995. None of the defendants was present or represented at the hearing. The following day, the defendants discovered by serendipity that the default had been entered. They moved to vacate the order and for an order shortening time for

the hearing on the motion to vacate. The court granted the motion to shorten time and heard the motion to vacate on January 19. In the interim, Hardesty's attorney had prepared findings of fact and conclusions of law and a default judgment. On January 18, without notice to the defendants or their attorney, he appeared ex parte and presented the documents to a commissioner. The commissioner signed the documents and entered a default judgment against the defendants for $300,317.75. The defendants learned of the default judgment at the hearing on their motion to vacate the default order. They moved to vacate the January 18 default judgment as well as the January 12 order of default. The trial court granted the defendants' motion.

Discussion

HARDESTY I

We will address Hardesty's cross appeal in Hardesty I first because it presents the threshold issue of the effect of her failure to file a claim with the risk ...


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