NANCY FECHNER, individually and as Personal Representative for the ESTATE OF DENNIS FECHNER (deceased), Appellant,
SCOTT VOLYN, doing business as VOLYN LAW FIRM, PLLC, Respondent, JANE DOE VOLYN, wife of Scott Volyn, Defendant.
Fechner, on behalf of herself and as personal representative
for the estate of Dennis Fechner, appeals a summary judgment
order dismissing her legal malpractice claims against Scott
Volyn and the Volyn Law Firm (collectively
"Volyn"). Because material issues of fact exist as
to whether Mrs. Fechner can state a claim against Volyn, we
reverse and remand for further proceedings.
Fechner died on October 28, 2009. His wife, Nancy Fechner,
believes his death was caused by inappropriate medications
prescribed by his dermatologist, Dr. Daniel Dietzman. The
date of Dr. Dietzman's last prescription for Mr. Fechner
was in May 2009. Mrs. Fechner took her potential medical
negligence wrongful death claim to Scott Volyn at the Volyn
to Mrs. Fechner, she first met with Mr. Volyn in October
2011. Mrs. Fechner states Mr. Volyn told her he thought she
had a good case and would take it on. According to Mr. Volyn,
he did not begin representing Mrs. Fechner until at least
August 2012 when Mrs. Fechner signed paperwork authorizing
Volyn to investigate her case.
formally withdrew from representing Mrs. Fechner on April 5,
2013. Mrs. Fechner then found another attorney and on October
25, 2013, filed her complaint against Dr. Dietzman for
wrongful death due to injuries resulting from health care.
Mrs. Fechner later stipulated to dismissal of her lawsuit
against Dr. Dietzman due to a belief that the applicable
statute of limitations had lapsed.
Fechner subsequently brought a legal malpractice action
against Volyn. The trial court granted Volyn summary judgment
dismissal of Mrs. Fechner's claims. Mrs. Fechner
unsuccessfully moved for reconsideration of the trial
court's dismissal order. Mrs. Fechner appeals.
negligence statute of limitations
parties' initial dispute is purely legal and pertains to
when Mrs. Fechner's claims against Dr. Dietzman would
have accrued for statute of limitations purposes. Our
starting point is the medical negligence statute of
limitations (MNSOL). The MNSOL requires a claim for medical
negligence be filed either within three years of a negligent
act or omission or one year from when the negligence should
have been discovered, whichever date is later. RCW 4.16.350.
In cases where a plaintiffs claim is for "wrongful death
resulting from negligent health care, " the MNSOL
applies, not the general torts catchall limitations period
set forth at RCW 4.16.080(2). Fast v. Kennewick Pub.
Hosp. Dist, 187 Wn.2d 27, 29, 384 P.3d 232 (2016).
to Mrs. Fechner, the MNSOL's three-year period began
running when Dr. Dietzman last prescribed the allegedly
inappropriate medication to Mr. Fechner in May 2009. Because
Mrs. Fechner by her own admission first learned the impact of
Dr. Dietzman's prescription at the time of her
husband's death, she claims the MNSOL's one-year
discovery period would have started to run in October 2009.
Given these two available start dates, Mrs. Fechner contends
the statute of limitations on the claims against Dr. Dietzman
would have expired in May 2012, unless a request for
mediation under RCW 7.70.110 was made prior to that date. Had
a timely request for mediation been made, the MNSOL would
have been tolled until May 2013. But because no mediation
request was made prior to May 2012, Mrs. Fechner argues the
statute of limitations for the claims against Dr. Dietzman
expired in May 2012.
contends that any claims based on wrongful death accrued on
the date of Mr. Fechner's death, October 28, 2009,
regardless of the date of the negligent act or omission that
led to death. Thus, the latest expiration date of Mrs.
Fechner's claims without a mediation request under RCW
7.70.110 was October 28, 2012. Because a mediation request
was submitted in September 2012, Volyn claims the statute of
limitations for Mrs. Fechner's wrongful death claims was
extended to October 28, 2013.
to Volyn, the Supreme Court's decision in Fast
establishes that when a medical negligence claim manifests
itself as a wrongful death action, the statute of limitations
does not accrue until the date of death. Fast
addressed a medical negligence case involving the wrongful
death of an unborn child. 187 Wn.2d at 33. The Fasts
requested mediation several days shy of the three-year
anniversary of their child's death. Id. at
31-32. Thus, they claimed under the MNSOL the time period for
filing a legal claim had been extended an additional year.
Id. at 33. The medical provider defendants countered
that the MNSOL did not apply to wrongful death actions.
Id. Instead, the general torts catchall three-year
limitation period applied. Id. Since the catchall
three-year limitation period does not include a one-year
tolling provision for a good faith mediation request, the
defendants claimed the plaintiffs' complaint was
untimely. Id. at 33, 37.
Supreme Court agreed with the Fasts that wrongful death
actions based on medical negligence fall under the MNSOL.
Fast, 187 Wn.2d at 33-34. The court noted that its
holding might sometimes work an injustice to plaintiffs.
Id. at 39. Because the three-year MNSOL is triggered
by the act of negligence, not the date of death, the time for
filing a claim could expire even before death. Id.
Nevertheless, in the case at bar, no injustice was at risk