M.N. v. Multicare Health Sys., Inc., 55288-4-II

519 P.3d 932

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

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

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

No. 55288-4-II

Court of Appeals of Washington, Division 2.

Filed August 23, 2022

Ordered Published Date November 8, 2022

Cari Campen Laufenberg, Benjamin Blystad Gould, Keller Rohrback L.L.P., 1201 3rd Ave. Ste. 3200, Seattle, WA, 98101-3052, Jeff Nicholas Comstock, Attorney at Law, 8018 Linden Ave. N., Seattle, WA, 98103-4340, for Appellants.

Joseph Vickers Gardner, Attorney at Law, Michele Christine Forrar Atkins, Todd Wesley Reichert, Fain Anderson Et Al., 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 Respondent.

Lee, J.

¶1 Class representatives M.N. and G.T.¹ appeal the superior court's order granting summary judgment for MultiCare Health System, Inc. and dismissing the General Treatment Class's negligence claims. M.N. and G.T. argue that the superior court erred in granting summary judgment because MultiCare owed the class a duty and there was a genuine issue of material fact as to proximate cause. We hold that summary judgment was proper because M.N. and G.T. cannot establish the legal causation prong of proximate cause. Accordingly, we affirm the superior court's order granting summary judgment.

FACTS

¶2 In 2018, an investigation was conducted relating to two patients who were diagnosed with Hepatitis C infections despite having no risk factors for the infection. The investigation revealed that a nurse, Cora Weberg, was diverting drugs from the emergency department for her own use. Weberg's drug diversion caused the Hepatitis C infections.²

¶3 MultiCare identified a total of 2,985 patients who were treated with certain drugs in the emergency department while Weberg was working. Weberg treated 208 of the identified patients. The remaining 2,554 patients had no record of being treated by Weberg.

¶4 MultiCare notified 2,762 patients who were treated in the emergency department while Weberg was working that they may be at risk of infection and instructed the patients to get tested for Hepatitis B, Hepatitis C, and the Human Immuno-Deficiency Virus (HIV). The notification letter stated that an employee "may have exposed at least two patients to Hepatitis C." Clerk's Papers (CP) at 462. The letter offered free testing and any related follow-up for Hepatitis and HIV for all patients who were treated with injections in the emergency department while Weberg was working. The letter encouraged people to get tested, but noted that a positive test did not mean that exposure or infection necessarily occurred at MultiCare.³ The letter also stated:

We sincerely apologize for the anxiety that this situation may cause you. This is something that should never happen in any health care facility and we are committed to providing you with support.

....

We understand how concerning this information is for you and that you may have questions. We have established a resource line staffed with individuals who can provide assistance.

... Our team is available Monday through Friday between 8am and 6pm. We want to make this process as easy as possible for you and to alleviate any unease. Your health is important to us.

CP at 462-63.

¶5 After receiving MultiCare's notification letter, patients "who were subject to both actual and potential Hepatitis C exposure" filed a class action lawsuit against MultiCare, alleging a violation of chapter 7.70 RCW and corporate negligence. CP at 27-28. The complaint alleged that MultiCare negligently hired, trained, and supervised Weberg; failed to investigate Weberg and the misuse of drugs; and failed to implement or follow policies and procedures regarding proper medication management. The complaint asserted that, as a result of MultiCare's negligence, the class members

incurred the need for necessary medical care, treatment, and services received as of the filing of this action and with reasonable probability to be required in the future; have incurred inconvenience and loss of time associated with such medical care, treatment, and services; suffered serious emotional distress, including but not limited to living with the knowledge that they could have or potential[ly] will contract a bloodborne pathogen disease, such as Hepatitis C.

CP at 43.

¶6 The superior court granted class certification and certified two classes. The " ‘Weberg Treatment Class’ " included the patients who received treatment from Weberg. CP at 322. The " ‘General Treatment Class’ " included the patients who were in the emergency department and received MultiCare's notification letter but did not receive any treatment from Weberg. CP at 322. M.N. and G.T. were appointed class representatives for the General Treatment Class. The court created two classes to eliminate "any concern that patients not directly treated by Nurse Weberg may not be entitled to relief under the same cause of action" as those patients directly treated by Weberg. CP at 321.

¶7 MultiCare moved for summary judgment for all claims asserted by the General Treatment Class. MultiCare argued that that the injuries alleged by the General Treatment Class were not proximately caused by the alleged negligent acts because the class members suffered no actual exposure.⁴

¶8 In opposing summary judgment, the General Treatment Class argued that it was owed a duty under chapter 7.70 RCW and corporate negligence. Further, the General Treatment Class argued that they were not required to show actual exposure to Hepatitis C in order to establish its claims.

¶9 The superior court granted MultiCare's motion for summary judgment and dismissed the claims alleged by the General Treatment Class against MultiCare. M.N. and G.T. moved for reconsideration of the superior court's order granting summary judgment to MultiCare, which the superior court denied.

¶10 M.N. and G.T. appeal.⁵

ANALYSIS

A. STANDARD OF REVIEW

¶11 We review a trial court's order granting summary judgment de novo. Meyers v. Ferndale Sch. Dist. , 197 Wash.2d 281, 287, 481 P.3d 1084 (2021). We perform the same inquiry as the superior court in its review. City of Seattle v. Long , 198 Wash.2d 136, 145, 493 P.3d 94 (2021).

¶12 We consider the facts and reasonable inferences in the light most favorable to the nonmoving party. Meyers , 197 Wash.2d at 287, 481 P.3d 1084. Summary judgment is appropriate if the pleadings, affidavits, and depositions show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Martin v. Gonzaga Univ. , 191 Wash.2d 712, 722, 425 P.3d 837 (2018) ; CR 56(c).

B. PROXIMATE CAUSE—LEGAL CAUSATION ⁶

¶13 M.N. and G.T. argue that MultiCare's negligence was the proximate cause of the General Treatment Class's injuries. MultiCare argues that the General Treatment Class has failed to establish legal causation and, therefore, failed to establish proximate cause.

1. Legal Principles

¶14 To establish a claim, M.N. and G.T. must show that MultiCare's negligence was the proximate cause of the alleged injuries. RCW 7.70.040(1)(b) ; Douglas v. Freeman , 117 Wash.2d 242, 248, 814 P.2d 1160 (1991). "Proximate cause is defined as a cause ‘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.’ " Collins v. Juergens Chiropractic, PLLC , 13 Wash. App. 2d 782, 793-94, 467 P.3d 126, (internal quotation marks omitted) (quoting Mehlert v. Baseball of Seattle, Inc. , 1 Wash. App. 2d 115, 118, 404 P.3d 97 (2017) ), review denied , 196 Wash.2d 1027, 476 P.3d 564 (2020). Proximate cause requires a showing of two elements: cause in fact and legal causation. Id . at 794, 467 P.3d 126.

¶15 "Legal causation is a question for the court to decide as a matter of law if the facts are undisputed." Id. Legal causation "refers to a ‘policy determination[ ] as to how far the consequences of a defendant's acts should extend.’ " Id . at 794, 467 P.3d 126 (internal quotation marks omitted) (quoting N.L. v. Bethel Sch. Dist. , 186 Wash.2d 422, 437, 378 P.3d 162 (2016) ). The question is "whether those acts are ‘too remote or insubstantial to trigger liability.’ " Id. (internal quotation marks omitted) (quoting N.L. , 186 Wash.2d at 437, 378 P.3d 162 ). Legal causation "is determined by utilizing ‘mixed considerations of logic, common sense, justice, policy, and precedent.’ " Meyers , 197 Wash.2d at 293, 481 P.3d 1084 (internal quotation marks omitted) (quoting Schooley v. Pinch's Deli Mkt., Inc. , 134 Wash.2d 468, 479, 951 P.2d 749 (1998) ).

¶16 The parties do not dispute that the General Treatment Class did not have any actual exposure. However, the parties disagree on whether actual exposure is required, or should even be considered, to establish legal causation. No Washington case has established the legal requirements to prove negligence based on the risk of exposure to infectious diseases. Courts in other states have addressed how to determine proximate cause in cases in which the plaintiff claims that negligence has resulted in damages resulting from a risk of contracting an infectious disease.⁷ See Williamson v. Waldman , 150 N.J. 232, 240-41, 696 A.2d 14 (1997). But, as discussed below, there is neither a universal standard nor a consensus on requiring actual exposure. Rather, there appears to be two categories of approaches: an objective standard requiring the plaintiff to provide some additional evidence proving the risk of exposure and a reasonableness approach focusing on the reasonableness of the plaintiff's fear they were at risk of contracting a communicable disease. Id. at 241-42, 696 A.2d 14.

¶17 Some courts imposing an objective standard require a plaintiff to show actual exposure to a virus. Id. at 241, 696...