Burghart v. South Correctional Entity

• Court: District Court, W.D. Washington
• Decided: February 3, 2023
• Docket: 2:22-cv-01248
• Status: Unknown

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 CHARLEEN BURGHART, Administrator of the Estate of Nicole 8 Burghart; and LAWRENCE DOLAN, as Guardian ad Litem for H.G., a 9 minor individual, 10 Plaintiffs, 11 v. C22-1248 TSZ 12 SOUTH CORRECTIONAL ENTITY, a Governmental Administrative ORDER 13 Agency; CRYSTAL REHTOLC- CANTU; SCORE JOHN DOES 1–10; 14 NAPHCARE, INC.; ROBIN OLSEN; KERI JAMES; ANGELICA 15 DELEON MCKEOUGH; NAPHCARE JOHN DOES 1–10; and 16 TECHCARE JOHN DOE ENTITY, 17 Defendants. 18 THIS MATTER comes before the Court on Defendants Keri James’s, Robin 19 Olsen’s, Angelica DeLeon McKeough’s, and NaphCare, Inc.’s, (together, the “NaphCare 20 Defendants”) motion to dismiss, docket no. 22. Having reviewed all papers filed in 21 support of, and in opposition to, the motion, the Court enters the following Order. 22 1 Background 2 On September 14, 2019, and at all times relevant to this litigation, Decedent

3 Nicole Burghart (the “Decedent”) was an inmate at Defendant South Correctional Entity 4 (“SCORE”), a regional jail. Am. Compl. ¶ 1 (docket no. 4). SCORE contracts with 5 Defendant NaphCare, Inc., (“NaphCare”) to provide medical services to inmates. Am. 6 Compl. ¶ 2. NaphCare uses TechCare, an electronic health software system,1 to keep 7 records on NaphCare’s patients. Am. Compl. ¶ 30. 8 When the Decedent entered SCORE’s care, she reported to Defendant Nurse

9 Robin Olsen (“Olsen”), a NaphCare employee, that she suffered from recent, significant 10 alcohol use. Am. Compl. ¶ 39. Olsen placed the Decedent on CIWA monitoring.2 Am. 11 Compl. ¶¶ 42–44. Olsen allegedly did not collect sufficient historical information about 12 the Decedent’s condition relevant to her withdrawal. Am. Compl. ¶ 44. 13 By September 15, 2019, the Decedent’s condition allegedly started to worsen.

14 That morning, Defendant Nurse Keri James (“James”), another NaphCare employee, 15 observed tremors in the Decedent’s “extremities and tongue, profuse[] sweating, [] chills, 16 [] nausea, dripping sweat, and displaying elevated heart rate and blood pressure.” Am. 17 Compl. ¶ 45. These symptoms allegedly indicate an emergent state of alcohol 18 withdrawal. Am. Compl. ¶ 46. Later that day, Defendant Nurse Angelica DeLeon

20 1 Defendant TechCare appears to be a trademark of NaphCare and does not appear to be a legal entity. Plaintiffs are DIRECTED to show cause as to why Defendant TechCare should not be dismissed from 21 this case within fourteen (14) days of this Order. 2 The Clinical Institute Withdrawal Assessment for alcohol (“CIWA”) is a scale to monitor symptoms of 22 withdrawal and recommend treatment. Am. Compl. ¶ 42. 1 McKeough (“DeLeon”) (together, with Olsen and James, the “Nurses”) observed similar 2 symptoms, Am. Compl. ¶ 47, but DeLeon did not record these symptoms in the TechCare

3 system. Am. Compl. ¶ 51. That evening, James again checked on the Decedent, where 4 she allegedly observed high blood pressure, nausea, diaphoresis, and a significant tremor. 5 James entered these symptoms into TechCare, but she allegedly did not take further 6 action. Am. Compl. ¶¶ 52–53. At this point, the Decedent allegedly should have been 7 placed in an adequate medical facility. Am. Compl. ¶ 74. 8 Plaintiffs allege that the TechCare system emitted multiple alerts during this

9 period about the Decedent’s status, but the Nurses purportedly failed to address these 10 alerts. Am. Compl. ¶ 62. The Nurses also allegedly made numerous charting mistakes in 11 the TechCare system, which included time-entry errors and failures to accurately report 12 the Decedent’s symptoms. Am. Compl. ¶ 63. The Nurses allegedly ignored their own 13 medical training in favor of the TechCare automated recommendations, Am. Compl.

14 ¶ 64, and the Decedent never saw a doctor or nurse practitioner, Am. Compl. ¶ 67. 15 On the evening of September 15, 2019, half an hour after James’s observation, the 16 Decedent suffered a seizure. Am. Compl. ¶ 54. As a result, her breathing became erratic 17 and stopped. Am. Compl. ¶¶ 53–55. During this time, Defendant Correctional Officer 18 Crystal Rehtolc-Cantu (“Cantu”) conducted a welfare check at SCORE. One of the main

19 purposes of Cantu’s welfare check was to ensure that none of the inmates were suffering 20 from a medical emergency. Am. Compl. ¶ 58. During the welfare check, the Decedent 21 allegedly took her final, agonal breath. Am. Compl. ¶ 56. Cantu did not notice the 22 Decedent’s distress. Am. Compl. ¶ 58. Because Cantu did not notice the Decedent’s 1 medical emergency, the Decedent allegedly lost the ability to be resuscitated. Am. 2 Compl. ¶ 59.

3 Plaintiffs bring the following claims in this action: (1) a negligence claim against 4 all Defendants, (2) a Washington Product Liability Act (“WPLA”) claim under RCW 5 7.72.030 against NaphCare, (3) a 42 U.S.C. § 1983 claim against Cantu and SCORE- 6 employed John Doe Defendants, (4) a 42 U.S.C. § 1983 claim against SCORE, (5) a 42 7 U.S.C. § 1983 claim against the Nurses and NaphCare-employed John Doe Defendants, 8 and (6) a 42 U.S.C. § 1983 claim against NaphCare. Am. Compl. ¶¶ 87–103. The

9 NaphCare Defendants now move to dismiss Plaintiffs’ first, second, fifth, and sixth 10 claims. Mot. (docket no. 22). 11 Discussion 12 Although a complaint challenged by a Federal Rule of Civil Procedure 12(b)(6) 13 motion to dismiss need not provide detailed factual allegations, it must offer “more than

14 labels and conclusions” and contain more than a “formulaic recitation of the elements of 15 a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint 16 must indicate more than mere speculation of a right to relief. Id. A complaint may be 17 lacking for one of two reasons: (i) absence of a cognizable legal theory, or (ii) insufficient 18 facts under a cognizable legal claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d

19 530, 534 (9th Cir. 1984). In ruling on a motion to dismiss, the Court must assume the 20 truth of the plaintiff’s allegations and draw all reasonable inferences in the plaintiff’s 21 favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The question for 22 the Court is whether the facts in the amended complaint sufficiently state a “plausible” 1 ground for relief. Twombly, 550 U.S. at 570. If the Court considers matters outside the 2 complaint, it must convert the motion into one for summary judgment. Fed. R. Civ. P.

3 12(d). If the Court dismisses the complaint or portions thereof, it must consider whether 4 to grant leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 5 A. First Claim: Negligence 6 The parties agree that Plaintiffs’ negligence claims against the NaphCare 7 Defendants are medical malpractice claims under RCW 7.70. Pl. Resp. Br. at 14 (docket 8 no. 24). “In a [healthcare] malpractice action, the plaintiff must satisfy traditional tort

9 elements of proof: duty, breach, injury, and proximate cause.” Dunnington v. Virginia 10 Mason Med. Ctr., 187 Wn.2d 629, 636, 389 P.3d 498 (2017). The NaphCare Defendants 11 dispute only the causation element. They argue that Plaintiffs have not properly pleaded 12 proximate cause primarily because Cantu’s actions functioned as a superseding cause. 13 Proximate cause must be “one that in natural and continuous sequence, unbroken

14 by an independent cause, produces the injury complained of and without which the 15 ultimate injury would not have occurred.” Attwood v. Albertson’s Food Ctrs., Inc., 92 16 Wn. App. 326, 330, 966 P.2d 351 (1998) (citations omitted). Where “[t]he connection 17 between the original negligent action and an injury” is broken by “an intervening force,” 18 then the original act cannot form the “proximate cause of the injury.” Daly v. Lynch, 24

19 Wn. App. 69, 75, 600 P.2d 592 (1979) (citations omitted). To determine whether an 20 intervening act is a “superseding cause,” courts consider “whether (1) the intervening act 21 created a different type of harm than otherwise would have resulted from the actor’s 22 negligence; (2) the intervening act was extraordinary or resulted in extraordinary 1 consequences;” and “(3) the intervening act operated independently of any situation 2 created by the actor’s negligence.” Roemmich v. 3M Co., 21 Wn. App. 2d 939, 953, 509

3 P.3d 306 (2022). In any action, there can be more than one proximate cause for an injury. 4 WPI 15.01. 5 Despite the NaphCare Defendants’ argument to the contrary, Plaintiffs have 6 adequately pleaded causation. Plaintiffs allege that the Nurses’ poor decision-making, 7 errors in charting and documenting the Decedent’s symptoms, and failure to escalate 8 treatment to a doctor or hospital deprived the Decedent of the opportunity to receive

9 effective treatment. Am. Compl. ¶¶ 62–69. The NaphCare Defendants’ motion to dismiss 10 Plaintiffs’ First Claim for Relief is therefore DENIED. 11 B. Second Claim: WPLA 12 Plaintiffs allege that NaphCare’s TechCare system, a software-as-service 13 technology, qualifies NaphCare as a “manufacturer” and “product seller” under the

14 WPLA, RCW 7.72. See Pl. Resp. Br. at 20 (describing the services that the software 15 rendered to the Nurses). “[T]o state a claim under the WPLA, a plaintiff must plead non- 16 conclusory allegations that plausibly support (1) a defective design claim; (2) a failure to 17 warn claim; (3) a defective manufacture claim; or (4) a breach of express or implied 18 warranty claim.” Olympic Air, Inc. v. Helicopter Tech. Co., No. C17-1257, 2020 WL

19 6381810, at *2 (W.D. Wash. Oct. 30, 2020). Courts in this District have held that the 20 WPLA does not apply to software services as a matter of law. See Quinteros v. 21 InnoGames, No. C19-1402, 2022 WL 898560, at *7 (W.D. Wash. Mar. 28, 2022), 22 reconsideration denied, 2022 WL 953507 (W.D. Wash. Mar. 30, 2022) (analyzing a 1 subscription to an online video game as a software-as-service). “Washington courts have 2 repeatedly rejected attempts to bring claims under the WPLA with respect to services

3 rendered rather than defective products as required by the statutory language.” Grigsby v. 4 Valve Corp., No. C12-0553, 2013 WL 12310666, at *6 (W.D. Wash. Mar. 18, 2013); 33 5 Wash. Practice, Construction Law Manual § 17:3 (2012) (“[D]espite the fact that services 6 are often presented as ‘products’ to purchase, they are not considered products under the 7 WPLA.”).3 8 As a matter of law, the facts as currently pleaded do not appear to subject the

9 TechCare software to the WPLA’s regime. See Quinteros, 2022 WL 898560, at *7. As 10 such, this theory may be inapplicable to the TechCare software. The NaphCare 11 Defendants’ motion is therefore GRANTED as to the Second Claim for Relief, and it is 12 DISMISSED without prejudice and with leave to amend, although the Court is skeptical 13 that any amendment will cure the deficiency.

14 C. Fifth and Sixth Claims: § 1983 15 Finally, Plaintiffs allege § 1983 claims against the Nurses and a Monell claim 16 against NaphCare. The Court addresses these claims separately. 17 a. Individual Claims 18 “[C]laims for violations of the right to adequate medical care brought by pretrial

19 detainees against individual defendants under the Fourteenth Amendment must be 20

21 3 Plaintiff’s reliance on Frisvold v. Pentair Filtration Sols. LLC, C17-136, 2017 WL 3236972, (W.D. Wash. July 31, 2017), is misplaced. Frisvold concerned a physical product—an under-sink water filter. It 22 did not examine a software-as-service application. 1 evaluated under an objective deliberate indifference standard.” Gordon v. Cnty. of 2 Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (citing Castro v. County of Los Angeles,

3 833 F.3d 1060 (9th Cir. 2016) (internal quotations omitted)). Under this standard for 4 § 1983 liability, the elements of a pretrial detainee’s medical care claim against an 5 individual defendant are as follows: 6 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff 7 at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable 8 official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; 9 and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. 10 Id. at 1125. The Nurses argue that Plaintiffs do not meet their burden under the third 11 element of the deliberate indifference test. With respect to the third element, a 12 defendant’s conduct must be “objectively unreasonable . . . something akin to reckless 13 disregard.” Id. 14 The Court agrees that Plaintiffs do not currently meet this high bar. As currently 15 pleaded, the operative complaint alleges medical negligence, but no more. See, e.g., 16 Sharkey v. NaphCare, Inc., No. 18-CV-0025, 2020 WL 2563821, at *3 (D. Nev. May 20, 17 2020); Bell v. Mahoney, No. 18-cv-05280, 2020 WL 4334115, at *5 (C.D. Cal. May 18, 18 2020). Under the operative pleading, the Nurses flagged the Decedent for alcohol 19 withdrawal and monitored her symptoms three times in one day. Am. Compl. ¶¶ 39–53. 20 Although the nurses allegedly did not take all efforts necessary to care for the Decedent, 21 the current allegations do not state a claim that the Nurses recklessly disregard her 22 1 condition. Said differently, the operative pleading does not allege that the Nurses engaged 2 in conduct that was “medically unacceptable under the circumstances” in disregard of “an

3 excessive risk” to the Decedent’s health. Wallace v. NaphCare Healthcare, No. 19-CV- 4 5329, 2020 WL 7872043, at * 7 (W.D. Wash. Nov. 9, 2020). Instead, Plaintiffs plead a 5 lack of due care, and nothing more.4 The Court therefore GRANTS the motion as it 6 relates to Plaintiffs’ § 1983 claim against the Nurses and NaphCare-employed John Doe 7 Defendants and DISMISSES Plaintiffs’ Fifth Claim for Relief without prejudice and with 8 leave to amend.

9 b. Monell Liability 10 To adequately plead a § 1983 claim under Monell against NaphCare, Plaintiffs 11 must plausibly allege, “(1) that [the detainee] possessed a constitutional right of which he 12 was deprived; (2) that [the defendant] had a policy; (3) that this policy amounts to 13 deliberate indifference to the [detainee’s] constitutional right, and (4) that the policy is

14 the moving force behind the constitutional violation.” Dougherty v. City of Covina, 654 15 F.3d 893, 900 (9th Cir. 2011). Section 1983 does not allow for respondeat superior 16 liability—“a municipality can be found liable . . . only where the municipality itself 17 causes the constitutional violation.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385 18 (1989); see also Taylor v. City of Seattle, No. C18-262 TSZ, 2018 WL 5024029, at *3

19 20 4 Plaintiffs’ reliance on Dawson v. South Correctional Entity, No. C19-1987, 2021 WL 4244202 (W.D. Wash. Sept. 17, 2021), is misplaced. In Dawson, the court denied a motion for summary judgment based on material issues of fact. According to the court, the record contained “substantial evidence for the jury 21 to find that each of the Defendants disregarded known and obvious risks” to the decedent’s health. Id. at *5 (dispute of material fact as to whether the decedent was left alone for 12–17 hours, stopped eating, and 22 vomited over the course of many days). 1 (W.D. Wash. Oct. 17, 2018). As such, courts routinely dismiss § 1983 claims against 2 employers where plaintiffs allege only incidents of employee negligence or misconduct.

3 See Bd. of Cnty. Comm’rs. of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997) 4 (collecting cases). Instead, a plaintiff must allege an official policy or custom that 5 amounts to deliberate indifference. Dougherty, 654 F.3d at 900. 6 Plaintiffs allege that ten incidents—three of which do not involve NaphCare, five 7 of which did not occur at SCORE, and six of which do not involve alcohol withdrawal— 8 amount to an official policy of deliberate indifference. Am. Compl. ¶ 75. Plaintiffs make

9 no other (non-conclusory) allegations concerning any NaphCare official policy. These 10 allegations fail to meet the required standard. Although “persistent” and “widespread” 11 instances of conduct can evince an official policy, the conduct at issue in this case is 12 neither “persistent” nor “widespread” enough to form the basis of Monell liability. 13 Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), holding modified by Navarro v.

14 Block, 250 F.3d 729 (9th Cir. 2001) (“The custom [at issue] must be so persistent and 15 widespread that it constitutes a permanent and well settled . . . policy” and “[l]iability for 16 improper custom may not be predicated on isolated or sporadic incidents” (citation and 17 quotation marks omitted)). Plaintiffs’ allegations sound in individualized negligence, not 18 an overarching policy. The NaphCare Defendants’ motion is therefore GRANTED as it

19 relates to Plaintiffs’ sixth claim against NaphCare, and the claim is DISMISSED without 20 prejudice and with leave to amend. 21 22 1 Conclusion 2 For the foregoing reasons, the Court ORDERS:

3 (1) The NaphCare Defendants’ motion is DENIED as to Plaintiffs’ First Claim 4 for Relief. 5 (2) The motion is otherwise GRANTED as it relates to Plaintiffs’ Second, 6 Fifth, and Sixth Claims for Relief, and those claims are DISMISSED without prejudice 7 and with leave to amend. 8 (3) Plaintiffs are DIRECTED to show cause as to why Defendant TechCare

9 should not be dismissed from this case within fourteen (14) days of this Order. 10 (4) Plaintiffs shall file any amended complaint within fourteen (14) days of this 11 Order. Any answer or responsive pleading shall be due fourteen (14) days thereafter. 12 (5) The Clerk is directed to send a copy of this Order to all counsel of record. 13 IT IS SO ORDERED.

14 Dated this 3rd day of February, 2023. 15 A 16 Thomas S. Zilly 17 United States District Judge 18 19 20 21 22