Burghart v. S. Corr. Entity

1

CHARLEEN BURGHART, Administrator of the Estate of Nicole Burghart; and LAWRENCE DOLAN, as Guardian ad Litem for H.G., a minor individual, Plaintiffs, v. SOUTH CORRECTIONAL ENTITY, a Governmental Administrative Agency; CRYSTAL REHTOLC-CANTU; SCORE JOHN DOES 1-10; NAPHCARE, INC.; ROBIN OLSEN; KERI JAMES; ANGELICA DELEON MCKEOUGH; NAPHCARE JOHN DOES 1-10; and TECHCARE JOHN DOE ENTITY, Defendants.

No. C22-1248 TSZ

United States District Court, W.D. Washington, Seattle

February 3, 2023

ORDER

Thomas S. Zilly United States District Judge

THIS MATTER comes before the Court on Defendants Keri James's Robin Olsen's, Angelica DeLeon McKeough's, and NaphCare, Inc.'s, (together, the “NaphCare Defendants”) motion to dismiss, docket no. 22. Having reviewed all papers filed in support of, and in opposition to, the motion, the Court enters the following Order.

Background

On September 14, 2019, and at all times relevant to this litigation, Decedent Nicole Burghart (the “Decedent”) was an inmate at Defendant South Correctional Entity (“SCORE”), a regional jail. Am. Compl. ¶ 1 (docket no. 4). SCORE contracts with Defendant NaphCare, Inc., (“NaphCare”) to provide medical services to inmates. Am. Compl. ¶ 2. NaphCare uses TechCare, an electronic health software system,^[1]to keep records on NaphCare's patients. Am. Compl. ¶ 30.

When the Decedent entered SCORE's care, she reported to Defendant Nurse Robin Olsen (“Olsen”), a NaphCare employee, that she suffered from recent, significant alcohol use. Am. Compl. ¶ 39. Olsen placed the Decedent on CIWA monitoring.^[2] Am. Compl. ¶¶ 42-44. Olsen allegedly did not collect sufficient historical information about the Decedent's condition relevant to her withdrawal. Am. Compl. ¶ 44.

By September 15, 2019, the Decedent's condition allegedly started to worsen. That morning, Defendant Nurse Keri James (“James”), another NaphCare employee, observed tremors in the Decedent's “extremities and tongue profuse[] sweating, [] chills, [] nausea, dripping sweat, and displaying elevated heart rate and blood pressure.” Am Compl. ¶ 45. These symptoms allegedly indicate an emergent state of alcohol withdrawal. Am. Compl. ¶ 46. Later that day, Defendant Nurse Angelica DeLeon McKeough (“DeLeon”) (together, with Olsen and James, the “Nurses”) observed similar symptoms, Am. Compl. ¶ 47, but DeLeon did not record these symptoms in the TechCare system. Am. Compl. ¶ 51. That evening, James again checked on the Decedent, where she allegedly observed high blood pressure, nausea, diaphoresis, and a significant tremor. James entered these symptoms into TechCare, but she allegedly did not take further action. Am. Compl. ¶¶ 52-53. At this point, the Decedent allegedly should have been placed in an adequate medical facility. Am. Compl. ¶ 74.

Plaintiffs allege that the TechCare system emitted multiple alerts during this period about the Decedent's status, but the Nurses purportedly failed to address these alerts. Am. Compl. ¶ 62. The Nurses also allegedly made numerous charting mistakes in the TechCare system, which included time-entry errors and failures to accurately report the Decedent's symptoms. Am. Compl. ¶ 63. The Nurses allegedly ignored their own medical training in favor of the TechCare automated recommendations, Am. Compl. ¶ 64, and the Decedent never saw a doctor or nurse practitioner, Am. Compl. ¶ 67.

On the evening of September 15, 2019, half an hour after James's observation, the Decedent suffered a seizure. Am. Compl. ¶ 54. As a result, her breathing became erratic and stopped. Am. Compl. ¶¶ 53-55. During this time, Defendant Correctional Officer Crystal Rehtolc-Cantu (“Cantu”) conducted a welfare check at SCORE. One of the main purposes of Cantu's welfare check was to ensure that none of the inmates were suffering from a medical emergency. Am. Compl. ¶ 58. During the welfare check, the Decedent allegedly took her final, agonal breath. Am. Compl. ¶ 56. Cantu did not notice the Decedent's distress. Am. Compl. ¶ 58. Because Cantu did not notice the Decedent's medical emergency, the Decedent allegedly lost the ability to be resuscitated. Am. Compl. ¶ 59.

Plaintiffs bring the following claims in this action: (1) a negligence claim against all Defendants, (2) a Washington Product Liability Act (“WPLA”) claim under RCW 7.72.030 against NaphCare, (3) a 42 U.S.C. § 1983 claim against Cantu and SCORE-employed John Doe Defendants, (4) a 42 U.S.C. § 1983 claim against SCORE, (5) a 42 U.S.C. § 1983 claim against the Nurses and NaphCare-employed John Doe Defendants, and (6) a 42 U.S.C. § 1983 claim against NaphCare. Am. Compl. ¶¶ 87-103. The NaphCare Defendants now move to dismiss Plaintiffs' first, second, fifth, and sixth claims. Mot. (docket no. 22).

Discussion

Although a complaint challenged by a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss need not provide detailed factual allegations, it must offer “more than labels and conclusions” and contain more than a “formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must indicate more than mere speculation of a right to relief. Id. A complaint may be lacking for one of two reasons: (i) absence of a cognizable legal theory, or (ii) insufficient facts under a cognizable legal claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). In ruling on a motion to dismiss, the Court must assume the truth of the plaintiff's allegations and draw all reasonable inferences in the plaintiff's favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The question for the Court is whether the facts in the amended complaint sufficiently state a “plausible” ground for relief. Twombly, 550 U.S. at 570. If the Court considers matters outside the complaint, it must convert the motion into one for summary judgment. Fed.R.Civ.P. 12(d). If the Court dismisses the complaint or portions thereof, it must consider whether to grant leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

A. First Claim: Negligence

The parties agree that Plaintiffs' negligence claims against the NaphCare Defendants are medical malpractice claims under RCW 7.70. Pl. Resp. Br. at 14 (docket no. 24). “In a [healthcare] malpractice action, the plaintiff must satisfy traditional tort elements of proof: duty, breach, injury, and proximate cause.” Dunnington v. Virginia Mason Med. Ctr., 187 Wn.2d 629, 636, 389 P.3d 498 (2017). The NaphCare Defendants dispute only the causation element. They argue that Plaintiffs have not properly pleaded proximate cause primarily because Cantu's actions functioned as a superseding cause.

Proximate cause must be “one that in natural and continuous sequence, unbroken by an independent cause, produces the injury complained of and without which the ultimate injury would not have occurred.” Attwood v. Albertson's Food Ctrs., Inc., 92 Wn.App. 326, 330, 966 P.2d 351 (1998) (citations omitted). Where “[t]he connection between the original negligent action and an injury” is broken by “an intervening force,” then the original act cannot form the “proximate cause of the injury.” Daly v. Lynch, 24 Wn.App. 69, 75, 600 P.2d 592 (1979) (citations omitted). To determine whether an intervening act is a “superseding cause,” courts consider “whether (1) the intervening act created a different type of harm than otherwise would have resulted from the actor's negligence; (2) the intervening act was extraordinary or resulted in extraordinary consequences;” and “(3) the intervening act operated independently of any situation created by the actor's negligence.” Roemmich v. 3M Co., 21 Wn.App. 2d 939, 953, 509 P.3d 306 (2022). In any action, there can be more than one proximate cause for an injury. WPI 15.01.

Despite the NaphCare Defendants' argument to the contrary, Plaintiffs have adequately pleaded causation. Plaintiffs allege that the Nurses' poor decision-making, errors in charting and documenting the Decedent's symptoms, and failure to escalate treatment to a doctor or hospital deprived the Decedent of the opportunity to receive effective treatment. Am. Compl. ¶¶ 62-69. The NaphCare Defendants' motion to dismiss Plaintiffs' First Claim for Relief is therefore DENIED.

B. Second Claim: WPLA

Plaintiffs allege that NaphCare's TechCare system, a software-as-service technology, qualifies NaphCare as a “manufacturer” and “product seller” under the WPLA, RCW 7.72. See Pl. Resp. Br. at 20 (describing the services that the software rendered to the Nurses). “[T]o state a claim under the WPLA, a plaintiff must plead non-conclusory allegations that plausibly support (1) a defective design claim; (2) a failure to warn claim; (3) a defective manufacture claim; or (4) a breach of express or implied warranty claim.” Olympic Air, Inc. v. Helicopter Tech. Co., No. C17-1257, 2020 WL 6381810, at *2 (W.D. Wash. Oct. 30, 2020). Courts in this District have held that the WPLA does not apply to software services as a matter of law. See Quinteros v. InnoGames, No. C19-1402, 2022 WL 898560, at *7 (W.D. Wash. Mar. 28, 2022), reconsideration denied, 2022 WL 953507 (W.D. Wash. Mar. 30, 2022) (analyzing a subscription to an online video game as a software-as-service). “Washington courts have repeatedly rejected attempts to bring claims under the WPLA with respect to services rendered rather than defective products as required by the statutory language.” Grigsby v. Valve Corp., No. C12-0553, 2013 WL 12310666, at *6 (W.D. Wash. Mar. 18, 2013); 33 Wash. Practice, Construction Law Manual § 17:3 (2012) (“[D]espite the fact that services are often presented as ‘products' to purchase, they are not considered products under the WPLA.”).^[3]

As a matter of law, the facts as currently pleaded...