Bozung v. MultiCare Health Sys.

1

ANTHONY J. BOZUNG, JR., individually and as personal representative of the ESTATE OF JO EVELYN BOZUNG, Appellant, v. MULTICARE HEALTH SYSTEM, a Washington nonprofit corporation, Respondent, VIRGINIA MASON FRANCISCAN HEALTH, a Washington nonprofit corporation; FRANCISCAN HEALTH SYSTEM, a Washington nonprofit corporation, dba CHI FRANCISCAN HEALTH and ST. JOSEPH MEDICAL CENTER; SETH G. HOLT, M.D., a Washington healthcare provider, JOHN DOE and JANE DOE 1-10, unknown healthcare providers; DIANE REINEMAN, M.D., a Washington healthcare provider; and PETER Y. CHEN, M.D., a Washington healthcare provider, Defendants.

No. 86171-9-I

Court of Appeals of Washington, Division 1

May 20, 2024

UNPUBLISHED OPINION

MANN J.

Anthony Bozung Jr., individually and as personal representative of the estate of Jo Evelyn Bozung, appeals the trial court's order on summary judgment that dismissed claims of failure to follow the accepted standard of care, informed consent wrongful death, and corporate negligence against MultiCare Health System (MultiCare). Because the complaint was not filed within the three-year statute of limitations provided in RCW 4.16.350, and no tolling provision applied, we affirm.

I

Jo Evelyn Bozung^[1] was 79 years old when she died of lung cancer in December 2019.^[2]

Dr Diane Reineman was Jo Evelyn's primary care physician from 2004 through 2016. Dr. Reineman was located at the Allenmore Primary Care Facility, operated by MultiCare.

As she aged, Jo Evelyn experienced many ailments. By 2012, Jo Evelyn had been diagnosed with chronic airway obstruction idiopathic urticaria, insomnia, depression, anxiety dementia, gastritis, hypercholesterolemia, and coronary atherosclerosis. And she had several hospitalizations and emergency room (ER) visits, including treatment for a heart attack. From October 7 to 9, 2013, Jo Evelyn was hospitalized at St. Joseph Medical Center, operated by Franciscan Health Services, for a transient ischemic attack (TIA). Jo Evelyn presented with symptoms of numbness and difficulty ambulating, and she had recently fallen in the bathtub. Providers at St. Joseph performed several diagnostic tests. A computerized tomography (CT) scan showed a 1.3 cm nodule in Jo Evelyn's right upper lung. The Bozungs were not told about the nodule or told to follow up. But, Jo Evelyn's discharge paperwork included the following notation:

There is a 1.3 cm ovoid, and groundglass opacity within the right upper lobe (for example series 6, image 53).

1.3 cm groundglass nodule within the right upper lobe. Solitary, purely ground glass nodules measuring greater than 5mm are nonspecific and may represent a benign or malignant process. Referral to the lung nodule clinic may be considered. Follow up chest CT in 3 months is recommended. Should the nodule persist in stable form, annual follow-up chest CT is recommended for a minimum of 3 years. Per Physician.

Jo Evelyn had a follow-up visit with Dr. Reineman after she was released from the hospital. They discussed the TIA and went over "her medications at length." In her progress notes Dr. Reineman noted: "CT did pick up a small 1.3 cm nodule in the right upper lobe of the lung that may need some followup in another 3 months." The Bozungs also consulted cardiologist Dr. Peter Chen. Neither provider mentioned the lung nodule to the Bozungs.

Dr. Reineman retired in May 2017 and Jo Evelyn began seeing Dr. Erin Kallock at a different clinic: MultiCare's James Center Family Practice. During their first visit, Dr. Kallock conducted a detailed interview of Jo Evelyn and went over current symptoms and ailments. Jo Evelyn brought a form from the Department of Licensing (DOL) to the visit needed for Jo Evelyn to get a new driver's license. Jo Evelyn told Dr. Kallock, however, that she didn't really want to drive, was afraid she would get lost, and was scared to drive the new Jeep they owned. A few weeks later, Jo Evelyn underwent an annual wellness exam with Dr. Kallock. In January 2018, Bozung notified the clinic that they would be changing Jo Evelyn's primary care physician because "they felt that patient's care wasn't met to their satisfaction."

Jo Evelyn began seeing Dr. Jamie Payne on February 7, 2018, at a different clinic: MultiCare Family Medical Center. During the first appointment to establish care, Dr. Payne reviewed Jo Evelyn's past medical history, which included dementia, depression, heart vessel disease, COPD or chronic airway obstruction, history of TIAs, hypercholesterolemia, and tobacco use disorder. Along with regular lab work, Dr. Payne recommended pulmonary function testing and bone density testing. Dr. Payne recommended Jo Evelyn return for a wellness visit in four weeks. When Jo Evelyn returned in March, Dr. Payne again noted Jo Evelyn's former smoking history, but also noted, "[p]atient age is outside of recommended schedule for lung screening."

In April 2018, Jo Evelyn suffered a fall. This was not the first time in recent years that Jo Evelyn had fallen. But on this occasion, Jo Evelyn fractured her left hip and underwent surgery. She was discharged to a long-term recovery center for several months. During her stay, she experienced a urinary tract infection and was re-hospitalized for several days.

Jo Evelyn's last visit with Dr. Payne was on April 22, 2019. That visit was a follow up appointment on Jo Evelyn's hip fracture and included a medication review. Dr. Payne referred Jo Evelyn to physical therapy to work on her gait instability and to gastroenterology for colon cancer screening.

Jo Evelyn was admitted to St. Joseph again on May 31, 2019, after Bozung contacted Dr. Payne explaining the Jo Evelyn had suffered another fall, could not remember the fall, was sleeping a lot, and had a loss of appetite. Dr. Payne recommended that Bozung take Jo Evelyn to the ER to get evaluated for her lethargy and to rule out a stroke. Jo Evelyn was treated by Dr. Seth Holt. A CT scan of Jo Evelyn's chest found a 3.2 x 2 cm cavitary lesion in the right upper lobe of her lung. Further testing revealed that Jo Evelyn had adenocarcinoma of the lung: a lung cancer that occurs mainly in people who smoke or formerly smoked. Jo Evelyn passed away on December 17, 2019.

On March 1, 2022, Bozung sued MultiCare, Virginia Mason Franciscan Health, Franciscan Health System, Dr. Reineman, and Dr. Chen. He asserted four causes of action including: failure to follow accepted standard of care, failure to comply with statutory informed consent duties, wrongful death and survival claims, and corporate negligence.

MultiCare moved to dismiss Bozung's complaint under CR 12(b)(6) based on the statute of limitations. The trial court granted the motion in part, dismissing Bozung's claims against Dr. Reineman and Dr. Chen, but denied the motion as to defendant MultiCare.

On May 24, 2022, Bozung requested leave to file an amended complaint to add Dr. Payne. The trial court denied his motion. Bozung then moved to amend his complaint to add Dr. Holt of Franciscan Health System, which the trial court granted.

MultiCare moved for summary judgment, renewing its argument that Bozung's claims were barred by the statute of limitations. The trial court granted MultiCare summary judgment dismissal of Bozung's claims. Bozung unsuccessfully moved for reconsideration of the trial court's dismissal order.

Bozung appeals.^[3]

II

Summary judgment based on a statute of limitations should be granted only when the pleadings, depositions, interrogatories admissions, and affidavits in the record demonstrate there is no genuine issue of material fact as to when the statutory period began. CR 56(c); Olson v. Siverling, 52 Wn.App. 221, 224, 758 P.2d 991 (1988). The statute of limitations is an affirmative defense; the defendant bears the burden of proof. Haslund v. City of Seattle, 86 Wn.2d 607, 620-21, 547 P.2d 1221 (1976). The plaintiff, however, carries the burden of proof if they allege that the statute was tolled and does not bar the claim. Rivas v. Overlake Hosp. Med. Ctr., 164 Wn.2d 261, 267, 189 P.3d 753 (2008). Whether a case was filed within the statute of limitations period is normally a question of law to be determined by a judge. Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 263, 840 P.2d 860 (1992). Although the evidence is viewed in the light most favorable to the nonmoving party, if that party is the plaintiff and the plaintiff fails to make a factual showing sufficient to establish an element essential to his case, summary judgment is warranted. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). We review an order of summary judgment de novo. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002).

A

RCW 4.16.350(3) contains two provisions for timely commencement of medical malpractice actions-a three-year statute of limitations and a one-year discovery rule:

Any civil action for damages for injury occurring as a result of health care . . . based upon alleged professional negligence shall be commenced within three years of the act or omission alleged to have caused the injury or condition or one year of the time the patient or his or her representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission.^[4]

The three-year limitations period in RCW 4.16.350(3) "begins to run from the date of the act or omission alleged to have caused injury." Gunnier v. Yakima Heart Ctr., Inc., P.S., 134 Wn.2d 854, 864, 953 P.2d 1162 (1998). This means that the three-year period may lapse before injury occurs. This conclusion is "neither absurd nor harsh, as [a] plaintiff still has the alternative limitations period of the one-year discovery rule in which to file suit." Gunnier, 134 Wn.2d at 864.

Bozung's...