WA Legal Roundup - WA Supreme Court: Minor claims still safe in med mal; recall against Lindquist fails; exclusion of one does not equal closure
Unruh v. Cacchiotti is a case near and dear to my heart. Lisa Unruh went to an orthdontist who eseentially tried to hold her teeth in place to correct a problem with jaw overgrowth (also known as a Class II Malocclusion...if memory serves). She sued after she reached 18 and sent the carrier an offer of mediation under Ch. 7.70 RCW.
It was tossed on summary judgment on a statute of limitations issue. At play were the affect of sending the offer of mediation to the carrier and whether the statute of limitations anti-tolling provision and statute of repose applied retroactively.
According to the court, the sending of a letter to the carrier offering mediation tolls when there carrier is acting on behalf of the defendant. Here, the carrier replied to the notice of intent to sue and took over on behalf of the defendant.
There is no clear intent here to put the statute of repose and the SOL on minor medical negligence claims as retroactive. Thus, the one year given by the offer of mediation made the claim timely.
Of interesting note here is what the court didn't touch...kinda.
So back in the day, the court struck down a statute that purported to undo tolling of medical negligence claims where the parent had the information necessary to make the claim. The court struck it down. The legislature reenacted it, essentially giving the same reason as before. The court didn't touch the constitutional issues under the doctrine of constitutional avoidance (if we can get there without touching constitutional issues, we won't touch constitutional issues). However, in a footnoote the court gave a pretty clear indication as to how it would rule:
Because we hold that the 2006 nontolling amendment to RCW 4.16.190 does not eliminate tolling during Unruh's minority, we need not reach her alternative arguments that the amendment violates the constitutional right of access to courts as well as the privileges and immunities clause of article I, section 12. While we do not decide this case on constitutional grounds, in Gilbert we indicated that the categorical elimination of tolling for minors would give rise to "compelling" constitutional challenges. 127 Wn.2d at 378.
Writing on the wall?
Why is this so near and dear to me? I wrote the Court of Appeals brief. Unfortunately, I was gone from SKWC prior to this getting kicked up to the supreme court, so I don't get the name recognition. But, as with other things, its nice to see the wording used in the opinion.
Oh, and this was a unanimous decision.
In re Recall of Lindquist has been 86'd. I hate recall cases, so click the link to read it if you're into tedium.
Finally, in State v. Lormor, the Defendant talked to at least one juror about his four year old terminally ill daughter, who was on a ventillator. The court had her removed and the defendant sought mistrial over closing of proceedings. Held it was not a closure to exclude one person, as the court has power under an abuse of discretion standard to control proceedings:
THE COURT: So she is even younger than adolescent years. I made the decision she should not be in the courtroom for a number of reasons: Number one, at that age I don't know how much she would understand of the proceedings. Two, given the setup I could even hear at the bench the ventilator operating, and I concluded that would be an inappropriate distraction and frankly difficult for her as it would be potentially distracting for the jury.
Important bit of this case, the supreme court rejected the Court of Appeals trivial closure requirement, instead placing this set of facts as exclusion of one person for the proceedings. Also said they could hold that for another day.