Lisa L. Owen, V. Dr. Ryder Gwinn ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LISA LINN OWEN,
No. 81650-1-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
DR. RYDER GWINN; JANE DOE,
nurse in the intensive care unit;
SWEDISH HOSPITAL,
Respondents.
APPELWICK, J. — Owen appeals from dismissal of her claims of criminal
negligence and medical negligence against Swedish. She alleges she was
administered morphine despite Swedish knowing she was allergic to the drug.
Owen failed to serve the parties within the statute of limitations. We affirm.
FACTS
On July 20, 2015, Lisa Owen underwent surgery following a slip and fall
accident at her job. Owen warned the hospital and nurse that she is allergic to
morphine. Despite this, she alleges that she was given morphine after surgery.
Owen was discharged from the hospital on July 27, 2015.
Almost four years later, on July 19, 2019, Owen filed a complaint in superior
court against Dr. Ryder Gwinn, Jane Doe (a nurse in the intensive care unit), and
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81650-1-I/2
Swedish Health Services (collectively, “Swedish”).1 She alleges that before this
lawsuit, she attempted mediation with Swedish.
Owen asked her boyfriend to serve Dr. Gwinn and the other defendants in
July 2019, but he was unable to serve them. She requested service by publication
for Dr. Gwinn on October 1, 2019, and was denied. She then requested the King
County Sheriff serve the parties.2 In its motion for summary judgment, Swedish
conceded that it was served on November 13, 2019, and stated at the summary
judgment hearing that no defendant was served before that date.3
Swedish filed a motion for summary judgment. It argued that Owen failed
to timely serve the defendants, that criminal negligence fell outside the exclusivity
provisions of chapter 7.70 RCW, and that Owen failed to provide a medical expert
as required to prove medical negligence. The trial court dismissed Owen’s
complaint in its entirety.
Owen appealed directly to the Supreme Court. The Supreme Court
transferred the case to the Court of Appeals.
1 We note that there is no formal caption on the complaint. Instead, it is
preceded by a cashier’s form GR 14 coversheet. In addition to caption information,
she indicates two causes of action: “Med-Malpractice” and “Criminal Negligence.”
She also writes, “One more year statu[t]e [of] limitations extension due [to]
request[ed] mediation within last year prior to 3 year statu[t]e [of] limitations.”
There is no dispute between the parties that the complaint contained two causes
of action: medical malpractice and criminal negligence.
2 It is unclear whether Doe was identified for the purposes of service, or for
this case. Swedish stated at summary judgment that it represented “Jane Doe
Nurse, to the extent that she is identifiable.”
3 Owen also filed motions for service by mail on all defendants in December
2019 and January 2020, both were denied. Additionally, she asked the Sheriff to
serve Swedish Health on January 28, 2020, and it completed service on February
4, 2020. It is unclear why she attempted service after November 13, 2019.
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No. 81650-1-I/3
DISCUSSION
The issue on appeal is whether or not the trial court properly dismissed this
case.4 Swedish argues that Owen’s brief did not meet court rules, that her criminal
negligence claim does not fall within Washington law, that she failed to provide an
expert witness opinion needed for a medical negligence claim, and that service
was not completed in a timely manner.
We review an appeal of an order granting summary judgment de novo.
McDevitt v. Harborview Med. Ctr., 179 Wn.2d 59, 64, 316 P.3d 469 (2013).
Summary judgment is proper if there is no genuine issue of material fact, and the
party is entitled to judgment as a matter of law. CR 56(c).
Medical negligence claims have a three year statute of limitations. RCW
4.16.350(3). The statute of limitations can be tolled for one year by a written, good
faith request for mediation by the plaintiff. RCW 7.70.110. It can also be tolled by
filing a complaint. RCW 4.16.170. Service must occur within 90 days of filing the
complaint, and without service, the complaint does not toll the statute of limitations.
Id.4 Owen’s filed her opening brief on July 28, 2021. It was returned because
it did not conform to court rules. But, on September 1, 2021, the court
administrator/clerk ruled that if the amended brief was not received by September
13, 2021, we would consider the brief filed on July 28, 2021 as Owen’s opening
brief. We did not receive an amended brief.
We note that in her brief on appeal, Owen alleges, inter alia, reckless
endangerment, breach of the standard of care, assault and battery, and attempted
murder. The Court of Appeals cannot review those arguments that were not made
in the trial court. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007) (“The
general rule is that appellate courts will not consider issues raised for the first time
on appeal.”)
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No. 81650-1-I/4
Owen’s surgery took place on July 20, 2015. Owen states in her complaint
that she requested mediation as contemplated by the statute before bringing the
lawsuit. If true, this would toll the statute of limitations of her medical negligence
claim, giving her four years to file a complaint. RCW 7.70.110. She filed her
complaint on July 19, 2019, just under four years after the surgery took place.
However, even assuming the statute of limitations was four years, she did
not serve the defendants within the required time period. She had until October
17, 2019, ninety days from the filing date of July 19, 2019, to serve the parties.
RCW 4.16.170. She served Swedish on November 13, 2019. It is unclear from
the record if Doe and Gwinn were served the same day as Swedish, served on a
different day, or never served at all.
Owen attempted timely service. At the summary judgment hearing, she
explained in detail the challenges and obstacles she faced in completing service
on the defendants. She stated that she requested both service by publication and
by mail, but her requests were denied. The court first denied Owen’s motion to
serve Gwinn by publication. It stated that “for authorization to serve by publication
you will need to demonstrate first that personal service was unsuccessful (by more
than one or two attempts) and then that service by mail would also be
unsuccessful.” It stated that Owen did not provide a declaration from anyone other
than herself to show service, and no indication that there was more than one
attempt. Owen then filed a motion to serve by mail. The court denied her motion
to serve by mail on all defendants because the motion was “virtually illegible,” and
asked her to resubmit. She also asked the Sheriff’s office to serve the parties, but
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No. 81650-1-I/5
it is unclear whether the Sheriff properly served the parties. Owen cites no
authority to support the notion that these hardships could extend the time allowed
for service.
Service was not commenced within the statute of limitations. The case was
properly dismissed.
We affirm.
WE CONCUR:
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