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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON SARAH A. EVISON, a single woman, Appellant,

v. DAVID VOSSLER, M.D., individually, and as a member of a marital community composed of David Vossier and Jane Doe Vossier; and VALLEY MEDICAL CENTER

- KING COUNTY PUBLIC HOSPITAL DISTRICT NO. 1, Respondents, GLAXOSMITHKLINE, LLC, a foreign limited liability company; and DSM PHARMACEUTICALS, INC., a foreign corporation,
Defendants. No. 70491-5- DIVISION ONE

UNPUBLISHED OPINION

FILED: September 29, 2014 

### Schindler, J. — InWaples v. Yi, 169 Wn.2d 152, 234 P.3d 187 (2010), the court 

### invalidated the statutory 90-day presuit notice requirement offormer RCW 7.70.100(1) 

### (2007) for lawsuits against medical providers. Waples, 169Wn.2d at 160-61. On March 9, 2012, Sarah A. Evison filed a lawsuit against drug manufacturers GlaxoSmithKline LLC and DSM Pharmaceuticals Inc.,1 and David Vossier MD and

1GlaxoSmithKline and DSMPharmaceuticals, manufacturers of the antiepileptic drug Lamictal, are not parties to the appeal.No. 70491-5-1/2 

### Valley Medical Center - King County Public Hospital District No. 1 (Valley), alleging negligent prescription and treatment that resulted in her permanent vision loss. After Evison filedthe lawsuit, the Washington Supreme Court held that as 

### applied to the state and localgovernmental entities, the statutory 90-day presuit notice requirement was constitutional under article II, section 26 of the Washington State Constitution. McDevitt v. Harborview Med. Ctr.. 291 P.3d 876. 883 (2012V The trial 

### court granted summaryjudgmentdismissal ofthe lawsuit against Valley for failure to file



### a 90-day presuit notice of intent to sue underformer RCW7.70.100(1) (2007). Evison filed an appeal. During the pendency ofthe appeal, the Supreme Court withdrew the decision in McDevitt. 291 P.3d 876 (2012), and issued a new opinion. InMcDevitt v. Harborview Medical Center. 179 Wn.2d 59, 316 P.3d 469 (2013), the court held that because the plaintiffreasonably relied on Waples, the decision that the 90-day presuit notice requirement applied to medical malpractice actions against the state and local governmental entities "merits prospective-only application and will not apply to this case." McDevitt, 179 Wn.2d at 63. Because the record shows that Evison also reasonably relied on the decision inWaples, we reverse dismissal ofthe lawsuit against Valley for failure to file a notice of intent to file suit, and remand. Statutory Presuit Notice Requirement In 2006, the legislature amended the act governing medical malpractice actions against health care providers, chapter 7.70 RCW. As amended, former RCW 7.70.100 (2006) required a plaintiff to serve a health care provider with a 90-day notice oftheNo. 70491-5-1/3 intent to file a lawsuit. Laws of2006, ch. 8, § 314. Former RCW 7.70.100(1) (2006) states, in pertinent part: No action based upon a health care provider's professional negligence may be commenced unless the defendant has been given at least ninety days' notice ofthe intention to commence the action. Ifthe notice is 

### served within ninety days ofthe expiration of the applicable statute of limitations, the time for the commencement of the action must be extended ninety days from the service ofthe notice. 

### See Laws of 2006, ch. 8, § 314.2 Former RCW7.70.150 (2006) also required a plaintiff to file a certificate of merit from a medical expert withthe complaint. See Laws of 2006, ch. 8, § 304. In2006, former RCW 4.92.110 and former RCW 4.96.020 required a plaintiffto 

### file a 60-day presuit notice for all claims against the state and local governmental entities. See Laws of 2006, ch. 82, §§ 2, 3. Former RCW4.92.100 (2006) states all tort claims againstthe state fordamages shall be filed withthe riskmanagement division. See Laws of 2006, ch. 82, § 1. Former RCW 4.92.110 (2006) states: No action shall be commenced against the state, or against any state 

### officer, employee, or volunteer, acting insuch capacity, fordamages 

### arising out of tortious conduct until sixty days have elapsed after the claim is presented to and filed with the riskmanagement division. The 

### applicable period oflimitations within which an action must be commenced shall be tolled during the sixty-day period. Former RCW 4.96.020(4) (2006) states, in pertinent part: 

### No action shall be commenced against any local governmental entity, or 

### against any local governmental entity's officers, employees, orvolunteers, acting in such capacity, for damages arising out oftortious conductuntil sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof. The applicableperiod oflimitations within which an action must be commenced shall be tolled during the sixty-day period. 2The legislature amended RCW 7.70.100(1) in 2007 butthe90-day presuitnotice requirement remained the same. See Lawsof2007, ch. 119, § 1. Unless otherwise noted, reference to RCW 7.70.100(1) is to the former 2007 statute.No. 70491-5-1/4

In 2009, the legislature amended former RCW 4.92.110 (2006) and former RCW 4.96.020 (2006) to avoid inconsistent presuit notice requirements for medical malpractice actions against the state and local governmental entities. Laws of 2009, ch. 433, §§1,3. As amended, the statutes expressly exclude lawsuits against the state and local governmental entities "involving injuries from health care" from the 60-day presuit notice requirement. Former RCW 4.92.100(1) (2009); see ajso Laws of 2009, ch. 433, § 2. The statutes unequivocally state that all medical malpractice claims against the state or local governmental entities shall be "governed solely by the 

### procedures setforth inchapter 7.70 RCW and are exemptfrom" the requirements of former RCW4.92.110 (2006) and former RCW4.96.020(1) (2006). Former RCW 4.92.100(1) (2009); see also Laws OF 2009, ch. 433, §§1,2. As amended, former RCW 4.92.100(1) (2009) states, in pertinent part: 

### All claims againstthe state, or againstthe state's officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct, except for claims involving injuries from health care, shall be 

### presented to .. . the riskmanagement division. . . . Claims involving 

### injuries from health care are governed solely by the procedures setforth in chapter 7.70 RCW and are exempt from this chapter. 

### Laws of 2009, ch. 433, § 2.3 Former RCW 4.96.020(1) (2009) states, in pertinent part: 

### The provisions of this section apply to claims fordamages against alllocal 

### governmental entities and theirofficers, employees, or volunteers, acting in such capacity, except that claims involving injuries from health care are governed solely by the procedures set forth in chapter 7.70 RCW and are exempt from this chapter. Laws of 2009, ch. 433, §1.4

3 Emphasis in original. 4Emphasis in original.No. 70491-5-1/5

In Putman v. Wenatchee Valley Medical Center, PS, 166 Wn.2d 974, 216 P.3d 374 (2009), the court held that the certificate of merit requirement of former RCW 7.70.150 violated separation of powers principles and the right of access to courts. Putman, 166 Wn.2d at 984-85. InWaples v. Yi, 169 Wn.2d 152, 234 P.3d 187 (2010), the court adhered to its analysis in Putman and held the 90-day presuit notice requirement offormer RCW 7.70.100(1) violated separation ofpowers principles. Waples, 169 Wn.2d at 160-61. The court held, in pertinent part: 

### Requiring [presuit] notice adds an additional step for commencing a suit to those required by CR 3(a).

. . . 

### The notice requirement of RCW 7.70.100(1) irreconcilably conflicts withthe commencement requirements of CR 3(a) and is unconstitutional because itconflicts with thejudiciary's power to set court procedures. Waples, 169 Wn.2d at 160-61. 

### During the 2012 legislativesession, the legislature amended former RCW 4.92.100(1) (2009) and former RCW 4.96.020 (2009) to remove the exclusion for 

### "claims involving injuries from health care." Lawsof 2012, ch. 250, §§1,2. Following the effective date ofJune 7, 2012, all tort actions againstthe state or local governmental 

### entities are subject to a 60-day presuitnotice requirement. Substitute S.B.6187, 62nd Leg., Reg. Sess. (Wash. 2012). Lawsuit against Dr. David Vossier and Valley Medical Center 

### On March 9, 2012, Sarah A. Evison filed a lawsuit against drug manufacturers GlaxoSmithKline LLC and DSM Pharmaceuticals Inc., and David Vossier MD and Valley 

### Medical Center - King County Public Hospital District No. 1 (Valley). That same day, Evison served the Valley administratorwith a "Standard TortClaim Form."No. 70491-5-1/6 The complaint alleged that after 19-year-old Evison suffered a grand mal seizure,5 she experienced side effects from taking an antiepileptic drug. In July 2008, Evison was referred to Dr. Vossier at the Washington Neuroscience Institute at Valley Medical Centerfor treatment. Dr. Vossier prescribed another antiepileptic drug,
Lamictal. The complaint alleged that inJanuary 2009, Evison told Dr. Vossier she was 

### experiencing side effects from Lamictal. According to Evison, Dr.Vossiertold her the 

### side effects were normal and would gradually go away. Evison alleged she experienced 

### "increasing problems with her memory, her focus, nausea, and stomach pains," and by March, vision problems, including blurred vision and sensitivity to light. The complaint also alleged Dr. Vossiertold Evison and her parents the "symptoms would settle down 

### and not to worry." After Evison withdrewfrom college in March, Dr. Vossier referred Evison to an ophthalmologist. Evison alleged that her previously normal vision had deteriorated to "20/400 bilaterally, with no central vision." 

### On May 11, 2012, Evison served the summons and complaint for personal 

### injuries anddamages onValley. Valley filed an answer to the complaint. Valley denied 

### liability and asserted a numberofaffirmative defenses, including failure tocomply with the statutory requirementtoprovide a 90-day presuit notice ofintenttofile a malpractice lawsuit under former RCW 7.70.100(1). 

### Valley filed a motion for summary judgment dismissal. Valley argued the decisionin Waples did not apply to governmental entities such as a public hospital, and there was no dispute Evison did not complywith the 90-day presuit notice requirement

5The complaintalleged Evison suffered a "generalized tonic clonic" seizure, orgrand mal seizure that affects the entire brain.No. 70491-5-1/7 offormer RCW 7.70.100(1). Inopposition, Evison argued that because the court in Waples made no distinction between private and governmental entities, the 90-day 

### presuit notice requirement was invalid and did not apply. Evison also argued the 60-day presuit notice requirement for tort claims underformer RCW4.92.100 (2009) and former RCW 4.96.020 (2009) did not apply because the statutes expressly excluded actions 

### against health care providers. The court denied the motion for summaryjudgment. On December 18, 2012, Valley filed a "Motion for Summary Judgment Re: Lack 

### of Expert Testimony." Valley noted the motion to be heard on February 1, 2013. Valley 

### argued itwas entitled to summaryjudgmentdismissal because Evison had notidentified any experts on breach of the standard ofcare or proximate cause. In support, Valley attached a copy of the complaint and "Defendants David Vossier, M.D. and Valley 

### Medical Center - King County PublicHospital District No. 1's FirstSet of Interrogatories and Requests for Production to PlaintiffSarah A. Evison and Answers Thereto." Interrogatory 14 requests identification of the names of expert witnesses. In response, Evison states: 

### Experts have not been identified at this time. It is anticipated that certain medical expert(s) will testify as to causation of the injuries and the treatment Sarah Evison received. An Economist will be retained regarding 

### future lostearnings. It is anticipated that certain medical providers may 

### testify as to causation of Sarah Evison's injuries for which they treated. The response to this interrogatorywill be supplemented. 

### Evison filed a CR56(f) motion to continue the Motion for Summary Judgment Re: 

### Lack ofExpertTestimony for 60 to 90 days oruntil the discovery cutoffon June 24, 2013. Trial was scheduled to begin August 12, 2013, the deadlinefor disclosure of 

### "Possible PrimaryWitnesses" wasMarch 11, 2013, and thedeadlinefor disclosure of "Possible Additional Witnesses" was April 22, 2013.No. 70491-5-1/8 Evison asserted several scheduled depositions had not yet taken place and she

was "making arrangements to have all medical records in this case reviewed by a neurologist and also by a neuro-ophthalmologist." In a supplemental declaration, Evison identified an expert she had retained as a consultant and states the medical records had been sent to the expert to review. Valley filed a response to Evison's motion to continue the Motion for Summary Judgment Re: Lack ofExpert Testimony. Valley opposed a continuance, arguing Evison did not show good cause for the delay in obtaining expert testimony. On December 27, 2012, the Washington State Supreme Court issued the decision in McDevitt v. Harborview Medical Center, 291 P.3d 876. The court held that

as applied to the state and local governmental entities, the 90-day presuit notice 

### requirement of former RCW 7.70.100(1) was a constitutional precondition. McDevitt, 291 P.3d at 883. Relying on McDevitt, Valley filed a motion for summaryjudgment 

### dismissal for failure to comply with the statutory 90-day presuit notice requirement under former RCW7.70.100(1). Valley noted the motion to be heard at the same time as the 

### Motion for Summary Judgment Re: Lack of Expert Testimony. The court granted the motion to continue the Motion forSummary Judgment Re: Lack of Expert Testimony 

### until April 12, 2013 butruled, "Themotion on the legal issue/[chapter] 7.70 [RCW] is NOT continued. Itwill be heard this Friday[, February 1]."6 Following the hearing on 

### February 1,the court dismissedEvison's lawsuitfor failure to comply with the 90-day 

### presuit notice requirement underformer RCW 7.70.100(1 ).7

6Emphasis in original. 7OnFebruary 5, 2013, Evison dismissed DSM Pharmaceuticals, and onMay 24,2013, Evison dismissed GlaxoSmithKline. 8No. 70491-5-1/9 

### Evison appealed. While the appeal was pending, the Washington Supreme Court granted reconsideration in McDevitt to decide whether "the decision should be 

### given only prospective application." Order Granting Motion for Reconsideration, 

### McDevitt v. Harborview Med. Ctr.. No. 85367-3, at 1 (Wash. June 13, 2013). On November 14, 2013, the court withdrew the decision in McDevitt. 291 P.3d 876 (2012), and issued McDevitt v. Harborview Medical Center. 179 Wn.2d 59, 316 

### P.3d469. OrderWithdrawing PreviousOpinion and Substituting New Opinion, McDevitt

v. Harborview Med. Ctr.. No. 85367-3, at 1 (Wash. Nov. 14, 2013). The court held that under article II, section 26 of the Washington State Constitution, the 90-day presuit notice requirement of former RCW 7.70.100(1) applied to medical malpractice lawsuits against the state and local governmental entities. McDevitt, 179 Wn.2d at 76. The 

### court explains that inWaples, it"did not have occasion to considerthe constitutionality of the statute inlight of article II, section 26, as applied incases against state defendants." McDevitt, 179 Wn.2d at 73. Whereas the defendants inWaples were private individuals and private corporations, we have previously determined that Harborview Medical 

### Center is the equivalent of a state agency and arm ofthe state, Hontzv. State, 105 Wn.2d 302, 310, 714 P.2d 1176 (1986). As a result, there were no facts in Waples to address the issue of whether article II, section 26, and the legislature's waiver of sovereign immunity, permitted the legislature to establish conditions precedent before suit can be brought against the State. None ofour relevant case law regarding article II, section 26 or the State's waiver of sovereign immunity was even addressed in the Waples opinion. McDevitt, 179 Wn.2d at 74.8 Accordingly, the court held, "[B]ecause the plaintiff reasonably relied upon this court's holding in Waples and chose to forgo the notice requirement offormer RCW

8 Some internal citations omitted.No. 70491-5-1/10 7.70.100(1),

.. . our decision merits prospective-only application and will not apply to this case." McDevitt, 179 Wn.2d at 63. In concluding the decision merited prospectiveonly application, the court relied on the United States Supreme Court's three-part test in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L Ed. 2d 296 (1971), overruled in part by Harper v. Department ofTaxation, 509 U.S. 86, 113 S. Ct. 2510, 125 L. Ed. 2d 74 (1993). McDevitt, 179 Wn.2d at 75-76. Under the Chevron Oiltest, a case merits prospective-only application ifthe following three conditions are met: "(1)the decision established a new rule of law that either overruled clear precedent upon which the parties relied or was not clearly foreshadowed, 

### (2) retroactive application would tend to impede the policyobjectives of the new rule, and (3) retroactive application would produce a substantially inequitable result." 

### McDevitt, 179 Wn.2d at 75 (quoting Lunsford v. Saberhagen Holdings, Inc., 166 Wn.2d 264, 272, 208 P.3d 1092 (2009)). 

### Valley argues the Supreme Courtin McDevitt erred in applying the ChevronOil 

### test byfailing to consider the effect of the legislative amendments in 2009 reinstating the requirement tofile a 60-day presuit notice, formerRCW4.92.100(1) and former RCW 4.96.020. We disagree. 

### The court in McDevitt recognized its decision clarified the holding in Waples by 

### addressingarticle II, section 26 "in a manner that [theplaintiff] McDevittdid notforesee." McDevitt, 179 Wn.2d at 76. As to the second factor, the court concluded retroactive 

### application of the decisionin McDevittwould impede legislative policy objections because effectiveJune 7, 2012, the legislature amended former RCW 4.92.100(1) 

### (2009) andformer RCW4.96.020 (2009) toremove thereference tochapter7.70 RCW.

10No. 70491-5-1/11 McDevitt, 179 Wn.2d at 76. The court notes that because the 2012 amendments make clearthat claims against the state must be made under RCW 4.92.100, not chapter 7.70 RCW, retroactive application ofthe decision "would impede the legislature's policy objectives as embodied in later adopted provisions." McDevitt, 179 Wn.2d at 76. Indeed, during the pendency of this appeal, the legislature amended RCW 4.92.100(1) to remove the reference to chapter 7.70 RCW. See Laws of 2012, ch. 250, § 1. Since the effective date ofthat statutory change (June 7, 2012), claims must be made under RCW 4.92.100, not under chapter 7.70 RCW. LAWSOF2013, ch. 82, §1. McDevitt, 179 Wn.2d at 76.9 As to the third factor, the court concluded the plaintiff in McDevitt "relied on our 

### unqualified language in Waples when he did notfile notice as prescribed in former RCW 7.70.100(1). Nullifying his cause of action now would, in effect, punish his reliance on

our recent decision: a substantially inequitable outcome." McDevitt, 179 Wn.2d at 76. Evison asserts that because she is inthe same position as the plaintiff in 

### McDevitt, she is entitled to reversal of the summaryjudgmentdismissal of her lawsuit. 

### Valley claims the decisionin McDevitt does not applyprospectively in thiscase because the record shows Evison did not rely on Waples. 

### Judicial decisions may have retroactive or prospectiveapplication. Lunsford, 166 Wn.2d at 270. Retroactiveapplication is " 'overwhelmingly the norm.'" Lunsford, 166 

### Wn.2d at 270 (quoting Robinson v. City of Seattle, 119Wn.2d 34, 74, 830 P.2d318 

### (1992)). Adecision applies retroactively toboth the litigants before the court andall


### cases arising priorto and subsequent to theannouncing ofthenew rule. Lunsford, 166 Wn.2d at 270. "Prospectiveapplication affects only those cases arising after the announcement ofthe new rule." Lunsford, 166 Wn.2d at 270-71. "Acourt may give its

9 Footnote omitted. 11No. 70491-5-1/12 

### decisions prospective-only application to avoid substantially inequitable results." McDevitt, 179 Wn.2d at 75. 

### "[T]hedecision to apply a new rule prospectively must be made in the decision 

### announcing the new rule oflaw" because "[i]t is at that point—when we are engaged in weighing the relative harms ofaffirming or overruling precedent—that courts are in the best position to determine whether a new rule should apply retroactively or 

### prospectively only." Lunsford, 166 Wn.2d at 279. Ifthe court determines the case merits prospective-only application underthe Chevron Oil test, the rule shall apply equally to all similarlysituated litigants. Lunsford, 166 Wn.2d at 279. Once we have resolved the issue of retroactive application, whether 

### by applying the new rule to the parties before this court or by announcing the new rule will apply prospectively only, the rulewill be applied equally 

### to allsimilarly situated litigants with no further balancing of the equities under Chevron Oil or any other test. Lunsford, 166 Wn.2d at 279.10 The record establishes that Evison relied on Waples and is similarly situated to 

### the plaintiffin McDevitt. Evison filed hercomplaint againstValley on March 9, 2012. That same day, Evison filed a StandardTort Claim Form with Valley administration. The Standard Tort Claim Formstates, in pertinent part, "Pursuantto Chapter4.92 

### RCW, thisform is forfiling a tortclaim against the state ofWashington." There is no 

### dispute thatEvison did notprovide Valleywith either a 90-day presuit notice ofthe intenttofile a lawsuit or a 60-day notice of intenttofile a tortclaim fordamages against

10Valley's reliance on Whitakerv. Spiegel. Inc.. 95 Wn.2d 661, 623 P.2d 1147, 637 P.2d 235 

### (1981), is misplaced. InWhitaker, the courtheld thatits new rule should have selectively prospective 

### application, meaning the decision would apply onlyto the parties beforethe court. Whitaker, 95 Wn.2d at 678. In Robinson, theWashington StateSupreme Courtabolished selective prospectivity because it 

### violates theprinciple oftreating similarly situated litigants the same. Robinson, 119Wn.2d at77. 12No. 70491-5-1/13 the state or a local governmental entity. See former RCW 7.70.100(1); RCW 4.92.110; RCW 4.96.020(4). In support ofthe motion for summaryjudgment dismissal for failure to file a 90- day presuit notice of intent to sue under former RCW 7.70.100(1), Valley points out that Evison filed the Standard Tort Claim Form but states, "The Valley Defendants have not been served or otherwise received a Notice of Intent to Sue or similar document." In response, Evison conceded that in relying on Waples, she did not file a presuit notice under former RCW 7.70.100(1). Evison also argued that when she filed her complaint, the statutes requiring 60-day notice ofthe intent to file suit against the state ofWashington or a local governmental entity expressly excluded medical malpractice actions.11 We conclude the decision in McDevitt merits prospectively-only application in
this case. 

### As a separate independent ground to affirm summaryjudgmentdismissal of the lawsuit against Evison, Valley argues it is entitled to summaryjudgmentdismissal 

### because Evison failed to identify experts who would testify as to the standard ofcare and proximate cause. Butthere is no dispute thatthe trial court granted Evison's motion to continue and did not rule on the Motion for Summary Judgment Re: Lack of 

### ExpertTestimony. Because the court did not rule on the motion to dismiss for lack of expert testimony, we decline to do so. See RAP 2.5(a) (a party may present an 

### alternate ground foraffirming a trial courtifthe record has been sufficiently developed to

11 Thelegislature amendedformer RCW4.92.100(1) (2009) andformer RCW4.96.020 (2009) in 2012 to delete the reference to former RCW7.70.100(1) and require a 60-day presuit notice in all tort actions against the state. Laws of2012, ch.250, §§1,2. Butthe amendmentsdid nottakeeffect until June 7, 2012, three months afterEvison filed hercomplaint. See Substitute S.B. 6187, 62ndLeg., Reg. Sess. (Wash. 2012). During the 2013legislative session, the legislature amendedRCW 7.70.100 to remove the requirementtofile a 90-day presuitnotice. Lawsof2013, ch. 82, § 1. 13No. 70491-5-1/14 

### fairly considerthe ground); see also Blueberry Place Homeowners Ass'n v. Northward 

### Homes. Inc.. 126Wn. App. 352, 362, 110P.3d 1145 (2005) (declining to affirm on the basis of alleged bad litigation conduct byone of the parties when it was raised below 

### but notaddressed by the trial court and the record therefore was notsufficiently developed to resolve the issue on that basis). We reverse summaryjudgment dismissal for failure to comply with the presuit filing requirement and remand. 

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WE CONCUR:



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