Essex v. Grant Cty. Pub. Hosp. Dist. No. 1

546 P.3d 407

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 Respondent,Dr. Irene W. Cruite, MD, and John Doe Cruite, husband and wife, and the marital community composed thereof; Confluence Health, a Washington Corporation; Wenatchee Emergency Physicians, PC, a Washington Corporation; Dr. Christopher Davis, MD, and Jane Doe Davis, husband and wife, and the marital community composed thereof; and John and Jane Does 1-10, Defendants.

No. 101745-6

Supreme Court of Washington, En Banc.

Argued October 24, 2023

Filed: April 11, 2024

Appeal from Grant County Superior Court, Docket No: 18-2-00746-8, Honorable John D. Knodell, Judge.

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 Petitioner.

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

Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave. Ste. 1300, Spokane, WA 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, 98607-8302, for Amicus Curiae on behalf of Wa State Association for Justice Foundation.

Peter J. Mullenix, Friedman Rubin, 1109 1st Ave. Ste. 501, Seattle, WA, 98101-2988, for Amicus Curiae on behalf of Washington Advocates for Patient Safety.

Gregory Mann Miller, Linda Blohm Clapham, Isaac Chandler Prevost, Carney Badley Spellman PS, 701 5th Ave. Ste. 3600, Seattle, WA 98104-7010, for Amici Curiae on behalf of Association of WA Public Hospital Districts and Washington State Hospital Association.

Eric Mien Norman, Joseph Vickers Gardner, Amanda Kathleen Thorsvig, Fain Anderson et al., 3131 Elliott Ave. Ste. 300, Seattle, WA 98121-3015, for Other Parties.

González, C.J.

¶1 A patient who goes to the emergency room, if conscious, is mostly concerned with getting care, not with untangling the contractual relationship between the hospital and the doctors who work there. And yet the characterization of the hospital-doctor relationship has profound implications for a patient’s ability to recover against the hospital for negligent treatment. This case asks us to decide when a hospital may be liable for the negligence of a doctor working in, but not as an employee of, a hospital in its emergency room.

¶2 Cindy Essex¹ went to Samaritan Hospital’s emergency room because she was experiencing unbearable pain in her left shoulder. Doctors working at, but not as employees of, Samaritan failed to diagnose Cindy’s necrotizing fasciitis, an aggressive soft-tissue infection. Cindy died less than 24 hours later. Her estate seeks to hold Samaritan liable for the doctors’ alleged negligence under theories of nondelegable duty, inherent function, and agency law principles of delegation.

¶3 We conclude that our statutes and regulations impose nondelegable duties on hospitals concerning the provision of emergency services. A hospital remains responsible for those nondelegable duties regardless of whether it performs those duties through its own staff or contracts with doctors who are independent contractors to do so. Accordingly, we reverse the Court of Appeals and remand for further proceedings consistent with this opinion.

FACTS

¶4 Cindy Essex went to Samaritan Hospital’s emergency room complaining of unbearable pain in her left shoulder and chest that radiated to her abdomen. When Cindy arrived at the emergency room, she was incoherent and experiencing a pain level of 10 out of 10. As a result, her mother, Judy Essex, checked Cindy in and signed the treatment consent form.² Cindy continued to writhe and cry out in pain. Nurses moved Cindy to a quiet room to wait for a doctor.

¶5 Shortly after arriving, nurses triaged Cindy. About an hour later, Dr. Christopher Davis, an independent contractor, evaluated Cindy. Cindy reported increasing left shoulder pain, blood in her stool, vomiting, and a fever. Dr. Davis ordered pain medication, and Cindy’s reported pain level subsequently decreased to 7 out of 10.

¶6 Dr. Davis ordered x-rays and a CT (computerized tomography) scan to keep his "diagnostic net fairly wide." Clerk’s Papers (CP) at 987. The x-rays showed "a large gastric air bubble" in Cindy’s abdomen. CP at 519. A CT scan showed a "[m]arkedly distended stomach" with "fluid, suspicious for gastric outlet obstruction although no cause for obstruction [was] identified." Id. Relying on the x-rays and CT scan, Dr. Davis diagnosed Cindy with gastric outlet obstruction and ordered a nasogastric tube as recommended by Dr. Irene Cruite. Dr. Cruite was the radiologist responsible for interpreting Cindy’s scans. Like Dr. Davis, Dr. Cruite was an independent contractor, not a Samaritan employee.

¶7 Cindy reported feeling better following the insertion of the nasogastric tube. Dr. Davis consulted with a gastroenterologist about the cause of Cindy’s gastric outlet obstruction. Dr. Davis transferred Cindy to Central Washington Hospital at the recommendation of the gastroenterologist.

¶8 While waiting to be transferred, Cindy’s pain returned to a level of 10 out of 10. Nurses administered pain medication, but it does not appear that they told Dr. Davis about Cindy’s recurring pain. Almost five hours after she arrived at Samaritan’s emergency room, a nurse reported bruising on Cindy’s upper arms for the first time. It does not appear that this bruising was reported to Dr. Davis.

¶9 Cindy arrived at Central Washington Hospital just after 10:00 p.m. Cindy continued to suffer extreme lower back and abdomen pain. Nurses noted redness on Cindy’s inner arm and chest. This redness darkened, and nurses noted new raised areas on Cindy’s skin. Dr. Stephen Wiest took over Cindy’s care. Dr. Wiest reviewed Cindy’s CT scans from Samaritan and identified "some soft-tissue skin changes" that Dr. Cruite previously failed to recognize and report. CP at 543. Dr. Wiest ordered further laboratory testing that indicated elevated inflammation. Concerned by "the possibility of necrotizing fasciitis," Dr. Wiest ordered an additional CT scan that "showed worsening soft-tissue swelling." Id, Dr. Wiest called for examination by a surgeon.

¶10 A surgeon arrived and evaluated Cindy. Doctors discovered the extent of Cindy’s necrotizing fasciitis while attempting debridement, the removal of dead, infected, or damaged tissue. Doctors concluded that her condition was ultimately "nonsurvivable." CP at 243, 249. Dr. Wiest moved Cindy to comfort care where she later died.

¶11 Cindy’s mother, serving as the personal representative of the estate of Cindy Essex (Essex), brought a medical negligence and wrongful death claim against Samaritan, Dr. Davis, and Dr. Cruite, among others. Essex asserted that the defendants owed Cindy a duty of care, that they breached that duty, and that Cindy died as a result of that breach. Essex also claimed that Samaritan was liable under a theory of corporate negligence.

¶12 After extensive discovery including expert declarations and depositions, Essex moved for partial summary judgment concerning Samaritan’s potential vicarious liability for Dr. Davis’s and Dr. Cruite’s alleged negligence. Essex argued that Samaritan was liable under several legal theories including, in part, (1) nondelegable duty, (2) inherent function, and (3) delegation.³ The trial court denied Essex’s motion.

¶13 Samaritan successfully sought summary judgment concerning Essex’s (1) corporate negligence claim and (2) vicarious liability claim concerning the acts of Samaritan’s nurses. The trial court certified its orders to the Court of Appeals under RAP 2.3(b)(4).

¶14 The Court of Appeals concluded, in part, that "(1) ostensible agency is the sole basis for holding a hospital vicariously liable for the negligence of nonemployee physicians" and (2) summary judgment was appropriate concerning Essex’s corporate negli- gence claim against Samaritan. Ext. of Esser v. Grant County Pub. Hosp. Dish No. 1, 25 Wash. App. 2d 272, 274, 523 P.3d 242 (2023).

¶15 We granted review.

Analysis

¶16 The hospital-doctor-patient relationship is ever evolving. Before the 20th century, doctors generally provided health care through house calls. Laura D. Hermer, The Scapegoat: EMTALA and Emergency Department Overcrowding, 14 J.L. & Pol’y 695, 702 (2006) (citing Paul Starr, The Social Transformation of American Medicine 68-71 (1982)). As the quality of modern medicine increased, the prevalence of house calls decreased. Id. Instead, patients traveled to their doctors’ private offices. Id. Meanwhile, with advancements in surgical care, the need for hospitals grew. Id. at 703. Hospitals extended admitting privileges to doctors, which allowed them to use the hospital’s facilities. Patients needing more complex care could meet their own doctor at the hospital for treatment.

¶17 Modern hospitals " ‘do far more than furnish facilities for treatment.’ " Adamski v. Tacoma Gen. Hosp., 20 Wash. App. 98, 106, 579 P.2d 970 (1978) (quoting Bing v. Thunig, 2 N.Y.2d 656, 666, 143 N.E.2d 3, 163 N.Y.S.2d 3 (1957)). As in this case, a patient can go to a hospital emergency room without contacting their personal doctor and be treated by a nonemployee physician. See Adamski, 20 Wash. App. at 108, 579 P.2d 970. The relevant common law, of course, developed before current conditions existed. As so often happens, we must decide how those common law principles apply to these new conditions.

¶18 The main question before us is whether ostensible agency is the only theory under which a hospital can be vicariously...