(Medical Malpractice – Part 2 in a Several Part Series)
(This is the second part in a multiple part series pertaining to Medical Malpractice Law in Washington State. To read part one click here.)
Medical Malpractice – Cognizable Claims
Actions against healthcare providers (broadly defined in RCW 7.70.020) for injuries resulting from health care are governed by RCW Chapter 7.70 and RCW 4.24.290.
One would assume that for a statutory scheme that has been in effect for over forty years, the two most basic issues: (1) who can bring a claim under Chapter 7.70 and (2) what types of claims are actionable—would have been answered. For the most part that is true, but there are a few lingering uncertainties.
RCW 7.70.030 states that “[n]o award shall be made” for “injury occurring as a result of health care” unless the plaintiff establishes one of three legal theories, by a preponderance of the evidence: (1) The failure of a health care provider to follow the accepted standard of care; (2) the injury resulted from health care to which the patient did not consent, or (3) the health care provider promised that the injury would not occur. The “promised it won’t happen” claim is the unicorn of medical malpractice law. They may exist but there have been, essentially, no credible sightings. See, Hansen v. Virginia Mason Med. Ctr., 113 Wn. App 199, 208-209, 53 P.3d 60 (2002), where the court held that “an enforceable promise under RCW 70.70.030(2) must relate to the provision of specific medical services and the practitioner must expressly undertake to commit to obtain certain results or cure through a procedure or course of treatment.” A diagnosis or prognosis “not related to a specific undertaking or a specific result or cure through a course of treatment or procedure” is insufficient to state a claim under the statutory subsection. Id., 207.
RCW 7.70.030(2) and (3), the breach of promise and informed consent subsections of the statute, both specify that it is the patient (or the patient’s representative) who has the standing to assert the claim. The most commonly litigated of the three claims, the negligence claim, set out in RCW 7.70.030(1), does not incorporate the word patient, stating only: “That injury resulted from the failure of a health care provider to follow the accepted standard of care.”
Clearly, a health care provider-patient relationship gives rise to a duty of care. Paetsch v. Spokane Dermatology, 182 Wn.2d 842, 850, 348 P.3d 389 (2015). But some courts in Washington have found that a non-patient may bring a claim under RCW 7.70 in circumstances not classically considered to constitute providing health care.
In Daly v. United States, 946 F.2d 1467 (9th Cir. 1991) the court, applying the substantive law of Washington in a medical malpractice case brought pursuant to the Federal Tort Claims Act, found that a physician performing a pre-employment physical had a duty to inform the job applicant of abnormal test results. Id., 1471.
In Eelbode v. Chec Med. Ctrs., Inc., 97 Wn. App 462, 984 P.2d 436 (1999), Division II reversed the order of a trial court granting summary judgment in favor of the defendant medical clinic and held that a physical therapist conducting a pre-employment strength assessment owed the applicant a duty of care und RCW 7.70.030, noting, inter alia, that RCW 7.70.030(1) does not require a health care provider-patient relationship. Id., 467-470.
In a very recent (March 5, 2019) decision by Division II, the court held that a physician performing an independent medical exam on an injured worker at the request of the Department of Labor and Industries was subject to liability under Chapter 7.70, because he was providing health care and therefore owed a duty of care to the worker, irrespective of the lack of a traditional physician-patient relationship. Reagan v. Newton, 2019 Wash. App. LEXIS 485, 2019 WL 1033645. The court upheld the trial court’s dismissal of the claim because the plaintiff failed to present expert testimony that the examiner had violated the standard of care. Id. The court also held that Chapter 7.70 does not “supersede the common law cause of action for medical battery.” Id.
However, it is unclear whether our Supreme Court believes that a non-patient’s claim for injury by a health care provider may be brought under Chapter 7.70. In Paetsch, supra, the Court stated: “At common law, a plaintiff could not assert a cause of action for medical negligence absent a physician-patient relationship.” Id., 850. While acknowledging that other courts in the state had found a duty of care to non-patients under Chapter 7.70, the Paetsch Court declined to examine whether that was the rule in Washington. Id., 850 and footnote 6.
In Volk v. DeMeerleer 187 Wn.2d 241, 386 P.3d 254 (2016), the primary issue was whether a psychiatrist treating a mentally ill man on an outpatient basis owed a duty of care to unidentified but foreseeable third parties who were killed by the patient, thereby extending the Court’s holding in Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983), which held that pursuant to the Restatement (Second) of Torts, Section 315, a mental health professional treating an inpatient owes a duty of reasonable care to anyone foreseeably endangered by the patient and that such duty arises out of the special relationship between the professional and the patient.
The Volk Court affirmed the trial court’s dismissal of Volk’s Chapter 7.70 claim (reversing the court of Appeals) but found, as it had in Peterson v. State, infra, that there was a duty of care owed pursuant to the Restatement (Third), of Torts, Section 315. In so doing, the Court articulated a distinction between a claim for medical negligence and a claim for medical malpractice, stating:
“We begin by noting that Volk’s claim stemming from our Peterson decision is appropriately characterized as a medical negligence claim. As Volk has reiterated repeatedly, perhaps unartfully given the confusion surrounding the issue, the claim based on the Petersen duty is one of medical negligence, not medical malpractice. Though the difference may seem subtle, medical malpractice imposes a duty on the medical professional to act consistently with the standards of the medical profession, and the duty is owed to the medical professional’s patient. See Paetsch v. Spokane Dermatology Clinic, PS, 182 Wn.2d 842, 850, 348 P.3d 389 (2015). At common law, Washington does not recognize a cause of action for medical malpractice absent a physician/patient relationship. See Riste v. Gen. Elec. Co., 47 Wn.2d 680, 682, 289 P.2d 338 (1955). Pursuant to RCW 4.04.010, this common law approach is the law of Washington, and we have previously declined to adopt the view that medical malpractice suits are available to nonpatient third parties against physicians. See Paetsch, 182 Wn.2d at 850 n.6, 348 P.3d 389. Volk fails to address this common law requirement. We therefore affirm the trial court’s grant of summary judgment and reverse the Court of Appeals to the extent that it held that summary judgment was improper regarding the medical malpractice claims because neither Schiering nor her children were Ashby’s patients.
Restatement § 315 imposes an alternate duty to that imposed by medical malpractice. The § 315 duty, as articulated by this court in Petersen, is owed by the medical professional to a victim based on a special relationship between the mental health professional and the professional’s patient. See Petersen, 100 Wash.2d at 428, 671 P.2d 230. The foreseeability of the victim, as well as what actions are required to fulfill this duty, is informed by the standards of the mental health profession.”
Believe it or not, there is a bit more to the ‘cognizable claims’ section; and in the next post, we will finish up with the remaining issues.
(This article was written by Mark Johnson and Michael Sprangers. Mark and Michael’s practice focuses on medical malpractice, legal malpractice, and serious personal injury lawsuits. Their law firm Johnson Flora Sprangers PLLC is located in the Belltown neighborhood of Seattle, Washington.)
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