This opinion was filed for reeord 

at &: C)O Q1N\ an'Nw 11. Wt y I 

6WJrdXC~ SUSAN L. CARLSON 

SUPREME COURT CLERK 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

SHANE FAST, JAMIE FAST, the marital 

community comprised thereof, ROBERT 

DALTON FAST, and the estate thereof, 

Petitioners, 

v. 

) 

) 

) 

) 

) 

) 

) 

KENNEWICK PUBLIC HOSPITAL ) 

DISTRICT d/b/a KENNEWICK GENERAL ) 

HOSPITAL and d/b/a MID-COLUMBIA ) 

WOMEN'S HEALTH CENTER, a ) 

Washington public hospital district ) 

organized as a government entity, ) 

municipal, or quasi-municipal corporation; ) 

ADAM T. SMITH, D.O., individually and for ) 

the marital community with spouse or ) 

registered domestic partner Jane Doe ) 

Smith; GREGORY SCHROFF, M.D., ) 

individually and for the marital community ) 

with spouse or registered domestic partner ) 

Jane Doe Smith; and DOES 1 through 50, ) 

Respondents. 

) 

) 

) 

No. 92216-1 

En Bane 

Filed _N_o_v _1_?_2_.0_16 __ _ 

WIGGINS, J.-The medical negligence statute of limitations (MNSOL) requires 

filing a claim for medical negligence within three years of the allegedly negligent act 

or omission or within one year of when the negligence is or should have been 

discovered, whichever is later. RCW 4.16.350(3). The MNSOL may be tolled for one 

year upon the making of a good-faith request for mediation. RCW 7. 70.110. 
Fast et a/. v: Kennewick Pub. Hasp. Dist. eta/. 

No. 92216-1 

The general torts catchall statute of limitations is also three years. RCW 

4.16.080(2). However, there is no tolling provision associated with the general torts 

catchall statute of limitations. We hold that in cases of wrongful death resulting from 

negligent health care, the MNSOL (RCW 4.16.350(3)) applies. 

FACTS 

Jamie Fast entered into a doctor/patient relationship with Dr. Adam Smith and 

Kennewick Public Hospital District on January 25, 2008. Jamie1 sought care because 

of difficulty conceiving and menstrual bleeding, which had been heavier and more 

prolonged than normal. At her first appointment, she completed medical history forms 

including questions regarding her health and the health of her relatives. Jamie noted 

that her grandmother had diabetes and both her parents had high cholesterol. 

In late March 2008, Dr. Smith confirmed Jamie was pregnant. Jamie bled for 

the first few months of pregnancy-visiting the emergency room at least once for 

bleeding. Jamie phoned Dr. Smith's office multiple times to inquire about her bleeding. 

Each time, Jamie went to Dr. Smith for an examination or she had an ultrasound at 

the hospital. After each checkup or ultrasound, Dr. Smith assured Jamie that 

everything was fine or normal. 

Several times during the pregnancy, Jamie mentioned excessive thirst and 

frequent urination to Dr. Smith and/or his nursing staff. She was assured that this was 

normal. During an August 8, 2008 visit, Jamie raised concerns about a 10 pound 

1 We refer to Jamie Fast by her first name to avoid confusion in this opinion. We intend no 

disrespect. 

2 
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No. 92216-1 

weight loss; again, she was reassured that her pregnancy was progressing normally. 

Also during this visit, a glucose challenge test was postponed. A glucose challenge 

test is designed to measure blood sugar and determine whether the mother is at risk 

for gestational diabetes. Neither Dr. Smith nor his nursing staff ever raised concerns 

about blood sugar, diabetes, high blood pressure, or weight loss during Jamie's 

pregnancy. 

At Jamie's August 25, 2008 appointment, Dr. Gregory Schroff covered for Dr. 

Smith. Dr. Schroff scheduled a glucose challenge test four days later, on August 29, 

2008, Jamie's first blood sugar test since establishing care with Dr. Smith. Jamie's 

blood glucose concentration was over six times the upper limit of normal-so high that 

Dr. Schroff did not believe the accuracy of the results. Dr. Schroff scheduled another 

blood sugar test the following day, August 30, 2008-these results indicated a glucose 

concentration over four times normal levels. Dr. Schroff admitted Jamie to the hospital 

for management of diabetes and pregnancy that same day. Jamie was 29 weeks 

pregnant.2 

At the hospital, Dr. Schroff ordered intermittent fetal monitoring. The monitor 

detected fetal distress several times, indicating decelerations of the fetal heart rate. 

The nursing staff's response was to turn off the monitor, rather than to substitute a 

2 The Fasts presented evidence that the standard of care mandates blood glucose 

screening of all nondiabetic patients at 24 to 28 weeks of gestation. Clerk's Papers (CP) 

at 402. 

3 
Fast et a/. v. Kennewick Pub. Hasp. Dist. et a/. 

No. 92216-1 

different monitor or to expedite delivery of the unborn child. 3 No further action was 

taken. Dr. Schroff failed to review fetal monitor strips; Jamie and her husband, Shane 

Fast, presented evidence that the slips indicated that intervention was necessary. 4 

Around 4 a.m. on August 31, 2008, nurses were unable to detect a fetal heartbeatJamie's unborn child had died. Later that day, Jamie delivered her stillborn baby. She 

has been an insulin-dependent type 2 diabetic since this stillbirth. 

On August 26, 2011 the Fasts served requests for mediation on Drs. Smith and 

Schroff and the hospital that employed them, Kennewick Public Hospital District 

(collectively defendants). Under the MNSOL (RCW 4.16.350(3)), a good-faith 

mediation request tolls the statute of limitations for one additional year. RCW 

7.70.11 0. 5 Defendants expressed no interest in mediating. On July 18, 2012, the Fasts 

3 We recognize that the loss of an unborn child is emotionally charged. Whether we use 

the term "unborn child" or "fetus," the loss is the same. Here, the cause of action at issue, 

RCW 4.24.01 0, addresses injury or death of a child, and accordingly we use the term 

"unborn child." 

4 Dr. Schroff has an independent duty to review the EFM [electronic fetal 

monitoring] tracing to ensure fetal well being. His failure to do so allowed 

this fetus, who was showing evidence of uteroplacental insufficiency, to 

remain in-utero in a hostile environment. This failure to provide acceptable 

EFM surveillance culminated in the in-utero death of this fetus. Dr. Schroff's 

failure to diagnose EFM evidence of fetal compromise and appropriately 

intervene with a cesarean delivery represents a deviation in an acceptable 

standard of care. 

CP at 404 (declaration of the Fasts' medical expert). 

5 RCW 7. 70.110 states, "The making of a written, good faith request for mediation of a 

dispute related to damages for injury occurring as a result of health care prior to filing a 

cause of action under this chapter shall toll the statute of limitations provided in RCW 

4.16.350 for one year." 

4 
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No. 92216-1 

filed a complaint against defendants "for injuries resulting from healthcare" and "injury 

or death of a child" under chapter 7.70 RCW and RCW 4.24.01 0, respectively. Clerk's 

Papers (CP) at 7-8 (Compl. at para. 5.1). 

The relevant dates here are: 

8/31/2008 Death of unborn child 

8/26/2011 The Fasts submit mediation request 

8/3112011 Last day to file under the general torts catchall statute of 

limitations (RCW 4.16.080(2)) 

7/18/2012 The Fasts file complaint 

8/31/2012 Last day to file under the MNSOL (RCW 4.16.350(3)) + 

-- mediation tolling (RCW 7. 70.110) 

Dr. Smith, joined by the other defendants, moved for summary judgment, on 

the ground that the wrongful death claim was barred by the general torts catchall 

statute of limitations and violation of a tort claim statute, which is not at issue here. 

The trial court granted summary judgment on both grounds. The Fasts appealed. 

Division Three upheld the summary judgment ruling that RCW 4.16.080(2), the 

general torts catchall statute of limitations, applies to actions for wrongful death 

caused by medical malpractice. Fast v. Kennewick Pub. Hasp. Oist., 188 Wn. App. 43, 

45-46, 53, '11'11 3, 27, 354 P.3d 858 (2015).6 The Fasts petitioned for review on the 

general torts catchall statute of limitations question, and we granted review. 

6 The appellate court also reversed the trial court's dismissal of Jamie's injuries because 

the hospital failed to comply with a statutory requirement that it make available a tort claim 

form. Fast, 188 Wn. App. at 46, "iJ4. Without an available tort claim form, the hospital was 

precluded from raising a defense of non presentment of a prefiling notice of claim. /d. 

5 
Fast et a/. v. Kennewick Pub. Hasp. Dist. eta/. 

No. 92216-1 

STANDARD OF REVIEW 

We review matters of statutory interpretation de novo. Dep't of Ecology v. 

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). 

ANALYSIS 

Our fundamental goal in statutory interpretation is to "discern and implement 

the legislature's intent." State v. Armendariz, 160 Wn.2d 106, 110, 1J7, 156 P.3d 201 

(2007). The court discerns legislative intent from the plain language enacted by the 

legislature, considering the text of the provision in question, the context of the statute 

in which the provision is found, related provisions, amendments to the provision, and 

the statutory scheme as a whole. Campbell & Gwinn, 146 Wn.2d at 9-10. 

The Fasts argue for the application of the three-year MNSOL (RCW 

4.16.350(3)) with an additional year of tolling for a good-faith mediation request. RCW 

7. 70.110. The defendants argue for the application of the general torts catchall statute 

of limitations (RCW 4.16.080(2)), and the Court of Appeals agreed. 

It is undisputed that the Fasts' claim is a wrongful death action against health 

care providers for the death of an unborn child resulting from allegedly negligent 

health care. CP at 7-8 (Compl. at para. 5.1 ); Resp'ts' Opp'n to Pet. for Review at 2. 

The Fasts seek to recover damages for the loss of their minor child, RCW 4.24.01 0, 7 

7 For purposes of RCW 4.24.010, a viable unborn child is included in the statutory 

definition of "minor child." Moen v. Hanson, 85 Wn.2d 597, 599, 537 P.2d 266 (1975). The 

parties do not dispute that the 29-week old unborn child was viable. 

6 
Fast et a/. v. Kennewick Pub. Hasp. Dist. eta/. 

No. 92216-1 

caused by allegedly negligent health care provided to the mother. RCW 4.24.010 

(injury or death of a child) expressly provides that parents can recover for the wrongful 

death of a minor child. 8 However, RCW 4.24.0109 neither includes nor expressly 

incorporates a statute of limitations. We hold that in cases of wrongful death resulting 

from negligent health care, the MNSOL (RCW 4.16.350(3)) applies. 

RCW 4.16.350(3)-Medica/ Negligence Statute of Limitations 

Washington's medical negligence statute is codified in chapter 7.70 RCW. The 

legislature began with a declaration of intent that chapter 7.70 RCW would govern all 

actions for damages resulting from health care: 

The state of Washington, exercising its police and sovereign power, 

hereby modifies as set forth in this chapter and in RCW 4.16.350, as now 

or hereafter amended, certain substantive and procedural aspects of a// 

civil actions and causes of action, whether based on tort, contract, or 

8 This action has been repeatedly characterized by Washington cases as an action for 

"wrongful death." E.g., Lockhartv. Beset, 71 Wn.2d 112, 116,426 P.2d 605 (1967); Clark 

v. Icicle lrrig. Oist., 72 Wn.2d 201, 205-06,432 P.2d 541 (1967); 16 DAVID K. DEWOLF AND 

KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE§ 7:3, at 344 (4th ed. 

2013) (characterizing RCW 4.24.010 as one of the "five statutes in Washington that 

govern wrongful death actions"). 

9 RCW 4.24.010, in pertinent part, states, 

A mother or father, or both, who has regularly contributed to the support of 

his or her minor child ... may maintain or join as a party an action as plaintiff 

for the injury or death of the child. 

In such an action, in addition to damages for medical, hospital, 

medication expenses, and loss of services and support, damages may be 

recovered for the loss of love and companionship of the child and for injury 

to or destruction of the parent-child relationship in such amount as, under 

all the circumstances of the case, may be just. 

7 
Fast eta/. v. Kennewick Pub. Hasp. Dist. eta/. 

No. 92216-1 

otherwise, for damages for injury occurring as a result of health care 

which is provided after June 25, 1976. 

RCW 7.70.010 (emphasis added). "[W]henever an injury occurs as a result of health 

care, the action for damages for that injury is governed exclusively by RCW 7.70." 

Branam v. State, 94 Wn. App. 964, 969, 974 P.2d 335 (1999). 

Prior to 1971, there was no separate medical malpractice statute of limitations. 

Medical negligence cases fell within the limitation statutes applicable to all tort claims. 

Bixler v. Bowman, 94 Wn.2d 146, 148, 614 P.2d 1290 (1980); Wood v. Gibbons, 38 

Wn. App. 343, 346-47, 685 P.2d 619 (1984). "In 1971 the Washington Legislature, in 

harmony with the nationwide trend to limit recovery by medical malpractice victims, 

enacted RCW 4.16.350, which governs the statute of limitations for medical 

malpractice suits."10 Donna L. Walker, Recent Case, Bixler v. Bowman, 94 Wn. 2d 

146, 614 P.2d 1290 (1980), 16 GONZ. L. REV. 825, 833 (1980). 

The pertinent provisions of RCW 4.16.350 provide, 

Any civil action for damages for injury occurring as a result of health care 

which is provided after June 25, 1976, against: 

(1) A person licensed by this state to provide health care or 

related services, including, but not limited to, a physician .... 

(3) ... based upon alleged professional negligence shall be 

commenced within three years .... 

10 The statute, RCW 4.16.350, was again amended in 1976, which is the version currently 

governing medical negligence. Wood, 38 Wn. App. at 347. 

8 
Fast et a/. v. Kennewick Pub. Hasp. Dist. eta/. 

No. 92216-1 

RCW 4.16.350 and RCW 7.70.110 neither expressly include nor exclude 

wrongful death actions. The broad language of RCW 4.16.350 and RCW 7.70.110 is 

illuminated by other provisions of chapter 7.70 RCW that specifically mention "death" 

or "wrongful death" resulting from medical negligence. RCW 7.70.090 states: 

Members of the board of directors or other governing body of a public or 

private hospital are not individually liable for personal injuries or death 

resulting from health care administered by a health care provider granted 

privileges to provide health care at the hospital unless the decision to 

grant the privilege to provide health care at the hospital constitutes gross 

negligence. 

(Emphasis added.) The grant of limited immunity from liability for death, while not 

implicated in this case, implies that such a liability exists under chapter 7.70 RCW. 11 

Additionally, claim reporting requirements found in RCW 7.70.140(2)(a) also 

support the conclusion that the medical malpractice statutes apply to claims for 

wrongful death. RCW 7.70.140(1)(a)-(b). The incorporated statutes define "claim" as 

"a demand for monetary damages for injury or death caused by medical malpractice, 

and a voluntary indemnity payment for injury or death caused by medical malpractice 

made in the absence of a demand for monetary damages." RCW 48.140.01 0(1 ). 

(emphasis added). Similarly, RCW 48.140.01 0(2) defines "claimant" as "a person, 

including a decedent's estate, who is seeking or has sought monetary damages for 

injury or death caused by medical malpractice." (Emphasis added.) Accordingly, we 

11 "'A grant of immunity from liability clearly implies that civil liability can exist in the first 

place."' Beggs v. Dep't of Soc. & Health Servs., 171 Wn.2d 69, 78, ~ 16, 247 P.3d 421 

(2011) (quoting Jane Doe v. Corp. of President of Church of Jesus Christ of Latter-Day 

Saints, 141 Wn. App. 407,422-23, 167 P.3d 1193 (2007)). 

9 
Fast et a/. v. Kennewick Pub. Hasp. Oist. et a/. 

No. 92216-1 

conclude that the legislature intended to subject wrongful death claims caused by 

medical negligence to the provisions of chapter 7.70 RCW. 

RCW 7.70.150(1) also displays the legislative intent to include wrongful death 

claims under chapter 7.70 RCW. Although this provision has been struck down as 

unconstitutional, it has not been repealed. Putman v. Wenatchee Valley Med. Ctr., PS, 

166 Wn.2d 974, 977, ~ 1, 216 P.3d 374 (2009). RCW 7.70.150(1) provides in part: 

In an action against an individual health care provider under this chapter 

for personal injury or wrongful death in which the injury is alleged to have 

been caused by an act or omission that violates the accepted standard 

of care, the plaintiff must file a certificate of merit at the time of 

commencing the action .... 

(Emphasis added.) 

The repeated references to wrongful death claims in chapter 7.70 RCW 

strongly suggest that the statute of limitations for medical malpractice should apply to 

all cases alleging medical negligence. But there is more evidence of legislative intent. 

In 1993, the legislature mandated mediation in health care malpractice claims and 

created a one-year tolling provision for mediation of medical malpractice claims. 

ENGROSSED SECOND SUBSTITUTE S.B. 5304, §§ 419-420, at 119-20, 53d leg., Reg. 

Sess. (Wash. 1993). One of the stated legislative intents for this policy change was 

an attempt to "stabilize health services costs." /d. § 102, at 5. Mediation provides an 

opportunity to settle cases before resorting to litigation, which has the potential to 

decrease health care costs. Additionally, incentivizing alternative dispute resolution 

and cutting the tail off the discovery rule to protect health care providers and their 

insurers from stale claims furthers the legislature's intent to reduce the cost of medical 

10 
Fast eta/. v. Kennewick Pub. Hasp. Dist. et a/. 

No. 92216-1 

malpractice insurance, thereby potentially decreasing the cost of health care. 

Moreover, if medical negligence wrongful death claims are not subject to the tolling 

provisions of RCW 7.70.110, the legislature's intent for mediation in a// medical 

malpractice claims would be thwarted. The references to wrongful death in chapter 

7.70 RCW and the legislative intent of mandatory mediation in medical negligence 

cases weigh heavily in favor of concluding that RCW 4.16.350(3) applies to wrongful 

death suits caused by medical negligence. 

RCW 4. 16. 080(2)-Genera/ Torts Catchall Statute of Limitations 

The defendants argue and the Court of Appeals held that the general torts 

catchall statute of limitations (RCW 4.16.080(2)) applies to wrongful death in medical 

negligence cases. Fast, 188 Wn. App. at 53, 1!27. 

RCW 4.16.080, in applicable part, states, 

The following actions shall be commenced within three years: 

(2) An action for taking, detaining, or injuring personal property, 

including an action for the specific recovery thereof, or for any other 

injury to the person or rights of another not hereinafter enumerated .... 

(Emphasis added.) 

In cases of medical negligence, the language of RCW 4.16.080(2), which 

provides that it is limited to actions "not hereinafter enumerated," requires application 

of the more specific MNSOL in RCW 4.16.350(3). Courts have recognized that RCW 

4.16.080(2) imposes a catchall provision that serves as a statute of limitations for any 

cases that do not fit into other enumerated limitation statutes. Stenberg v. Pac. Power 

11 
Fast eta/. v. Kennewick Pub. Hasp. Dist. et a/. 

No. 92216-1 

& Light Co., 104 Wn.2d 710, 721, 709 P.2d 793 (1985). The Fast case falls squarely 

under RCW 4.16.350(3) (MNSOL), thus, RCW 4.16.080(2) (general torts catchall 

statute of limitations) does not apply. 

The Court of Appeals concluded that RCW 4.16.350(3) does not apply to 

actions for death of a child under RCW 4.24.010 caused by medical negligence, 

relying on Wills and legislative acquiescence to that decision. See Fast, 188 Wn. App. 

at 51-53, 111121-26 (citing Wills v. Kirkpatrick, 56 Wn. App. 757, 760-63, 785 P.2d 834 

(1990)). However, the Court of Appeals relied on cases applying the general torts 

catchall statute of limitations to claims that were not brought under the wrongful death 

of a child statute 12 but rather under a different wrongful death statute, RCW 4.20.010 

(wrongful death-right of action).13 Additionally, the appellate court quotes the "not 

hereinafter enumerated" language of RCW 4.16.080(2) but does not engage in any 

statutory discussion of this provision. Fast, 188 Wn. App. at 50, 1119. Moreover, Fasfs 

reliance on Wills is misplaced as Wills never provided any statutory analysis of the 

"not hereinafter enumerated" language in RCW 4.16.080(2). 

Wills v. Kirkpatrick 

12 Fast is the only Washington appellate court decision to address the statute of limitations 

applicable to claims for injury or death of a child under RCW 4.24.010. 

13 See Fast, 188 Wn. App. at 45-46, 50, 1111 3, 19 (citing Wills, 56 Wn. App. at 757 

(addressing RCW 4.20.010); Atchison v. Great W Malting Co., 161 Wn.2d 372, 377, 11 

11, 166 P.3d 662 (2007) (same); Beat v. City of Seattle, 134 Wn.2d 769, 776, 954 P.2d 

237 (1998) (same); White v. Johns-Manville Corp., 103 Wn.2d 344, 348, 693 P.2d 687 

(1985) (same); Dodson v. Cant'/ Can Co., 159 Wash. 589, 294 P. 265 (1930) (involving 

REM. COMP. STAT.§ 183); Bader v. State, 43 Wn. App. 223, 227, 716 P.2d 925 (1986) 

(involving wrongful death of an adult, but not citing statute). Neither party has challenged 

the helpfulness of these cases in analyzing the death of a child under RCW 4.24.01 0. 

12 
Fast et at. v. Kennewick Pub. Hasp. Dist. et at. 

No. 92216-1 

Wills was a wrongful death claim brought against a physician alleging medical 

malpractice. The Court of Appeals considered "whether the medical malpractice 

statute of limitations applies to an action of wrongful death based on medical 

malpractice." Wills, 56 Wn. App. at 758. The Wills court quoted the "not hereinafter 

enumerated" language of RCW 4.16.080(2) but failed to engage in any statutory 

discussion of this provision. /d. at 760. Instead, it analyzed the question of "whether 

'damages for injury' should be interpreted broadly to apply to injury to statutory 

beneficiaries in a wrongful death claim or should be limited to injury suffered by the 

patient." /d. at 761. It construed the undefined phrase "damages for injury" as used in 

RCW 4.16.350(3) to exclude wrongful death claims. /d. It also simultaneously 

interpreted the undefined term "injury" as used in RCW 4.16.080(2) to include wrongful 

death claims, without explaining the incongruity resulting .from the differing 

interpretations of similar statutory language. /d. at 760. Additionally, the Wills court did 

not acknowledge the previously mentioned provisions of chapter 7.70 RCW that 

contemplate or specifically reference wrongful death. See RCW 7.70.090, .140(2)(a), 

.150(1). 

The reasoning of the appellate court in Wills is also somewhat undermined by 

the court's conclusion that it would be "illogical" that a "claim could be barred even 

before death triggers accrual of the right to bring the action" if the medical negligence 

accrual point was applied to wrongful death claims. Wills, 56 Wn. App. at 762. 

However, this court has recently reached the same result that the Wills court 

considered so illogical. Deggs v. Asbestos Corp., No. 91969-1, slip op. at 19, 20 

13 
Fast et a/. v. Kennewick Pub. Hasp. Dist. et a/. 

No. 92216-1 

(Wash. Oct. 6, 2016), http://courts.wa.gov/opinions/pdf/919691.pdf (the statute of 

limitations on Sunderberg's underlying claim lapsed during his life, and thus the 

wrongful death suit was properly dismissed). Here, we are not faced with this issue 

since death of the plaintiff's unborn child and the last act/omission of health care were 

virtually simultaneous. 

Respondents claim that this court's denial of review of Wills and legislative 

inaction over the past 25 years is de facto acceptance of the appellate court's decision. 

Resp'ts' Opp'n to Pet. for Review at 1. Our denial of review "has never been taken as 

an expression of the court's implicit acceptance of an appellate court's decision." Matia 

Contractors, Inc. v. City of Bellingham, 144 Wn. App. 445, 452, ~ 12, 183 P.3d 1082 

(2008). And "evidence of legislative acquiescence is not conclusive, but is merely one 

factor to consider." Safeco Ins. Companies v. Meyering, 102 Wn.2d 385, 392, 687 P.2d 

195 (1984). Respondents also assert that the Wills decision has a stare decisis effect 

on this court. Resp'ts' Opp'n to Pet. for Review at 10. However, we are not bound by 

a Court of Appeals decision. Bunch v. King County Dep't of Youth Servs., 155 Wn.2d 

165, 181, ~ 29, 116 P.3d 381 (2005). A Court of Appeals decision has no stare decisis 

effect on this court. 

Furthermore, a decision based on Wills also leads to absurd results. 14 Jamie 

can recover for the loss of her pregnancy but not the loss of her unborn child resulting 

14 Since the date of death and last act/omission of health care in this case are virtually 

simultaneous, the choice of which accrual date to use makes no difference. We recognize 

that the accrual date in other cases may be crucial. See Deggs, slip op. at 19, 20. 

14 
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No. 92216-1 

from medical negligence. Jamie can recover for the lost chance of giving live birth 

even though she cannot recover for the loss of her unborn child. The Fasts can 

recover for injuries based on the unborn child's injuries under RCW 4.24.010 (injury 

or death of a child) but cannot recover for the death of this unborn child from those 

same injuries. 

The very language of RCW 4.16.080(2) ("not hereinafter enumerated") confirms 

that the general torts catchall statute of limitations does not apply to cases based on 

medical negligence, which are enumerated in RCW 4.16.350. Accordingly, we hold 

that in cases of wrongful death resulting from negligent health care, the medical 

negligence statute of limitations (MNSOL) (RCW 4.16.350(3)) applies. 

CONCLUSION 

The judgment of the Court of Appeals is reversed, and the case is remanded to 

the superior court for further proceedings consistent with this opinion. 

15 
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No. 92216-1 

I [r' 

WE CONCUR. 

UJ~-~~RT 

)J4/Af~~ 

16 
Fast, eta!. v. Kennewick Pub. Hasp. Dist., eta!. 

No. 92216-1 

MADSEN, C.J. (concurring)-! agree with the majority that the broad language of 

the medical negligence statute oflimitation (MNSOL), RCW 4.16.350,1 and the 

modification of actions provisions found in RCW 7.70.0102 compel application of the 

1 RCW 4.16.350 provides in relevant part: 

Any civil action for damages for injury occurring as a result of health care ... 

against: 

(1) A person licensed by this state to provide health care or related 

services, including ... a physician .... 

(3) ... based upon alleged professional negligence shall be commenced 

within three years. 

Further a one year tolling provision is provided in RCW 7.70.110 as follows: 

The making of a written, good faith request for mediation of a dispute related to 

damages for injury occurring as a result of health care prior to filing a cause of 

action tmder this chapter shall toll the statute oflimitations provided in RCW 

4.16.350 for one year. 

2 RCW 7.70.010 provides: 

The state of Washington, exercising its police and sovereign power, hereby 

modifies as set forth in this chapter and in RCW 4.16.350, as now or hereafter 

amended, certain substantive and procedural aspects of all civil actions and 

causes of action, whether based on tort, contract, or otherwise, for damages for 

injury occurring as a result of health care which is provided after June 25, 1976. 

(Emphasis added.) 
No. 92216-1 

(Madsen, C.J., concurring) 

MNSOL upon the claim for death of a child here. I write separately to emphasize the 

limited scope of the decision in this case. 

The present wrongful death claim, brought under the child death statute, RCW 

4.24.010,3 is based on alleged medical negligence. By its terms, the MNSOL applies to 

"[a]ny civil action" where damages for injury are alleged "as a result of health care." 

RCW 4.16.350. In RCW 7.70.010, the legislature expressly modified "as set forth in 

[chapter 7.70 RCW] and in RCW 4.16.350 ... certain substantive and procedural aspects 

of all civil actions and causes of action ... for damages for injury occurring as a result 

of health care." RCW 7.70.010 (emphasis added). Here, the wrongful death action falls 

within the broad reach of the MNSOL because it is based on a claim for damages 

allegedly resulting from the provision of health care. A wrongful death action "derives 

from the wrongful act causing the death, rather than from the person of the deceased." 

Johnson v. Ottomeier, 45 Wn.2d 419, 423, 275 P.2d 723 (1954). Accordingly, under the 

facts of this case the MNSOL's three year statute of limitations, plus one year tolling for 

a good faith mediation request, applies to the child death claim. See RCW 4.16.350; 

RCW 7.70.110, .010. Restated, the MNSOL applies in this case because the wrongful 

death claim itself falls within the broad sweep ofthe "result of health care" provision of 

the noted statutes. See id. The application here of the MNSOL is not because the 

3 RCW 4.24.010 provides in relevant part: 

A mother or father, or both, who has regularly contributed to the support of his or 

her minor child ... may maintain or join as a party an action as plaintiff for the 

injury or death of the child. 

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wrongful death claim is derivative of some personal claim that the decedent may have 

had. See Johnson, 45 Wn.2d at 423. 

I aclmowledge that this decision somewhat alters our wrongful death 

jurisprudence, but in a very limited way. This court has long recognized that the general 

torts (catchall) three year statute oflimitations (SOL) applies to wrongful death claims.4 

See, e.g., Robinson v. Bait. & Seattle Mining & Reduction Co., 26 Wash. 484, 490-91, 67 

P. 274 (1901); Dodson v. Cant'! Can Co., 159 Wash. 589, 592,294 P. 265 (1930); Cook 

v. Clallam County, 27 Wn.2d 793, 795, 180 P.2d 573 (1947); Huntington v. Samaritan 

Hasp., 101 Wn.2d 466, 468-69, 680 P.2d 58 (1984); White v. Johns-Manville Corp., 103 

Wn.2d 344, 348, 693 P.2d 687 (1985); Beal v. City of Seattle, 134 Wn.2d 769, 776, 954 

P.2d 237 (1998); Atchison v. Great W. Malting Co., 161 Wn.2d 372, 377, 166 P.3d 662 

(2007); see also Bader v. State, 43 Wn. App. 223, 227, 716 P.2d 925 (1986). But, as 

discussed above, in the health care context the legislature has carved out an exception 

making the MNSOL applicable. Outside of the health care context, however, the general 

torts catchall three year SOL still applies. 

Finally, I note that a wrongful death action itself remains a "separate and distinct" 

cause of action. Bowers v. Fibreboard Corp., 66 Wn. App. 454, 460, 832 P.2d 523 

( 1992). This case does not change the distinct character of a wrongful death claim. It 

merely recognizes the exception that the legislature has carved out for all claims alleging 

4 RCW 4.16.080 provides in relevant part, "The following actions shall be commenced within 

three years: ... (2) An action for ... any other injury to the person or rights of another not 

hereinafter enumerated." 

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damages resulting from health care. Accordingly, this case is not an invitation to go 

behind any wrongful death action to the underlying harm in search of a potentially more 

favorable SOL. As noted, in all other contexts outside of death resulting from health 

care, the wrongful death action remains subject to the three year limitation period of 

RCW 4.16.080(2). 

With these observations, I concur. 

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