Saldivar v. Momah

186 P.3d 1117

145 Wn. App. 365

Perla SALDIVAR and Albert Saldivar, Harish Bharti, Appellants, v. Dennis MOMAH, Jane Doe Momah, and the marital community composed thereof, U.S. Healthworks Medical Group of Washington, P.S., a Washington professional services company, Charles Momah, Jane Doe Momah, and the marital community composed thereof and Does 1-10, Respondents.

No. 34891-8-II.

Court of Appeals of Washington, Division 2.

June 24, 2008.

Howard Mark Goodfriend, Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, Seattle, WA, Marja M. Starczewski, Law Office of Marja Starczewski, PLLC, East Wenatchee, WA, for Appellant.

Tyna Ek, Nancy Katherine McCoid, Soha & Lang PS, Mary H. Spillane, Daniel W. Ferm, Williams Kastner & Gibbs PLLC, Heath Sharpless Fox, Johnson Graffe Keay Moniz & Wick LLP, Vanessa Vanderbrug, John Cornelius Versnel III, Lawrence & Versnel PLLC, Seattle, WA, for Respondent.

Emily Lieberman, Attorney at Law, Molly Anne Lawrence, GordonDerr LLP, Kelly O'Connell, Catherine A. Carroll, Sexual Violence Law Center, Seattle, WA, Amicus Curiae on behalf of Nw Women's Law Center & WA Coalition of Sexual Assault Programs.

Paul Nicholas Luvera Jr., J. Andrew Hoyal II, Luvera Barnett Brindley Beninger et al, Seattle, WA, Amicus Curiae on behalf of Luvera Law Firm.

QUINN-BRINTNALL, J.

¶ 1 Following a bench trial, Perla and Albert Saldivar appeal the trial court's dismissal of their case against Dennis Momah, Charles Momah, and U.S. Healthworks for damages caused by alleged sexual abuse as well as the trial court's ruling in favor of Dennis's¹ counterclaims. The Saldivars argue: (1) they are immune from liability under RCW 4.24.510, (2) the trial court erred when it denied them a jury trial, (3) the trial court erred when it found them liable for abuse of process, and (4) the trial court erred when it excluded certain evidence. In addition, the Saldivars' attorney, Harish Bharti, appeals the trial court's imposition of sanctions against him. We affirm in part and reverse in part.

FACTS

BACKGROUND

¶ 2 In May 2003, Perla went to U.S. Healthworks' clinic in Puyallup for diagnosis, treatment, and physical therapy for a work-related back injury.² According to clinic records, Dennis treated Perla on May 27 and June 26, 2003.

MEDICAL QUALITY ASSURANCE COMMISSION COMPLAINT

¶ 3 In October 2003, the Saldivars sent a letter to the Medical Quality Assurance Commission (MQAC), a division of the Department of Health, alleging that "Dr. Dennis Momah" had seen her on May 27, June 19, and June 26, and that he had "touched [her] improperly" on the "buttocks" on "two occasions without [her] consent and with the excuse that he needed to check [her] injuries." Ex. 8, 19. Perla also reported that Dennis was quite brusque with her when he "grabbed" a referral form from her hand during her last appointment. Ex 19. Perla further stated that Dennis had given her medication that he refused to identify, stating only that it was for "severe pain." Ex. 19. Perla also claimed that when she asked for a referral to another doctor, Dennis became angry and left the room for approximately 25 minutes. The letter did not allege that two different look-alike doctors treated Perla or that Dennis had touched her vagina. A MQAC investigator advised the Saldivars that Dennis's alleged sexual abuse constituted a crime. Nevertheless, MQAC closed the file on the original complaint, finding "no cause for action." Clerk's Papers (CP) at 626.

POLICE REPORT

¶ 4 After MQAC closed the file on the Saldivars' complaint, they retained Bharti as their attorney. Perla then filed a declaration and complaint with the Federal Way Police Department, alleging for the first time that Dennis "sexually assaulted [her] by unnecessarily putting his hand in [her] vagina." Ex. 20. Perla testified that Bharti helped her prepare the declaration. Perla also alleged for the first time that she believed two different doctors treated her during one of her visits to U.S. Healthworks. Specifically, Perla alleged that the first doctor was wearing brown shoes, while the second doctor had an "orthopedic shoe on one foot, which was black with velcro." ³ Ex. 20. Perla stated that she was "certain [she] saw two different persons who looked alike" during her examination. Ex. 20. The Federal Way Police Department took no action on the Saldivars' complaint.

COMPLAINT

¶ 5 On April 5, 2004, the Saldivars sued Dennis and U.S. Healthworks for negligence, lack of informed consent, breach of fiduciary duty, violation of the Consumer Protection Act, ch. 19.86 RCW, and outrage. The complaint alleged that Perla had been seen by Dennis three times⁴ and that during two of those visits he had "placed his hands on and in" Perla's vagina and on the third visit he "began touching [her] buttocks." CP at 9-10. The complaint also alleged that on "at least one" occasion, Perla was seen by two different physicians who looked "mostly alike." CP at 11. For the first time, Perla mentioned that the two doctors' "weight appeared different," but repeated her previous allegation that the second doctor wore an orthopedic shoe. CP at 11. Her complaint also stated that the second doctor was unable to remember her condition or which medications she was allergic to, even though she had discussed her condition and allergies with the (first) doctor. The complaint further alleged that during Perla's last visit, she was concerned that Dennis would conduct "another vaginal examination," and that she requested a nurse be present during the examination. CP at 10. Despite her request, Perla acquiesced to the examination without a nurse because "Dennis Momah" raised his voice at her and she wanted to believe that he was "sincere and treating her appropriately." CP at 10. The complaint further alleged that during the examination, he began "touching [her] buttocks," prompting her to refuse further treatment. CP at 10.

¶ 6 Next, the complaint alleged U.S. Healthworks was negligent in their medical care of Perla because it failed to obtain her informed consent and acted in an improper and unethical manner. U.S. Healthworks moved for summary judgment on these issues and the trial court granted its motion. The only remaining claim against U.S. Healthworks was for negligence for failing to have a female present in the examination room, and in failing to provide Perla with a different doctor. The Saldivars do not raise any issues On appeal regarding the trial court's dismissal of U.S. Healthworks.

¶ 7 In his answer, Dennis counterclaimed, alleging intentional infliction of emotional distress (outrage), negligent infliction of emotional distress, and abuse of process. Specifically, Dennis claimed that the Saldivars' complaint in the instant case, as well as their complaint to the MQAC and the Federal Way police, were "without good cause and for [the] improper motive[ ]," of "obtain[ing] money" from him under "false pretenses." CP at 32.

INTERROGATORIES

¶ 8 On July 6, 2004, Perla answered interrogatories in which she stated for the first time that she had seen Dennis on four occasions, not three.⁵ Perla repeated her allegations about impersonation and sexual abuse.

PERLA'S DEPOSITION

¶ 9 During a deposition on September 7, 2004, Perla repeated her allegations of impersonation and sexual abuse. For the first time, Perla stated that she knew "right away" that the second doctor was a different person. CP at 628. Perla also stated for the first time that Dennis "didn't touch [her]" on the June 26 visit. CP at 629.

AMENDED COMPLAINT

¶ 10 On September 15, 2004, King County charged Charles, Dennis's twin brother, with raping or taking indecent liberties with four of his patients and with insurance fraud. On September 30, 2004, the Saldivars moved to amend their complaint to add Charles as a defendant. The Saldivars supported the motion with a new declaration in which Perla stated for the first time that (1) she learned at Dennis's deposition that Charles is Dennis's twin brother; (2) the second doctor's accent and manner of speech differed from the first doctor; (3) the second doctor had a scar on his face,⁶ while the first did not; (4) after seeing a KOMO 4 News report about Charles's arraignment, hearing his manner of speech, and noticing the scar on his face, Perla believed "that [she] was treated by two different physicians, Charles Momah and Dennis Momah," while she was at Dennis's Puyallup clinic; and (5) it was Charles, not Dennis, who sexually assaulted her during two of her visits to Dennis's office. CP at 66.

¶ 11 The proposed amended complaint alleged that either Charles or Dennis had put "his hands on and in" Perla's vagina during two visits, but the Saldivars dropped allegations as to specific dates. CP at 43. The proposed amended complaint repeated Perla's allegations regarding the June 26 visit, but stated for the first time that Perla was touched "inappropriately" during her "last" visit, rather than on the buttocks or the vagina. CP at 44. The trial court granted the Saldivars' motion to amend the complaint.

ALBERT'S DEPOSITION

¶ 12 On June 13, 2005, the defense deposed Albert, Perla's husband. He stated that the lawsuit was "not about the money issue," but was about making sure that "these people don't practice medicine again." CP at 810. Albert testified that he went to the Puyallup clinic only once, on Perla's third visit, and waited in the car. Then, in contrast, he stated that during Perla's "third and final visit" he waited outside her exam room and "heard her tell the young girl" that she wanted a different doctor to treat her. 2 Report of Proceedings (RP) at 180. Albert also stated that he saw Dennis in the clinic lobby on Perla's second visit. Lastly, Albert testified by deposition that he learned about Charles from Bharti in September or October, 2003.

¶ 13 At trial, Albert testified that he first learned of Charles from the newspapers, not from Bharti. In contrast to his...