Court Invalidates Exception to Tolling Provision for Medical Malpractice Cases Brought by Minors

by Cozen O'Connor

In Schroeder v. Weighall, 2014 WL 172665 (Wa., Jan. 16, 2014), the Washington Supreme Court invalidated another portion of Washington’s medical malpractice reform legislation. Specifically, the court invalidated RCW 4.16.190(2), which had eliminated the tolling of the statute of limitations for medical malpractice claims brought by those who alleged malpractice in their care as minors. The court held that the statute violated Article I, Section 12 of the Washington State Constitution, and reversed the trial court’s summary judgment order dismissing Jaryd Schroeder’s medical malpractice action.

In 2001, Jaryd Schroeder was nine years old and suffered from headaches, nausea, dizziness, weakness in his legs and double vision. He sought treatment from the defendants and underwent an MRI (magnetic resonance imaging), which was found to be normal. In 2009, he underwent a second MRI, which showed a brain-tissue malformation that protruded into his spinal column. At that time, his radiologist reviewed the 2001 MRI results and determined that the condition had been missed in 2001. On January 13, 2011, the day before he turned 19 years old, Jaryd brought negligence claims against his 2001 medical providers. They moved for summary judgment based on RCW 4.16.350, which requires a plaintiff to bring a negligence claim within three years of the act, error or omission, or within one year of the date of discovery, whichever is later. Since the acts occurred in 2001 and Jaryd had discovered his claim in November 2009, the defendants argued his January 2011 filing was too late.

In response, Jaryd argued that RCW 4.16.190 tolled the statute of limitations until he reached 18, and thus his claim was timely. However, the trial court disagreed and held that RCW 4.16.190(2) carved out an exception to the tolling provision for medical malpractice claims brought by those injured as minors. As a result, the statute of limitations was not tolled for Jaryd’s claim and Jaryd’s claims were dismissed as untimely.

On appeal, Jaryd argued that RCW 4.16.190(2) was unconstitutional and violated the privileges and immunities and equal protection clauses of the Washington Constitution. The Washington Supreme Court agreed and reinstated Jaryd’s claims. In reaching its conclusion, the court observed the purpose of Article I, Section 12 of the Washington State Constitution is to carefully scrutinize “special interest” legislation. The court then held that there were no reasonable grounds for limiting the tolling rule for medical malpractice claims brought by patients who were injured while they were minors. The court observed that although the legislature may have intended to address escalating insurance rates, there was no evidence in the record or legislative history that demonstrated that RCW 4.16.190(2) would in fact reduce insurance premiums. The court also noted that there was no evidence demonstrating that the statute served the purpose of limiting stale medical malpractice claims. Finally, the court determined that RCW 4.16.190(2) impermissibly distinguished between those who were injured by medical malpractice when they were minors versus those who were injured while otherwise incapacitated.

In response to the defense argument that parents could bring claims on behalf of their minor children within the limitations period without the need for tolling, the court observed that RCW 4.16.190(2) would likely disproportionately affect those who were in foster care, children whose parents are themselves minors, and children whose parents are simply unconcerned. For these reasons, the court held RCW 4.16.190(2) invalid under Article I, Section 12 of the Washington Constitution.

Justice Johnson offered a thoughtful dissent and stated that the Legislature’s decision to allow the tolling of the statute of limitations for certain types of claims but not others was reasonable. He noted that defending older medical malpractice claims is particularly difficult because the standard of care is constantly advancing in medicine. Therefore, the harm done by requiring a health care provider to defend against a stale medical malpractice claim is often more profound than it is for other types of claims. As a result, Justice Johnson found that there were reasonable grounds for the exception to the tolling provision and argued that the court should have affirmed the trial court’s dismissal.

The import of the Schroeder decision is that those who allege they suffered medical malpractice as minors will be permitted to rely on the tolling provisions in RCW 4.16.190. However, we suspect that the argument over how long a minor plaintiff may wait to bring a medical-malpractice claim is not over. Notably, the court did not reach the question whether the eight-year statute of repose set forth in RCW 4.16.350(3) is valid.1 Given that the court previously found an earlier version of the eight-year statute of repose invalid in DeYoung v. Providence Medical Center, 136 Wn.2d 136, 141, 960 P.2d 919 (1998), there may be more litigation over this issue in the future.

1 Jaryd’s claim was not barred by the eight-year statute of repose because the statute was enacted in 2006 and was not given retrospective application.


Written by:

Cozen O'Connor

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.