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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARSHA K. MCFADDEN as Personal
Representative of the Estate of DAVID
R. MCFADDEN, deceased; on behalf                No. 72708-7-1
of the Estate of DAVID R. MCFADDEN,
and on behalf of MARSHA K.
MCFADDEN, surviving spouse, and                 DIVISION ONE
on behalf of KATHRYN GREEN,
CHRISTINA CARLSON and
JACLYN FLEMING, surviving adult
children,

                     Appellant,                 UNPUBLISHED OPINION

                                                FILED: November 9, 2015

SOUTH SOUND INPATIENT
PHYSICIANS, PLLC; and MONICA
MARTON-POPOVICI, M.D.,

                      Respondents.



          Becker, J. — Marsha McFadden appeals a summary judgment order

dismissing, on statute of limitations grounds, her medical malpractice and

wrongful death claims against South Sound Inpatient Physicians PPLC and

Monica Marton-Popovici, MD. She contends that summary judgment was

improper because there is a genuine issue of material fact as to when she

discovered, or reasonably should have discovered, her cause of action. We

affirm.
No. 72708-7-1/2



                                       FACTS

       Shortly after 2:30 a.m. on March 3, 2009, David McFadden arrived at

Valley Medical Center (Valley) seeking emergency health care. Dr. Anne Lapine

examined him, directed certain tests and treatment, and determined that he

should be admitted to the hospital. Dr. Lapine discussed the case with Dr.

Monica Marton-Popovici, who wrote orders admitting David to the hospital at 8:30

a.m. Around 1:00 p.m., David was transferred to the intensive care unit, where

Dr. Marton-Popovici, as well as other doctors, provided care. David McFadden

died in the hospital on March 5, 2009.

       In September 2011, Marsha McFadden, as personal representative of

David's estate, filed a claim for damages pursuant to RCW 4.96.020 against

Valley on behalf of the estate, herself as David's surviving spouse, and David's

three surviving adult children (hereinafter "McFadden"). The claim alleges that

David "suffered and died needlessly" from bacterial meningitis "as a direct and

proximate result" of the failure "to provide timely and appropriate antibiotics,

diagnostic studies and steroids." The claim lists Dr. Lapine and Dr. Marton-

Popovici as "persons involved in or witness to" the relevant incidents, and

"employees, agents and/or ostensible agents" of Valley.

       On February 14, 2012, McFadden filed a complaint for damages, alleging

medical negligence and wrongful death, against Valley, Dr. Lapine, and Dr.

Lapine's employer, Associated Emergency Physicians Inc. The complaint states

repeatedly that Valley provided services "through its partners, employees, agents,

and/or ostensible agents, including Associated Emergency Physicians, Inc. P.S.,
No. 72708-7-1/3



Anne L. Lapine, M.D., and Monica Marton, MD." The complaint alleges that

David McFadden's death was "a direct and proximate result of [Valley],

[Associated Emergency Physicians], Anne L. Lapine, M.D., Monica Marton, MD,

and their partners, employees, agents and/or ostensible agents' failure to provide

reasonably prudent care."

       In March 2013, McFadden's expert, Dr. Stephan Mayer, provided a

declaration detailing his opinion as to specific negligent acts and omissions by Dr.

Lapine, Dr. Marton-Popovici, the resident Dr. Rachel Olson, and Valley nurses

that "more likely than not caused" David McFadden's irreversible brain injury and

death. In April and May, Valley filed certain motions, arguing in part that Dr.

Mayer's declaration raised new allegations. In opposition, McFadden's counsel

repeatedly argued that the tort claim and the original complaint alleged that Dr.

Marton-Popovici was negligent. In July 2013, the trial court entered a stipulation

and order of dismissal of all McFadden's claims against Valley, Associated

Emergency Physicians, and Dr. Lapine.

       On September 17, 2013, McFadden filed a complaint against South

Sound and Dr. Marton-Popovici based on the same incidents as the previous suit.

South Sound and Dr. Marton-Popovici filed a motion for summary judgment

based on the three-year statute of limitations. Referring to the record in the suit

against Valley, they argued that McFadden knew, and admitted to knowing, of a

cause of action against Dr. Marton-Popovici no later than September 2011, when

she filed the tort claim listing Dr. Marton-Popovici as an agent of Valley. South

Sound and Dr. Marton-Popovici cited the February 2012 complaint, as well as
No. 72708-7-1/4



McFadden's attorney's statements in May 2013, arguing that McFadden had

asserted that Dr. Marton-Popovici was negligent "in both the Tort Claim filed on

9/9/11 and the Complaint filed on 2/14/12."

       In response, McFadden argued that the application of the discovery rule

must be submitted to a jury because a question of fact existed as to when she

could have reasonably discovered the facts supporting a medical negligence

claim against Dr. Marton-Popovici. She identified the following facts: (1) no

expert "actually opined that Dr. Marton-Popovici was negligent" until Dr. Mayer's

March 11, 2013 declaration; and (2) for the first time in her April 15, 2013

deposition, Dr. Marton-Popovici denied the existence of a physician patient

relationship with David McFadden until he arrived in the intensive care unit and

described "the other facts surrounding her negligent care." McFadden also

argued that Valley's arguments in the first suit demonstrated a disputed question

of fact as to whether McFadden discovered the elements of her claim against Dr.

Marton-Popovici for the first time in early 2013.

       The trial court granted South Sound and Dr. Marton-Popovici's motion for

summary judgment based on the statute of limitations.

       McFadden appeals.

                                     ANALYSIS

       Summary Judgment

       We review an order of summary judgment de novo, engaging in the same

inquiry as the trial court. Folsom v. Burger King. 135 Wn.2d 658, 663, 958 P.2d
301 (1998). Summary judgment is proper if, viewing the facts and reasonable
No. 72708-7-1/5



inferences most favorably to the nonmoving party, no genuine issues of material

fact exist and the moving party is entitled to judgment as a matter of law. CR

56(c); Young v. Key Pharm.. Inc.. 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989).

       RCW 4.16.3501 "provides that a lawsuit alleging medical malpractice must

be filed within three years of the 'act or omission' giving rise to the claim or one

year after the patient 'discovered or reasonably should have discovered' that the

injury was caused by the act or omission in question." Schroeder v. Weighall.

179Wn.2d 566, 570, 316 P.3d 482 (2014), quoting RCW 4.16.350. The one-



       1 RCW 4.16.350 provides in pertinent part:
       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, .. . ;
                (2) An employee or agent of a person described in
       subsection (1) of this section, acting in the course and scope of his
       or her employment. .. ; or
                (3) An entity, whether or not incorporated, facility, or
       institution employing one or more persons described in subsection
       (1) of this section, including, but not limited to, a hospital, clinic,
       health maintenance organization, or nursing home; or an officer,
       director, employee, or agent thereof acting in the course and scope
       of his or her employment. . . ; 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, whichever period expires later,
       except that in no event shall an action be commenced more than
       eight years after said act or omission: PROVIDED, That the time for
       commencement of an action is tolled upon proof of fraud,
       intentional concealment, or the presence of a foreign body not
       intended to have a therapeutic or diagnostic purpose or effect, until
       the date the patient or the patient's representative has actual
       knowledge of the act of fraud or concealment, or of the presence of
       the foreign body; the patient or the patient's representative has one
       year from the date of the actual knowledge in which to commence a
       civil action for damages.
No. 72708-7-1/6



year "post-discovery period" begins to run "when the plaintiff 'discovered or

reasonably should have discovered all of the essential elements of [his or] her

possible cause of action, i.e., duty, breach, causation, damages.'" Zaleck v.

Everett Clinic. 60 Wn. App. 107, 110-11, 802 P.2d 826 (1991), quoting Ohlerv.

Tacoma Gen. Hosp.. 92 Wn.2d 507, 511, 598 P.2d 1358 (1979). "To discover a

'breach' in a medical malpractice action, the plaintiff need not have known with

certainty that the health care provider was negligent. Instead, the plaintiff need

only have had, or should have had, information that the provider was possibly

negligent." Zaleck, 60 Wn. App. at 112. "The key consideration under the

discovery rule is the factual, as opposed to the legal, basis of the cause of

action." Adcox v. Children's Orthopedic Hosp. & Med. Ctr.. 123 Wn.2d 15, 35,

864P.2d921 (1993).

       The question of when a plaintiff, through the exercise of due diligence,

reasonably should have discovered that an injury was caused by medical

malpractice is typically a question of fact for the jury. Winbun v. Moore, 143

Wn.2d 206, 18 P.3d 576 (2001). But a question of fact can be determined on

summary judgment when reasonable minds can reach only one conclusion from

the admissible evidence. Smith v. Safeco Ins. Co.. 150 Wn.2d 478, 485, 78 P.3d

1274(2003).

       McFadden did not file suit against South Sound and Dr. Marton-Popovici

within the three-year statute of limitations. She contends there is a genuine issue

of material fact as to whether her lawsuit was timely filed within one year of her

discovery of "the salient facts" supporting each element of her medical
No. 72708-7-1/7



malpractice claim. In particular, McFadden claims that it was not until Dr.

Mayer's March 2013 declaration and/or Dr. Marton-Popovici's April 2013

deposition that she knew or could have known that (1) a medical expert would

opine that Dr. Marton-Popovici was negligent, (2) Dr. Marton-Popovici would

deny having a physician-patient relationship with David McFadden until he

arrived in the intensive care unit, and (3) South Sound was Dr. Marton-Popovici's

employer.

       McFadden first contends that her cause of action did not accrue "until a

medical expert specifically opined about each element" of her claim. This is not

the law, and the cases upon which she relies do not support her proposition. Cf.

Olson v. Siverling. 52 Wn. App. 221, 229, 758 P.2d 991 (1988) (evidence of

attorney's inquiry into possible cause of action was not sufficient in itself to

establish as a matter of law that plaintiff discovered all essential elements of

possible cause of action), review denied, 111 Wn.2d 1033 (1989): Winbun, 143

Wn.2d at 213, 217 (because reasonable minds could differ as to whether missing

medical records obscured plaintiff's ability to determine nature and extent of

doctor's care, trial court properly submitted factual dispute as to application of

discovery rule to jury); Lo v. Honda Motor Co.. 73 Wn. App. 448, 464, 456, 869

P.2d 1114 (1994) (whether plaintiff made sufficient inquiries into possibility of

medical malpractice was question for trier of fact where "another facially logical

explanation" for injury existed and multiple doctors implied on numerous

occasions that "condition could not have been prevented").
No. 72708-7-1/8



       Expert testimony is generally required to prove proximate cause in

medical malpractice cases. See, e.g.. Reese v. Stroh. 128 Wn.2d 300, 308, 907

P.2d 282 (1995). But McFadden cites no authority for the proposition that a

plaintiffs mere failure to obtain an expert opinion before expiration of the three-

year statute of limitations prevents the cause of action from accruing. The one-

year postdiscovery period "can be invoked only when the plaintiff has exercised

due diligence; it will not be invoked when the plaintiff has had ready access to

information that a wrong has occurred." Zaleck, 60 Wn. App. at 113 (where

plaintiff knew facts comprising causation and damage elements, his failure to

simply inquire of lawyer or physician for over four years conclusively

demonstrates lack of due diligence). Zaleck's holding controls here.

       In her February 2012 complaint against Valley and Dr. Lapine, McFadden

quoted medical records describing Dr. Marton-Popovici's role in David

McFadden's care. Dr. Mayer relied on the same medical records to form his

opinion as to Dr. Marton-Popovici's negligence in his March 2013 declaration.

McFadden does not identify any evidence in the record suggesting that she was

unable or in some way hindered or prevented from obtaining an expert opinion as

to Dr. Marton-Popovici's care until March 2013.

       Similarly, McFadden fails to demonstrate a genuine issue for trial as to

whether she knew or reasonably should have known of a possible claim of

medical malpractice against Dr. Marton-Popovici before her April 2013 deposition.
McFadden claims that she did not discover the facts supporting the breach of

duty and damages elements ofa medical malpractice claim until Dr. Marton-



                                          8
No. 72708-7-1/9



Popovici's deposition testimony "made clear that she did not consider herself Mr.

McFadden's physician from 8:30 a.m. until 1:30 p.m. when he arrived in the

[intensive care unit]" and that South Sound was her employer. But McFadden

fails to explain how information regarding Dr. Marton-Popovici's potential defense

or the true identity of her employer is necessary to obtaining factual information

indicating Dr. Marton-Popovici "was possibly negligent." Zaleck. 60 Wn. App. at

112.


       The key inquiry is whether McFadden filed suit within one year of

discovering the factual basis for a possible medical malpractice claim against Dr.

Marton-Popovici. McFadden does not identify any "salient fact" as to a particular

act or omission by Dr. Marton-Popovici that may have possibly caused injury to

David McFadden that she had not already discovered by February 2012 when

she filed the initial lawsuit against Valley. The trial court properly granted

summary judgment.

       Attorney Fees

       South Sound and Dr. Marton-Popovici request an award of attorney fees

under RAP 18.9(a) as a sanction for a frivolous appeal. "An appeal is frivolous if

no debatable issues are presented upon which reasonable minds might differ,

and it is so devoid of merit that no reasonable possibility of reversal exists."

Chapman v. Perera, 41 Wn. App. 444, 455-56, 704 P.2d 1224, review denied,

104 Wn.2d 1020 (1985). We resolve any doubts as to whether an appeal is

frivolous in the appellant's favor. Granville Condo. Homeowners Ass'n v.
No. 72708-7-1/10



Kuehner. 177 Wn. App. 543, 558, 312 P.3d 702 (2013). Applying this standard,

we deny South Sound's and Dr. Marton-Popovici's request.

      Affirmed.




                                                  fcfee, (L •
WE CONCUR:




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