The Estate of Essex v. Grant Cnty. Pub. Hosp. Dist.

523 P.3d 242

The ESTATE OF Cindy ESSEX, BY AND THROUGH Judy ESSEX, as Personal Representative of the Estate of Cindy Essex, Petitioners,

v.GRANT COUNTY PUBLIC HOSPITAL DISTRICT NO. 1, d/b/a Samaritan Healthcare, a Public Hospital; and Dr. Irene W. Cruite, M.D., and John Doe Cruite, husband and wife, and the marital community composed thereof, Respondents,Confluence Health, a Washington Corporation; Wenatchee Emergency Physicians, PC, a Washington Corporation; DR. Christopher Davis, M.D., and Jane Doe Davis, husband and wife, and the marital community composed thereof; and John and Jane Does 1-10, Defendants.

No. 37804-7-III (consolidated with No. 37994-9-III)

Court of Appeals of Washington, Division 3.

Filed January 24, 2023

William A. Gilbert, Gilbert Law Firm, 421 W Riverside Ave. Ste. 353, Spokane, WA, 99201-0402, Kristine Grelish, Grelish Law PLLC, 1606 148th Ave. Se Ste. 200, Bellevue, WA, 98007-6860, George M. Ahrend, Luvera Law Firm, 421 W Riverside Ave. Ste. 1060 Spokane, WA, 99201-0406, for Appellants.

William A. Gilbert, Gilbert Law Firm, 421 W Riverside Ave. Ste. 353, Spokane, WA, 99201-0402, Kristine Grelish, Grelish Law PLLC, 1606 148th Ave. Se Ste. 200, Bellevue, WA, 98007-6860, for Petitioners.

Eric Allen Norman, Fain Anderson Et Al, Joseph Vickers Gardner, Attorney at Law, 701 5th Ave. Ste. 4750, Seattle, WA, 98104-7089, Amanda Kathleen Thorsvig, Fain Anderson, Et Al, 1301 A St. Ste. 900, Tacoma, WA, 98402-4299, for Defendants.

Jerome R. Aiken, Peter McGillis Ritchie, Meyer, Fluegge & Tenney, P.S., 230 S 2nd St. Ste. 101, Yakima, WA, 98901-2865, Stephen Maurice Lamberson, Megan Christine Clark, Etter McMahon Lamberson Van Wert & Oresk, 618 W Riverside Ave. Ste. 210, Spokane, WA, 99201-5048, for Respondents.

PUBLISHED OPINION

Lawrence-Berrey, A.C.J.

¶1 The trial court certified multiple partial summary judgment orders in this medical malpractice case and we accepted review. We conclude: (1) ostensible agency is the sole basis for holding a hospital vicariously liable for the negligence of nonemployee physicians, (2) summary judgment was properly granted with respect to petitioners’ corporate negligence claim against the hospital, and (3) summary judgment was improperly granted with respect to petitioners’ negligence claims against the hospital's nurses and the radiologist. We affirm in part and reverse in part.

FACTS

¶2 On June 24, 2015, Cindy Essex visited Samaritan Healthcare's¹ emergency department in Moses Lake complaining of left shoulder pain. When Ms. Essex arrived at the emergency department, she was experiencing 10 out of 10 pain and abdominal cramping. She arrived at 2:13 p.m. and was triaged at 2:31 p.m. She was in too much pain to complete paperwork, so her mother completed it instead. At 2:36 p.m., she was taken to a quiet room to wait for the doctor to evaluate her. While waiting, the nurse applied ice to Ms. Essex's left shoulder, which Ms. Essex said helped the pain.

¶3 Dr. Christopher Davis arrived at 3:47 p.m. to assess Ms. Essex. She reported bloody diarrhea, vomiting, general abdominal pain, and said she had some blood in her stool. She also reported increased aching left shoulder pain that was worse with movement and palpation. She said her children all had a fever and she thought she picked up a virus from them.

¶4 Dr. Davis ordered two milligrams of intramuscular hydromorphone for pain, which was administered to Ms. Essex at 3:56 p.m. When reassessed at 4:40 p.m., her pain had gone down to a 7 out of 10. Because her symptoms extended from her shoulder to her abdomen, Dr. Davis ordered x-rays of Ms. Essex's chest and abdomen to keep his "diagnostic net fairly wide." Clerk's Papers (CP) at 987. The x-rays, as read by radiologist Dr. Irene Cruite at 5:19 p.m., showed a "[n]onspecific paucity of gas in the bowel loops with a large gastric air bubble." CP at 523.

¶5 Based on the air bubble in Ms. Essex's stomach and the lack of air in her intestines, Dr. Davis suspected Ms. Essex had a gastric outlet obstruction and ordered a computed tomography (CT) scan of her abdomen and pelvis. Around 5:30 p.m., Ms. Essex's pain was 7 out of 10, and she received one milligram of intravenous hydromorphone. The report of her CT scan was completed at 6:20 p.m. As interpreted by Dr. Cruite, it showed a "[m]arkedly distended stomach with[ ] fluid, suspicious for gastric outlet obstruction although no cause for obstruction is identified. Placement of a nasogastric tube for decompression ... is recommended." CP at 526. At 6:56 p.m., a nasogastric tube was inserted into Ms. Essex's stomach and 1.6 to 1.8 liters of clear green fluid was removed.

¶6 Because the CT scan did not identify a cause of Ms. Essex's gastric outlet obstruction, Dr. Davis consulted with a gastroenterologist, who recommended Ms. Essex be transferred for endoscopy. Dr. Davis spoke with Dr. Stephen Wiest at Central Washington Hospital in Wenatchee, who accepted Ms. Essex as a transfer. Dr. Davis ordered nonemergency ambulance transport and that Ms. Essex be given intravenous medication en route.

¶7 Shift change at Samaritan was at 7:00 p.m., and incoming nurse Zachary Hontz noted there was bruising on Ms. Essex's upper arms that was "small in nature." CP at 236. He noted Ms. Essex was sweating, her abdomen was distended, and she was complaining of lower back pain. He noted her temperature had not previously been charted, but measured it at 98.1 degrees.

¶8 Dr. Davis remained after his shift ended at 7:00 p.m. to complete paperwork. The last care he gave to her was at 7:25 p.m. Dr. Jonathan Kim came on shift at 7:00 p.m. but did not provide any care to Ms. Essex.

¶9 At 8:25 p.m., while waiting for transfer, Ms. Essex reported that her lower back pain was again a 10 out of 10. Nursing staff administered 0.5 milligrams of hydromorphone based on Dr. Davis's standing order to administer as needed.

¶10 At 8:35 p.m., the ambulance arrived to take Ms. Essex from Samaritan in Moses Lake to Central Washington Hospital in Wenatchee. Ms. Essex arrived at Central Washington Hospital at 10:10 p.m. She was very lethargic and had a high heart rate and low blood pressure. A nurse noted redness in Ms. Essex's left inner arm, breast, and chest area. She was given fluids and Dr. Wiest came to see her as soon as possible. The skin redness had darkened and there were new raised areas, which concerned Dr. Wiest as possibly indicating necrotizing fasciitis, a rapidly progressing soft-tissue infection. He ordered additional laboratory tests, which showed "severe elevations in her inflammatory markers." CP at 240. A CT scan at 1:11 a.m. revealed "[e]xtensive contusion or edema in the body wall ... on the left." CP at 251. Dr. Wiest compared the CT scan to that taken at Samaritan and saw areas of inflammation in Ms. Essex's chest wall that were not noted in the CT report.

¶11 Dr. Wiest consulted with a surgeon, who agreed immediate debridement as a lifesaving measure was appropriate. In the 30 to 40 minutes it took the surgeon to arrive, Ms. Essex's skin redness had "rapidly" spread down to her groin. CP at 240-41. The surgery revealed extensive areas of nonviable muscle, beyond anything the surgeon had seen. The extent of necessary debridement was "not consistent with the survivable condition." CP at 249. After surgery, Ms. Essex was moved to comfort care, and she died later that morning.

PROCEDURE

Essex's complaint

¶12 Ms. Essex's estate (Essex) sued multiple entities for negligence, including Samaritan Healthcare, Dr. Davis, and Dr. Cruite. The parties conducted extensive discovery and brought a series of motions for partial summary judgment. The trial court considered extensive briefing and arguments and made a number of rulings, which we summarize below:

• A genuine issue of material fact precludes granting Essex's motion to hold Samaritan vicariously liable for the purported negligence of its nonemployee doctors, Dr. Davis and Dr. Cruite;

• Vicarious liability can be established based only upon ostensible authority; Washington has yet to recognize the theories of nondelegable duty or inherent authority;

• Lack of proximate cause precludes holding (1) Samaritan liable under a theory of corporate negligence, (2) Samaritan liable for the purported negligence of its nurses, and (3) Dr. Cruite liable for her purported negligence for not reporting inflammation in the chest area, visible on the CT scan.

¶13 The superior court certified its orders to this court under RAP 2.3(b)(4). We granted review on (1) whether a nondelegable duty exists for emergency room care in Washington, and (2) whether, in the context of concurrent tortfeasors, expert testimony can create a genuine issue of material fact as to what a subsequent tortfeasor would have done had the prior tortfeasor not been negligent. Comm'r’s Ruling, Estate of Essex v. Grant County Pub. Dist. No. 1 , No. 37804-7-III (Wash. Ct. App. Aug. 19, 2021).

¶14 We later requested supplemental briefing on two issues that appeared to be raised in one of the summary judgment motions: (1) whether Dr. Davis was an agent of Samaritan for respondeat superior liability, and (2) whether Dr. Davis and Dr. Cruite were jointly liable under the common law concerted action theory.

ANALYSIS

A. SUMMARY JUDGMENT AND RECORD ON REVIEW

¶15 A party moving for summary judgment must show there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. CR 56(c). A material fact is one on which the outcome of the litigation depends. Clements v. Travelers Indem. Co. , 121 Wash.2d 243, 249, 850 P.2d 1298 (1993). In deciding a motion for summary judgment, the trial court views all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. Id. We review an order on summary judgment de novo, engaging in the same inquiry as the trial court based on the evidence and issues before it. See McLaughlin v. Travelers Com. Ins. Co. , 196 Wash.2d 631, 637, 476 P.3d 1032 (2020) ; RAP 9.12.

¶16 RAP...