Doe v. Finch , 133 Wash. 2d 96 ( 1997 )

Dolliver, J.

— John Doe sued psychologist John G. Finch, Ph.D., P.S., for malpractice and outrage. We find the malpractice action is not barred, as a matter of law, by the statute of limitation, RCW 4.16.350. We find a question of fact remains as to whether the outrage claim is time barred.

For a more detailed discussion of the facts, see Doe v. Finch, 81 Wn. App. 342, 343-48, 914 P.2d 756 (1996). We give here only a brief summary. Dr. Finch was Doe’s therapist from February 1974 until February 1980, except for a one-year break between April 1975 and June 1976. Dr. Finch also provided therapy to Doe’s wife during the same time period. One of the principal issues of Doe’s therapy with Dr. Finch involved Doe’s marital problems with his wife. Doe and his wife separated in 1977, but Doe hoped to save the marriage, and those issues continued to be important in his therapy sessions.

There were times in the course of his seeing Dr. Finch that Doe became jealous of Dr. Finch. Doe stated, "It sometimes seemed that my wife had a higher opinion of [Dr. Finch] than she did of me . . . .” Clerk’s Papers at 17. Doe discussed his jealousy with Dr. Finch, who allegedly explained that Doe’s wife merely saw Dr. Finch as a " 'father figure.’ ” Clerk’s Papers at 17. Doe claims Dr. Finch "assured me, more than once, that I had nothing to worry about, and that his relationship with my spouse was strictly professional.” Clerk’s Papers at 17.

Doe’s marriage ended in 1981. Ten years later Doe received a letter from Dr. Finch in which Dr. Finch admitted to engaging in improper sexual relations with one of his female clients (but not Doe’s wife). Doe then began to suspect that Dr. Finch may have had a sexual relationship with Doe’s wife while Dr. Finch was counseling Doe on his marital problems. In April 1992, Seattle papers printed front page stories describing complaints filed against Dr. Finch by six different patients. The day after the articles were printed, Doe received a call from his ex-wife, who confessed that, in 1976, she started a sexual relationship with Dr. Finch. In a deposition, Dr. Finch admits his romantic involvement with Doe’s wife from 1976 until at least 1981.

In the fall of 1992, Doe filed this lawsuit against Dr. Finch alleging malpractice and outrage. Dr. Finch was granted summary judgment dismissing the action. The trial court’s written order states Doe failed to file the lawsuit in a timely manner under RCW 4.16.350. Doe appealed from the trial court’s decision. The Court of Appeals held the statute of limitation is tolled when a plaintiff can prove intentional concealment, and the court found a question of fact as to whether Dr. Finch intentionally concealed his sexual relationship with Doe’s wife. Finch, 81 Wn. App. at 349-50. The court ruled the tolling provision of RCW 4.16.350 ends when a plaintiff discovers the concealment, after which the plaintiff has three years to bring the action. The court found a question of fact as to when Doe discovered Dr. Finch’s concealment of the sexual relationship. Finch, 81 Wn. App. at 350.

All of the malpractice issues raised by the parties are resolved by our decision in Duke v. Boyd, 133 Wn.2d 80, 942 P.2d 351 (1997), which was argued before us on the same day as this case. Duke holds RCW 4.16.350 is tolled indefinitely once the plaintiff proves the defendant fraudulently or intentionally concealed the underlying cause of action. Given Duke’s reading of RCW 4.16.350, the issue of when Dr. Finch’s intentional concealment ended is irrelevant. Nor must we rule on Dr. Finch’s attempt to construe Quinn v. Connelly, 63 Wn. App. 733, 821 P.2d 1256 (1992), as holding intentional concealment ends upon the termination of a professional relationship.

A remaining issue in this case is whether Dr. Finch intentionally concealed his sexual relationship with Doe’s wife. We agree with the Court of Appeals that Doe’s allegations, viewed most favorably to the nonmoving party, sufficiently raise a question of fact to withstand summary judgment. Doe’s action for malpractice centers around Dr. Finch’s alleged unprofessional and unethical sexual relationship with Doe’s wife while Dr. Finch was providing therapy to Doe. Dr. Finch allegedly lied to Doe when questioned about his relationship with Doe’s wife. These allegations must be resolved by a jury.

Although the Court of Appeals grouped together Doe’s malpractice and outrage claims, as did both parties in their briefs, our disposition of the medical malpractice issue requires a separate analysis of the outrage claim. While the Legislature’s special treatment of malpractice actions under RCW 4.16.350 saves Doe’s malpractice claim from summary judgment on the timeliness issue, Doe’s outrage claim is still governed by the general statutes of limitation.

Outrage is a common-law action in this state. This court has "adopted the definition of the tort of outrage from the Restatement (Second) of Torts § 46 (1965).” Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987) (citing Grimsby v. Samson, 85 Wn.2d 52, 530 P.2d 291, 77 A.L.R.3d 436 (1975)). None of the parties have asserted in their briefs which statute of limitation governs the common-law outrage claim. There appears to be some disagreement in this state whether outrage claims are governed by the three-year statute of limitation, RCW 4.16.080(2) ("for any other injury to the person or rights of another not hereinafter enumerated”), see St. Michelle v. Robinson, 52 Wn. App. 309, 314, 759 P.2d 467 (1988) (applying the three-year statute to a daughter’s claim of outrage and intentional infliction of emotional distress stemming from her being sexually abused by her father), or the two-year statute of limitation, RCW 4.16.100 (actions for libel, slander, assault, assault and battery, or false imprisonment). See Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 809 & n.1, 818 P.2d 1362 (1991) (dicta) (outrage claim subject to two-year limitation). Based on the record before us, we decline to decide the issue at this time. On remand, the parties can argue to the trial court which statute of limitation should apply to the outrage claim.

Regardless of which limitation period applies to the outrage claim, the discovery rule most likely applies. In cases where "plaintiffs could not have immediately known of their injuries due to . . . concealment of information by the defendant [,]” this court has allowed the common-law discovery rule to toll a statute of limitation. In re Estates of Hibbard, 118 Wn.2d 737, 749-50, 826 P.2d 690 (1992). "The discovery rule provides that a cause of action does not accrue until an injured party knows, or in the exercise of due diligence should have discovered, the factual bases of the cause of action.” Beard v. King County, 76 Wn. App. 863, 867, 889 P.2d 501 (1995) (citing Estates of Hibbard, 118 Wn.2d at 744; Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992)).

On remand, if Doe pursues the outrage claim as well as the malpractice claim, the finder of fact will have to apply the discovery rule and determine when Doe, through the exercise of due diligence, should have discovered the elements of the outrage action. The trial court will also have to determine if the outrage claim would impermissibly allow double recovery for emotional distress resulting from the tortious conduct. Janovich, 109 Wn.2d at 61-62 (plaintiff cannot recover damages on outrage theory when damages for mental or emotional distress were already recoverable under plaintiff’s assault claim).

Finally, we have focused our analysis solely on the issue of whether Doe’s claims are time barred. Nothing in this decision should be construed as a comment on the merits of Doe’s outrage and malpractice claims. We affirm the Court of Appeals and remand the case for further proceedings.

Smith, Guy, Johnson, Madsen, Alexander, and Sanders, JJ., concur.