M.N. v. Multicare Health Sys., Inc.

541 P.3d 346

M.N. and G.T., individually and on behalf of all others similarly situated, Petitioners,

A.B. and W.N., individually and on behalf of all others similarly situated, Plaintiffs,

v.MULTICARE HEALTH SYSTEM, INC., a Washington corporation, Respondent.

No. 101537-2

Supreme Court of Washington, En Banc.

Argued September 26, 2023

Filed January 18, 2024

Cari Campen Laufenberg, Benjamin Blystad Gould, Chris Nathaniel Ryder, Kylie Nicole Fisher, Keller Rohrback LLP, 1201 3rd Ave. Ste. 3200, Seattle, WA, Jeff Nicholas Comstock, Attorney at Law, 8018 Linden Ave. N., Seattle, WA, for Petitioners.

Michele Christine Forrar Atkins, Todd Wesley Reichert, Amanda Kathleen Thorsvig, Joseph Vickers Gardner, Fain Anderson, et al., 3131 Elliott Ave. Ste. 300, Seattle, WA, for Respondent.

Michael F. Madden, Rhianna Marie Fronapfel, Bennett Bigelow & Leedom PS, 601 Union St. Ste. 1500, Seattle, WA, for Amicus Curiae on behalf of Washington State Hospital Association.

Gregory Austin Jacoby, Lori Marie Bemis, McGavick Graves, 1102 Broadway Ste 500, P.O. Box 1317 Tacoma, WA, Seth Michael Dawson, Terrell Marshall Law Group PLLC, 936 N. 34th St. Ste. 300, Seattle, WA, for Amicus Curiae on behalf of Tacoma-Pierce County Health Department.

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

OWENS, J.

¶1 A nurse employed by MultiCare Health System, Cora Weberg (Nurse Weberg), improperly diverted injectable narcotics for her own use. She infected some emergency department patients with hepatitis C and may have exposed many more. MultiCare notified all patients who received injectable narcotics while Nurse Weberg was on duty that they were potentially exposed. MultiCare encouraged these patients to have their blood tested for hepatitis C, hepatitis B, and HIV (human immunodeficiency virus). As a result of these tests, MultiCare determined that only patients assigned to Nurse Weberg were actually at risk.

¶2 The patients brought a class action suit. They claim MultiCare failed to meet the accepted standard of care in supervising and hiring Nurse Weberg. The trial court divided the class into two groups: those who were assigned to Nurse Weberg and those who were not. It then dismissed the claims of the second group. The trial court ruled that legal causation was not satisfied because Nurse Weberg did not directly treat these patients. The Court of Appeals affirmed. We reverse both courts and hold that legal causation is satisfied. Both classes can proceed with their chapter 7.70 RCW claims.

FACTS AND PROCEDURAL HISTORY

¶3MultiCare Health System operates Good Samaritan Hospital in Puyallup. Clerk's Papers (CP) at 1-2. In 2018, two patients who had previously received care at Good Samaritan tested positive for hepatitis C, despite not having any risk factors for the disease. CP at 84. Both patients had received intravenous injections of narcotics from the same nurse—Nurse Weberg—in the hospital's emergency department. CP at 143. Nurse Weberg was suspected of diverting drugs for her own use. CP at 110. Drug diversion is a known problem in health care settings. CP at 520-32. Hospitals usually develop policies and procedures to track drugs at risk of being diverted and the personnel administering them. Id. The parties do not contest that Weberg committed misconduct and likely caused the hepatitis C outbreak. CP at 143.

¶4After learning of Nurse Weberg's misconduct, MultiCare sent a letter to all 2,762 patients who received injectable narcotics in Good Samaritan's emergency department while Nurse Weberg was on duty. CP at 462-63, 349. The letter stated, "an employee in the Emergency Department may have exposed at least two patients to Hepatitis C virus, causing them to become infected." CP at 462. It offered complimentary blood testing for hepatitis C, hepatitis B, and HIV to all letter recipients and cautioned, "The only way to be certain you were not infected is to have your blood tested." Id. The letter also stated that patients may need to undergo additional testing within six months to rule out infection. Id .

¶5 MultiCare sent the letter both to patients who were assigned to Nurse Weberg and those who were not. CP at 462-63, 465-66, 468-69. Tacoma-Pierce County Health Department (TPCHD) and the United States Centers for Disease Control and Prevention (CDC) recommended testing for both groups of patients. CP at 75, 104. The hospital internally designated patients assigned to Weberg as "high risk" and the others as "low risk." CP at 364-66. However, it sent the same letter to both groups. CP at 462-66.

¶6 Overall, 1,863 people had their blood tested. CP at 85. The tests identified 11 more cases of hepatitis C. Id. All 13 patients who tested positive for hepatitis C had been assigned to Nurse Weberg during their emergency room (ER) visit. CP at 365-66.

Procedural History

¶7 M.N., A.B., G.T., and W.N. brought this class action on behalf of all persons who received the notification letter from MultiCare. CP at 7, 27-28. They alleged negligent supervision and hiring under a theory of corporate negligence and under chapter 7.70 RCW. CP at 298. Chapter 7.70 RCW provides a cause of action for injuries resulting "from the failure of a health care provider to follow the accepted standard of care." RCW 7.70.030(1). The class claimed damages for "severe emotional and mental anguish" and for "medical care, treatment, and services." CP at 2, 12. We note that not all class members had their blood tested, and therefore some patients experienced only emotional harm.

¶8 The trial court certified two classes of patients. The "Weberg Treatment Class" consists of the 208 patients assigned to Nurse Weberg. CP at 322. The "General Treatment Class" consists of the 2,554 patients who were not assigned to Nurse Weberg. Id. Neither class contains individuals who were infected with the strain of hepatitis C linked to Weberg. CP at 664 n.1.

¶9 MultiCare moved to dismiss the General Treatment Class's claims on a motion for summary judgment. CP at 325-45. It argued that the General Treatment Class failed to prove legal causation. CP at 340. MultiCare said that because Nurse Weberg did not treat this group, they did not experience harm "caused by" a negligently supervised employee. Id. (emphasis omitted). Furthermore, it argued that this group could not prove they were ever at risk of exposure to the virus. CP at 336. MultiCare urged the court to adopt a rule that would require proof of actual exposure to a disease before plaintiffs can recover. CP at 332. The trial court granted MultiCare's motion, reasoning that imposing liability without actual exposure could chill a hospital's investigation of disease outbreaks. CP at 724. It dismissed the General Treatment Class's claims. CP at 660-61.

¶10 Division II affirmed the trial court's dismissal in a divided opinion. The majority held that the General Treatment Class did not establish legal causation. M.N. v. MultiCare Health Sys., Inc ., 23 Wash. App. 2d 558, 568, 519 P.3d 932 (2022). It held that public policy weighed in favor of limiting liability when a hospital responds to a disease outbreak. Id. This court accepted review. M.N. v. MultiCare Health Sys., Inc. , 1 Wash.3d 1001, 526 P.3d 839 (2023).

ISSUES

¶11 (1) Do the General Treatment Class's alleged injuries arise "as the result of health care" as required for a chapter 7.70 RCW claim?

¶12 (2) Is legal causation met when a hospital's negligent supervision and hiring potentially exposes patients to a bloodborne pathogen, inducing fear and requiring blood testing?

ANALYSIS

¶13 This court is reviewing an order granting summary judgment and considers questions of law de novo. Jones v. Allstate Ins. Co ., 146 Wash.2d 291, 300, 45 P.3d 1068 (2002).

1. The General Treatment Class's Alleged Injuries Arise "as the Result of Health Care" as Required for a Chapter 7.70 RCW Claim

¶14 MultiCare argues that the General Treatment Class does not have a claim under chapter 7.70 RCW because their injuries do not arise as the result of health care. MultiCare Health Sys., Inc.’s Suppl. Br. (Resp't’s Suppl. Br.) at 26. It points out that they were never treated by Nurse Weberg and Nurse Weberg is the one who committed misconduct. Id . However, the General Treatment Class does not argue they were harmed by Weberg's negligence but by the hospital's negligence in supervising and hiring her.

¶15 Chapter 7.70 RCW governs "all civil actions and causes of action, whether based on tort, contract, or otherwise, for damages for injury occurring as a result of health care." RCW 7.70.010. The General Treatment Class's claim falls under RCW 7.70.030(1) as it argues that MultiCare failed "to follow the accepted standard of care." To prevail, the General Treatment Class must prove that MultiCare failed to exercise the degree of care, skill, and learning of a reasonably prudent health care provider and that such failure proximately caused their injury. RCW 7.70.040(1). However, for a plaintiff's claim to fall under chapter 7.70 RCW, the injury must occur "as a result of health care." RCW 7.70.010.

¶16 Chapter 7.70 RCW does not define "health care," but Washington courts have defined it as " ‘the process in which [a physician is] utilizing the skills which he had been taught in examining, diagnosing, treating, or caring for the plaintiff as his patient.’ " Sherman v. Kissinger , 146 Wash. App. 855, 867, 195 P.3d 539 (2008) (alteration in original) (quoting Branom v. State , 94 Wash. App. 964, 969-70, 974 P.2d 335 (1999) ).

¶17 Individuals and entities beyond physicians can provide health care. Chapter 7.70 RCW defines "health care provider" as "[a] person licensed by this state to provide health care or related services." RCW 7.70.020(1). "Health care provider" also includes nonhuman actors, such as a "hospital," "facility, or...