Daisy A. Amo v. Harborview Medical Center, Et Ano ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DAISY A. AMO,
No. 79479-5-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
HARBORVIEW MEDICAL CENTER,
and ALSON BURKE, M.D.,
Respondent.
ANDRUS, J. — Daisy A. Amo appeals the trial court’s summary dismissal of
her claims against Harborview Medical Center and an individual medical treatment
provider. Amo was required to submit notice of her claim under chapter 4.92 RCW
before suing the hospital, a state entity, and its employee. Because she failed to
do so, the trial court properly granted the defendants’ motion for summary
judgment. We affirm.
FACTS
On September 10, 2018, Daisy Amo filed a complaint against Harborview
Medical Center and Dr. Alson Burke, a physician employed by the University of
Washington who practices medicine at Harborview. 1 Amo raised a variety of
Citations and pin cites are based on the Westlaw online version of the cited material.
1
Harborview Medical Center is owned by King County. The University of Washington
manages the hospital and employees of Harborview are State employees.
No. 79479-5-I/2
medical negligence claims arising from the treatment provided to her by Dr. Burke
at a clinic operated by Harborview Medical Center in September 2015. She also
alleged that Dr. Burke sexually assaulted her during the course of a pelvic
examination. Amo sought compensatory damages, as well as damages for
“mental anguish,” punitive damages, and “other expenses.”
Harborview and Dr. Burke (collectively, Harborview) filed a motion to
dismiss Amo’s claims. Harborview contended that Amo failed to comply with the
claim filing statutes applicable to tort claims against the State before she filed her
lawsuit. See RCW 4.92.100-110. Amo did not dispute her lack of compliance with
the claim filing statutes, but nevertheless, opposed the motion. She pointed to her
status as a self-represented litigant and claimed she was unaware of claim filing
statutes, and that Harborview employees should have informed her of the filing
prerequisites or referred her correspondence to the appropriate office.
Following a hearing, the trial court granted Harborview’s motion and entered
an order dismissing Amo’s claims with prejudice. 2 Amo appeals.
ANALYSIS
We review an order granting summary judgment de novo, engaging in the
same inquiry as the trial court. Germeau v. Mason County, 166 Wn. App. 789,
801, 271 P.3d 932 (2012). Summary judgment is proper if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
2
Amo filed her complaint in September 2018, almost exactly three years after she received
the medical treatment at issue. When the court granted Harborview’s summary judgment motion
in December 2018, the statute of limitations had expired as to all of Amo’s claims. See RCW
4.16.100 (two-year limitations period for claims of assault and battery); RCW 4.16.350 (three-year
limitations period for medical malpractice claims).
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affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” CR 56(c). We
construe all facts and their reasonable inferences in the light most favorable to the
nonmoving party. Loeffelholz v. University of Washington, 175 Wn.2d 264, 271,
285 P.3d 854 (2012).
By enacting chapter 4.92 RCW, the legislature abrogated state sovereign
immunity and established procedures for bringing tort claims against the State.
One of the purposes of establishing the presuit claim filing requirement is “‘to allow
government entities time to investigate, evaluate, and settle claims’” before they
are sued. Renner v. City of Marysville, 168 Wn.2d 540, 545, 230 P.3d 569 (2010)
(quoting Medina v. Pub. Util. Dist. No. 1, 147 Wn.2d 303, 310, 53 P.3d 993 (2002)).
Amo’s complaint raised claims that sound in tort. 3 See Mohr v. Grantham,
172 Wn.2d 844, 850, 262 P.3d 490 (2011) (medical negligence requires proof of
traditional tort elements); Honegger v. Yoke’s Washington Foods, Inc., 83 Wn.
App. 293, 297, 921 P.2d 1080 (1996) (assault and battery are intentional torts).
The filing requirements for bringing tort claims against the State are set forth in
RCW 4.92.100 and .110. The provisions preclude tort claims against State entities
and their employees unless the plaintiff first files a tort claim with the State of
Washington’s Office of Risk Management 4 at least 60 days before commencing
the action:
3
Amo’s characterizes her claims as violations of “Washington State Human Rights Law.”
But her complaint describes only incidents of alleged medical negligence and intentional tortious
conduct. And the provision she cites, RCW 4.16.080, establishes the limitations period for certain
categories of claims, but does not create any cause of action.
4
The Washington State Department of Enterprise Services operates the Office of Risk
Management.
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All claims against the state, or against the state’s officers,
employees, or volunteers, acting in such capacity, for damages
arising out of tortious conduct, must be presented to the office of risk
management.
RCW 4.92.100(1).
No action subject to the claim filing requirements of RCW 4.92.100
shall be commenced against the state, or against any state officer,
employee, or volunteer, acting in such capacity, for damages arising
out of tortious conduct until sixty calendar days have elapsed after
the claim is presented to the office of risk management.
RCW 4.92.110. A claimant must use the standard claim form maintained by the
State’s Office of Risk Management and posted on the Department of Enterprise
Services’ Website. 5 RCW 4.92.100. RCW 4.92.100 sets forth the content
requirements for notice of a claim.
Amo maintains that her unawareness of RCW 4.92.100 and .110 excuses
her lack of compliance with those statutes. She also contends that summary
judgment was improper because Harborview failed to demonstrate an absence of
genuine issues of material fact as to the merits of her claims.
However, the claim filing statutes expressly apply to Amo’s claims against
Harborview, a state entity, and to claims against Dr. Burke, an employee of the
State, acting within the scope of her employment. RCW 4.92.100(1); Hardesty v.
Stenchever, 82 Wn. App. 253, 260-61, 917 P.2d 577 (1996). The requirement that
a claimant file her tort claim in accordance with RCW 4.92.100-.110 before filing
suit is strictly enforced. Levy v. State, 91 Wn. App. 934, 942, 957 P.2d 1272(1998); Kleyer v. Harborview Med. Ctr., 76 Wn. App. 542, 545-46, 887 P.2d 4685
See https://des.wa.gov/services/risk-management (last viewed March 20, 2020).
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(1995). The law is well settled that dismissal of the case is proper when the plaintiff
does not comply with the statutorily-mandated claim filing procedure. Hyde v.
University of Washington Medical Center, 186 Wn. App. 926, 929, 347 P.3d 918(2015) (“Dismissal is the proper remedy for failure to comply” with tort claim filing
requirements in chapter 4.92 RCW); Oda v. State, 111 Wn. App. 79, 87, 44 P.3d
8 (2002); Levy, 91 Wn. App. at 942; Mercer v. State, 48 Wn. App. 496, 498, 739
P.2d 703 (1987). As Harborview points out, notwithstanding the fact that they
impose additional procedural burdens on plaintiffs, statutes requiring presuit notice
of claims against government entities have withstood constitutional scrutiny. See
e.g. McDevitt v. Harborview Medical Center, 179 Wn.2d 59, 68–69, 316 P.3d 469(2013) (presuit notice requirement under former RCW 7.70.100(1) did not violate
equal protection); see also Hyde v. University of Washington Medical Center, 186
Wn. App. 926, 936, 347 P.3d 918 (2015) (provision under RCW 4.92 does not
violate the privilege and immunities clause so long as the entity to which it applies
is an instrumentality of the state); Woods v. Bailet, 116 Wn. App. 658, 667-68, 67
P.3d 511 (2003) (no violation of due process as to statute requiring presuit notice
of claims against local governmental entities).
Amo’s communications with Harborview staff and administrators before she
filed her complaint do not satisfy the requirements of the claim filing statute. Amo
did not communicate to Harborview her intent to initiate legal action or to assert a
claim for damages. And even if she had done so, while courts will liberally construe
the contents of a claim and accept substantial compliance with the content
requirements of RCW 4.92.100, this rule does not apply to the filing requirement
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itself. RCW 4.92.100(3); Levy, 91 Wn. App. at 942. No court has excused
compliance with the presuit claim filing statutes based on a lack of knowledge of
the requirements. To the contrary, compliance with the claim filing procedure is
mandatory even where the requirements might appear to be “harsh and technical.”
Levy, 91 Wn. App. at 942. In rejecting a due process challenge to a related statute
under chapter 4.96 RCW, this court concluded that while claim filing statutes place
additional burdens on plaintiffs to investigate and determine whether claim filing
statutes apply, those burdens do not create an “insurmountable barrier to relief.”
Woods, 116 Wn. App. at 668.
This court’s decisions in Jones v. University of Washington, 62 Wn. App.
653, 814 P.2d 1236 (1991), and Kleyer are illustrative. In Jones, we affirmed the
dismissal of the plaintiff’s claims against institutional defendants and state
employees acting in their official capacities because the plaintiff failed to file the
notice of claim until after he filed a lawsuit. Jones, 62 Wn. App. at 662. We rejected
Jones’s argument that the statute merely required him to file a claim before the
statute of limitations expired. Jones, 62 Wn. App. at 660. We also rejected the
argument that the State waived its right to rely on former RCW 4.92.110 as a
defense by failing to disclose its knowledge of Jones’s error. Jones, 62 Wn. App.
at 662.
In Kleyer, before the plaintiff filed a medical malpractice action against
Harborview, a consultant for the plaintiff contacted a claims manager at the
University of Washington’s Office of Risk Management. Kleyer, 76 Wn. App. at
544. The claims manager offered to settle one of the plaintiff’s claims. Id. The
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No. 79479-5-I/7
trial court granted Harborview’s motion to dismiss, rejecting the plaintiff’s argument
that the University of Washington’s Office of Risk Management was authorized to
receive presuit claims against the State. Id. Kleyer argued on appeal that the
University misled him into believing that he satisfied the claim filing procedure
when the University claims manager offered a settlement. Id. at 549. This court
affirmed the dismissal because the language of former RCW 4.92.210 expressly
required the claim to be filed with the office of risk management in Olympia. Id.
Unlike the plaintiffs in Jones and Kleyer, Amo did not contact or file a claim
with any office of risk management. Amo raised concerns about her treatment at
Harborview and the hospital investigated her complaints according to its internal
procedures. Harborview informed Amo of her right to contact the Department of
Health and the Joint Commission on Accreditation of HealthCare Organizations
and provided contact information for those entities. There was nothing misleading
about Harborview’s course of action in conducting an internal investigation and
referring Amo to the entity that sets standards and accredits healthcare
organizations or the entity that oversees physician licensing in Washington and
accepts consumer complaints against licensed physicians. There is no authority
for the proposition that Harborview was required to assume that Amo intended to
pursue litigation or that it was obligated to take affirmative steps to ensure her
compliance with the statutory prerequisites for filing suit. Indeed, we have rejected
similar arguments in cases involving more compelling facts. See Jones, 62 Wn.
App. at 662; see also Hardesty v. Stenchever, 82 Wn. App. 253, 258-59, 917 P.2d
577 (1996) (equitable estoppel did not bar defense based on claim filing provisions
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No. 79479-5-I/8
where the University of Washington’s Office of Risk Management did not inform
the plaintiff that she was required to file notice of her claim with the Olympia office).
In sum, before filing her complaint for medical negligence against
Harborview and its employee, Amo was required to file a claim with the office of
risk management in Olympia, pursuant to RCW 4.92.110 and RCW 4.92.210. 6
Because she failed to do so, the trial court properly dismissed the complaint. We
affirm.
WE CONCUR:
6
To the extent Amo alleged that Dr. Burke committed sexual assault, an act outside the
scope of her employment, the claim filing requirements of chapter 4.92 RCW do not appear to
apply. See Jones v. University of Washington, 62 Wn. App. at 664 (claims against state employees
acting outside scope of employment not subject to claim filing requirements); see also Boss v. City
of Spokane, 63 Wn. 2d 305, 387 P.2d 67 (1963) (no claim filing required for intentional tort claim).
Nonetheless, the trial court still properly dismissed this claim because the applicable two-year
statute of limitations had already expired when she filed her complaint. See RCW 4.16.100 (two-
year limitations period for claims of assault and battery). This court may affirm a trial court’s
decision to grant summary judgment on any basis supported by the record. Redding v. Virginia
Mason Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483 (1994).
8