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Fechner v. Volyn

Court of Appeals of Washington, Division 3

May 22, 2018

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.

          Pennell, J.

         Nancy 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.


         Dennis 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.[1] Mrs. Fechner took her potential medical negligence wrongful death claim to Scott Volyn at the Volyn Law Firm.

         According 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.

         Volyn 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.

         Mrs. 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.


         Medical negligence statute of limitations

         The 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).

         According 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.

         Volyn 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.

         According 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.

         The 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 ...

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