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FILED JANUARY 24, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
THE ESTATE OF CINDY ESSEX, by ) No. 37804-7-III and through JUDY ESSEX, as Personal ) (consolidated with Representative of the ESTATE OF ) No. 37994-9-III) CINDY ESSEX, ) ) Petitioners, ) ) v. ) ) GRANT COUNTY PUBLIC HOSPITAL ) DISTRICT NO. 1, d/b/a SAMARITAN ) HEALTHCARE, a Public Hospital; and ) DR. IRENE W. CRUITE, M.D., and ) PUBLISHED OPINION JOHN DOE CRUITE, husband and wife, ) and the marital community composed ) thereof, ) ) Respondents, ) ) CONFLUENCE HEALTH, a Washington ) Corporation; WENATCHEE ) EMERGENCY PHYSICIANS, PC, a ) Washington Corporation; DR. ) CHRISTOPHER DAVIS, M.D., and ) JANE DOE DAVIS, husband and wife, ) and the marital community composed ) thereof; and JOHN and JANE DOES 1-10, ) ) Defendants. ) For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
LAWRENCE-BERREY, A.C.J. — The trial court certified multiple partial summary
judgment orders in this medical malpractice case and we accepted review. We conclude:
(1) ostensible agency is the sole basis for holding a hospital vicariously liable for the
negligence of nonemployee physicians, (2) summary judgment was properly granted with
respect to petitioners’ corporate negligence claim against the hospital, and (3) summary
judgment was improperly granted with respect to petitioners’ negligence claims against
the hospital’s nurses and the radiologist. We affirm in part and reverse in part.
FACTS
On June 24, 2015, Cindy Essex visited Samaritan Healthcare’s1 emergency
department in Moses Lake complaining of left shoulder pain. When Ms. Essex arrived at
the emergency department, she was experiencing 10 out of 10 pain and abdominal
cramping. She arrived at 2:13 p.m. and was triaged at 2:31 p.m. She was in too much
pain to complete paperwork, so her mother completed it instead. At 2:36 p.m., she was
taken to a quiet room to wait for the doctor to evaluate her. While waiting, the nurse
applied ice to Ms. Essex’s left shoulder, which Ms. Essex said helped the pain.
Dr. Christopher Davis arrived at 3:47 p.m. to assess Ms. Essex. She reported
bloody diarrhea, vomiting, general abdominal pain, and said she had some blood in her
1 Grant County Hospital District No. 1 doing business as Samaritan Healthcare.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
stool. She also reported increased aching left shoulder pain that was worse with
movement and palpation. She said her children all had a fever and she thought she picked
up a virus from them.
Dr. Davis ordered two milligrams of intramuscular hydromorphone for pain, which
was administered to Ms. Essex at 3:56 p.m. When reassessed at 4:40 p.m., her pain had
gone down to a 7 out of 10. Because her symptoms extended from her shoulder to her
abdomen, Dr. Davis ordered x-rays of Ms. Essex’s chest and abdomen to keep his
“diagnostic net fairly wide.” Clerk’s Papers (CP) at 987. The x-rays, as read by
radiologist Dr. Irene Cruite at 5:19 p.m., showed a “[n]onspecific paucity of gas in the
bowel loops with a large gastric air bubble.” CP at 523.
Based on the air bubble in Ms. Essex’s stomach and the lack of air in her
intestines, Dr. Davis suspected Ms. Essex had a gastric outlet obstruction and ordered a
computed tomography (CT) scan of her abdomen and pelvis. Around 5:30 p.m., Ms.
Essex’s pain was 7 out of 10, and she received one milligram of intravenous
hydromorphone. The report of her CT scan was completed at 6:20 p.m. As interpreted
by Dr. Cruite, it showed a “[m]arkedly distended stomach with[ ] fluid, suspicious for
gastric outlet obstruction although no cause for obstruction is identified. Placement of a
nasogastric tube for decompression . . . is recommended.” CP at 526. At 6:56 p.m., a
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
nasogastric tube was inserted into Ms. Essex’s stomach and 1.6 to 1.8 liters of clear green
fluid was removed.
Because the CT scan did not identify a cause of Ms. Essex’s gastric outlet
obstruction, Dr. Davis consulted with a gastroenterologist, who recommended Ms. Essex
be transferred for endoscopy. Dr. Davis spoke with Dr. Stephen Wiest at Central
Washington Hospital in Wenatchee, who accepted Ms. Essex as a transfer. Dr. Davis
ordered nonemergency ambulance transport and that Ms. Essex be given intravenous
medication en route.
Shift change at Samaritan was at 7:00 p.m., and incoming nurse Zachary Hontz
noted there was bruising on Ms. Essex’s upper arms that was “small in nature.” CP at
236. He noted Ms. Essex was sweating, her abdomen was distended, and she was
complaining of lower back pain. He noted her temperature had not previously been
charted, but measured it at 98.1 degrees.
Dr. Davis remained after his shift ended at 7:00 p.m. to complete paperwork. The
last care he gave to her was at 7:25 p.m. Dr. Jonathan Kim came on shift at 7:00 p.m. but
did not provide any care to Ms. Essex.
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
At 8:25 p.m., while waiting for transfer, Ms. Essex reported that her lower back
pain was again a 10 out of 10. Nursing staff administered 0.5 milligrams of
hydromorphone based on Dr. Davis’s standing order to administer as needed.
At 8:35 p.m., the ambulance arrived to take Ms. Essex from Samaritan in Moses
Lake to Central Washington Hospital in Wenatchee. Ms. Essex arrived at Central
Washington Hospital at 10:10 p.m. She was very lethargic and had a high heart rate and
low blood pressure. A nurse noted redness in Ms. Essex’s left inner arm, breast, and
chest area. She was given fluids and Dr. Wiest came to see her as soon as possible. The
skin redness had darkened and there were new raised areas, which concerned Dr. Wiest as
possibly indicating necrotizing fasciitis, a rapidly progressing soft-tissue infection. He
ordered additional laboratory tests, which showed “severe elevations in her inflammatory
markers.” CP at 240. A CT scan at 1:11 a.m. revealed “[e]xtensive contusion or edema
in the body wall . . . on the left.” CP at 251. Dr. Wiest compared the CT scan to that
taken at Samaritan and saw areas of inflammation in Ms. Essex’s chest wall that were not
noted in the CT report.
Dr. Wiest consulted with a surgeon, who agreed immediate debridement as a
lifesaving measure was appropriate. In the 30 to 40 minutes it took the surgeon to arrive,
Ms. Essex’s skin redness had “rapidly” spread down to her groin. CP at 240-41. The
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
surgery revealed extensive areas of nonviable muscle, beyond anything the surgeon had
seen. The extent of necessary debridement was “not consistent with the survivable
condition.” CP at 249. After surgery, Ms. Essex was moved to comfort care, and she
died later that morning.
PROCEDURE
Essex’s complaint
Ms. Essex’s estate (Essex) sued multiple entities for negligence, including
Samaritan Healthcare, Dr. Davis, and Dr. Cruite. The parties conducted extensive
discovery and brought a series of motions for partial summary judgment. The trial court
considered extensive briefing and arguments and made a number of rulings, which we
summarize below:
• A genuine issue of material fact precludes granting Essex’s motion to hold Samaritan vicariously liable for the purported negligence of its nonemployee doctors, Dr. Davis and Dr. Cruite; • Vicarious liability can be established based only upon ostensible authority; Washington has yet to recognize the theories of nondelegable duty or inherent authority; • Lack of proximate cause precludes holding (1) Samaritan liable under a theory of corporate negligence, (2) Samaritan liable for the purported negligence of its nurses, and (3) Dr. Cruite liable for her purported negligence for not reporting inflammation in the chest area, visible on the CT scan.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
The superior court certified its orders to this court under RAP 2.3(b)(4). We
granted review on (1) whether a nondelegable duty exists for emergency room care in
Washington, and (2) whether, in the context of concurrent tortfeasors, expert testimony
can create a genuine issue of material fact as to what a subsequent tortfeasor would have
done had the prior tortfeasor not been negligent. Comm’r’s Ruling, Estate of Essex v.
Grant County Pub. Dist. No. 1, No. 37804-7-III (Wash. Ct. App. Aug. 19, 2021).
We later requested supplemental briefing on two issues that appeared to be raised
in one of the summary judgment motions: (1) whether Dr. Davis was an agent of
Samaritan for respondeat superior liability, and (2) whether Dr. Davis and Dr. Cruite were
jointly liable under the common law concerted action theory.
ANALYSIS
A. SUMMARY JUDGMENT AND RECORD ON REVIEW
A party moving for summary judgment must show there is no genuine issue of
material fact and that they are entitled to judgment as a matter of law. CR 56(c). A
material fact is one on which the outcome of the litigation depends. Clements v.
Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993). In deciding a motion
for summary judgment, the trial court views all facts and reasonable inferences therefrom
in the light most favorable to the nonmoving party. Id. We review an order on summary
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
judgment de novo, engaging in the same inquiry as the trial court based on the evidence
and issues before it. See McLaughlin v. Travelers Com. Ins. Co., 196 Wn.2d 631, 637,
476 P.3d 1032 (2020); RAP 9.12.
RAP 9.12 instructs that we consider only the evidence called to the attention of the
trial court on review of a motion for summary judgment. But this is not the typical review
of a summary judgment order. Here, the case is before us on interlocutory review at a
point in the litigation where the trial court could revise its rulings. See Hubbard v.
Scroggin, 68 Wn. App. 883, 887, 846 P.2d 580 (1993). We therefore consider the entire
trial court record in our review of each and all of the certified orders.2
B. SAMARITAN’S POTENTIAL VICARIOUS LIABILITY
Essex contends the trial court erred by limiting Samaritan’s potential vicarious
liability for the acts of Dr. Davis and Dr. Cruite to the theory of ostensible agency. We
discuss the other theories posited by Essex below.
2 During oral argument, we discussed the unusual procedural posture of these orders and questioned the parties whether we should review the entire record for each and all of the certified orders. They agreed we should. Wash. Court of Appeals oral argument, Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1, No. 37804-7-III (Dec. 7, 2022), at 18 min., 19 sec. through 26 min., 51 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-3-court-of-appeals-2022121161/?eventID=2022121161.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
Nondelegable duty
Essex contends Samaritan has a nondelegable duty to provide emergency care that
subjects it to vicarious liability for the actions of Dr. Davis and Dr. Cruite. We disagree.
The existence of a duty is a question of law we review de novo. Pedroza v.
Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984). In Adamski v. Tacoma General
Hospital, 20 Wn. App. 98, 111 n.5, 579 P.2d 970 (1978), we suggested that Washington
regulations arguably imposed on hospitals a nondelegable duty to provide emergency care
services to the public. We discussed the relevant regulations in place at the time:
The regulations require a licensed hospital to provide emergency care services in accordance with the community’s needs and the hospital’s capabilities. Within this general framework, however, the hospital is also required to adopt written policies and procedures specific to emergency care services. One requirement is that there must be a physician responsible for the services, whose functions and responsibilities are subject to the medical direction of the hospital.
Id. (emphasis omitted). While these regulations are no longer in place, Essex argues
current regulations impose such a duty.
The Department of Health has authority to promulgate regulations to “establish
and adopt such minimum standards and rules pertaining to the construction, maintenance,
and operation of hospitals . . . particularly for the establishment and maintenance of
standards of hospitalization required for the safe and adequate care and treatment of
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
patients.” RCW 70.41.030. Pursuant to this authority, the Department of Health has
adopted regulations requiring “hospital leaders” to “[p]rovide all patients access to safe
and appropriate care.” WAC 246-320-136(5). Leaders must “[a]dopt and implement
policies and procedures which define standards of care for each specialty service” and
“[p]rovide practitioner oversight for each specialty service” including emergency
services. WAC 246-320-136(3), (4). Hospitals need not provide emergency services, but
if they do, they must “[m]aintain the capacity to perform emergency triage and medical
screening exam twenty-four hours per day; . . . [d]efine the qualifications and oversight of
staff delivering emergency care services; . . . [and u]se hospital policies and procedures
which define standards of care.” WAC 246-320-281(2)-(4).
While a hospital must “[a]ssure emergency equipment, supplies and services
necessary to meet the needs of patients are immediately available,”3 the regulations no
longer impose the requirement, identified in Adamski, that there be “physician responsible
for the services, whose functions and responsibilities are subject to the medical direction
of the hospital.” 20 Wn. App. at 111 n.5. Instead, a hospital need only assure there is “at
least one registered nurse skilled and trained in emergency care services on duty and in
3 WAC 246-330-225(4).
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
the hospital at all times, who is: (a) [i]mmediately available to provide care; and
(b) [t]rained and current in advanced cardiac life support.” WAC 246-320-281(5).
Unlike in Adamski, the current statutes and regulations do not create a duty to have
a physician provide medical care in an emergency department, let alone one subject to the
control of the hospital. We see no basis to hold Samaritan vicariously liable for the
actions of Dr. Davis and Dr. Cruite based on the duties identified in the statutes and
regulations.
Inherent function
Essex argues the court erred in denying its motion for summary judgment on the
basis that Dr. Davis and Dr. Cruite were performing an inherent function of the hospital.
We disagree.
Essex asserts that the Adamski court recognized that when a physician is
performing an inherent function of a hospital, the hospital is subject to vicarious liability
for the physician’s actions. Samaritan disputes the court recognized such a duty. We thus
discuss the case in more detail.
In Adamski, a patient injured his finger while playing basketball and sought
treatment in the defendant’s emergency room. 20 Wn. App. at 100. He experienced
complications with the wound and brought an action for damages against the emergency
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
room physician, Dr. Tsoi, the group of physicians to which Dr. Tsoi belonged and that
contracted with the hospital for its emergency department staffing and the hospital. Id. at
102. The patient alleged that the hospital was liable in part because Dr. Tsoi was acting
as its agent. Id. The trial court granted summary judgment in favor of the hospital,
concluding Dr. Tsoi was an independent contractor rather than an employee of the
hospital. Id. at 103.
On appeal, the court extensively discussed principles of agency in the context of a
hospital’s relationship with its nonemployee doctors. We noted that applying the
traditional right to control test to this relationship “usually leads to unrealistic and
unsatisfactory results, at least from the standpoint of the injured patient.” Id. at 105. We
proceeded to discuss various approaches to hospital liability that other courts had
developed. In rejecting its prior theory of hospital immunity, the New York Court of
Appeals had reasoned:
“The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes, as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of ‘hospital facilities’ expects that the hospital will attempt to
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
cure him, not that its nurses or other employees will act on their own responsibility.”
Id. at 106 (emphasis omitted) (quoting Bing v. Thunig, 2 N.Y.2d 656, 666, 143 N.E.2d 3,
163 N.Y.S.2d 3 (1957)).
The Adamski court discussed how California had developed the Brown test, which
applied if the patient sought treatment primarily from the hospital (rather than the doctor)
and if the hospital paid the doctor a salary (rather than the doctor billing the patient). Id.
at 107 (citing Brown v. La Societe Francaise de Bienfaisance Mutuelle, 138 Cal. 475,
71 P. 516 (1903)). We noted that other courts moved to a “significant relationship”
approach, looking at whether, in light of all the facts and circumstances, the relationship
between the physician and the hospital was significant enough that the rule of respondeat
superior should apply. Id. at 108. Under that approach, when a hospital chooses to
“provide medical treatment rather than merely serving as a place for a private physician to
administer to his patients, the physician employed to deliver that service for the hospital
may be looked upon as an integral part of the total ‘hospital enterprise.’” Id. We viewed
this as a “more enlightened approach” to determining respondeat superior liability. Id.
In analyzing Dr. Tsoi’s agency for the purpose of the hospital’s respondeat
superior liability, the Adamski court first applied the Brown test, finding the first prong
satisfied because the patient went directly to the emergency room and did not choose his
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
doctor. Id. at 111-12. The second prong, however, failed because Dr. Tsoi’s physician
group billed patients for its professional services rather than receiving a salary from the
hospital. Id. at 112.
The Adamski court then applied the “significant relationship” approach and noted
there was substantial evidence that Dr. Tsoi was performing an inherent function of the
hospital, “i.e., he was an integral part of the total hospital function or enterprise.” Id.
It concluded that “when one considers all the facts and circumstances of the relationship”
between the hospital and Dr. Tsoi, “a substantial and genuine issue arises as to whether
that relationship is that of principal and agent.” Id. It thus concluded that the trial court
erred in granting summary judgment for the hospital on the issue of Dr. Tsoi’s agency.
Id.
The Adamski court then proceeded to discuss ostensible agency as an alternate
basis of liability, concluding that there was a genuine issue of material fact as to whether
the hospital “held out” Dr. Tsoi as providing emergency care on behalf of the hospital.
Id. at 115-16. It remanded for further proceedings on both grounds of agency liability.
Id. at 117.
Based on our review of Adamski, we disagree that the court adopted a new
“inherent function” test for vicarious liability. Rather, the court discussed inherent
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
function as a factor, among others, in determining whether the parties had a significant
relationship such that respondeat superior liability should apply. See RESTATEMENT
(SECOND) OF AGENCY § 220 (AM. LAW INST. 1958). We find no support for inherent
function as an independent theory for establishing vicarious liability. We conclude the
trial court did not err in rejecting such a theory.
Functional equivalent
In a statement of additional authorities, Essex noted that our Supreme Court
recently recognized that nonemployee physicians are the “functional equivalent” of the
hospital’s employees for purposes of permitting the hospital’s attorney to have ex parte
communication with them. Hermanson v. MultiCare Health Sys., Inc., 196 Wn.2d 578,
589-90, 475 P.3d 484 (2020). There, the divided court noted, “Whether there is
vicarious liability between two defendants is separate from whether such parties may
have ex parte communications with one another under evidentiary privilege.” Id. at 590.
To its credit, Essex noted this distinction, but urges us to adopt a rule based on what we
think our Supreme Court would do should this issue come before it.
We think our Supreme Court would reject imposing vicarious liability based on
the notion of functional equivalency. First, three dissenting justices wanted to preserve
the distinction between the nonemployee physician and the hospital. Hermanson, 196
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
Wn.2d at 594 (Stephens, C.J, concurring in part, dissenting in part). And of the six
justices in the majority, the inclusion of the quoted language shows that some wanted to
preserve the distinction for purposes of imposing vicarious liability.
Also, policy is best affected by the legislature. In re Guardianship of Hamlin,
102 Wn.2d 810, 821-22, 689 P.2d 1372 (1984). This is especially true in areas such as
health care and medical negligence where the legislature has set policy through statutes
and regulations promulgated by legislative authority. See, e.g., Title 70 RCW, chapter
7.70 RCW, Title 246 WAC. It appears our legislature has chosen to limit a hospital’s
vicarious liability to its officers, directors, employees, and agents. See RCW 7.70.020(3)
(for injuries resulting from health care, defining “health care provider” as a nonexclusive
list of entities, including a hospital, together with their “officer[s], director[s],
employee[s], or agent[s]” acting within their scope of employment). We see nothing in
the statutes or regulations that support imposing vicarious liability against a hospital for
nonemployee doctors.
Acting in concert
In its motion for summary judgment, Essex argued that Samaritan was liable for
the negligence of Dr. Davis and Dr. Cruite because they were acting in concert under
RCW 4.22.070(1)(a). In our de novo review of the record, we requested supplemental
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
briefing on whether the common law theory of concerted action was applicable to Dr.
Davis and Dr. Cruite. We conclude it is not.
Concerted action under the common law derives from vicarious liability and
requires that a plaintiff show “a tacit agreement among defendants to perform a tortious
act.” Martin v. Abbott Lab’ys, 102 Wn.2d 581, 596, 689 P.2d 368 (1984). A defendant
can be liable for harm resulting from another person’s tortious act if he “‘gives
substantial assistance to the other in accomplishing a tortious result and his own conduct,
separately considered, constitutes a breach of duty to the third person.’” Id. (quoting
RESTATEMENT (SECOND) OF TORTS § 876(c), at 315 (AM. LAW INST. 1977)). Under this
theory, a defendant need not know that his act or the other’s is tortious. Id. at cmt. e.
RCW 4.22.070(1)(a) provides an exception to Washington’s default proportionate
liability, making a party “responsible for the fault of another person or for payment of the
proportionate share of another party where both were acting in concert . . . .” The
provision was enacted as part of the “Tort Reform Act of 1986.” See LAWS OF 1986,
ch. 305, § 401. We previously discussed the impact of the Tort Reform Act on the
common law theory of concerted action, concluding it intended to restore a “‘strict and
narrow understanding of concerted action.’” Gilbert H. Moen Co. v. Island Steel
Erectors, Inc., 75 Wn. App. 480, 486, 878 P.2d 1246 (1994), rev’d on other grounds,
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
128 Wn.2d 745, 912 P.2d 472 (1996) (quoting Gregory C. Sisk, Interpretation of the
Statutory Modification of Joint and Several Liability: Resisting the Deconstruction of
Tort Reform, 16 U. PUGET SOUND L. REV. 1, at 105 (1992)).
Under this narrow interpretation:
“Cooperation in a lawful enterprise, which results in harm to a third person through negligence, does not rise to the high level of concerted activity. Participation in a legitimate commercial relationship does not constitute acting in concert, even if a third person is harmed by the actions of one of the parties[.]”
Id. (emphasis omitted) (alteration in original) (quoting Sisk, supra at 107). Our Supreme
Court later adopted the Moen court’s analysis and its definition of acting in concert for
the purpose of RCW 4.22.070(1)(a) as “‘consciously act[ing] together in an unlawful
manner.’” Kottler v. State, 136 Wn.2d 437, 448, 963 P.2d 834 (1998) (quoting Moen,
75 Wn. App. at 487).
Here, there is no evidence that Dr. Davis, Dr. Cruite, and Samaritan intended to
act in an unlawful manner. The trial court correctly denied Essex’s motion to hold
Samaritan vicariously liable under RCW 4.22.070(1)(a) for the purported negligence of
Dr. Davis and Dr. Cruite.
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
C. PROXIMATE CAUSE
Essex contends the trial court erred by dismissing various negligence claims for
lack of proximate cause. We agree in part.
On summary judgment, a defendant may demonstrate there is no genuine issue of
material fact for trial by showing that the plaintiff has failed to prove an essential element
of their claim. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). If
the nonmoving party “‘fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of
proof at trial’, then the trial court should grant the motion.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
In a medical malpractice action, a plaintiff must prove “duty, breach, injury, and
proximate cause.” Mohr v. Grantham, 172 Wn.2d 844, 850, 262 P.3d 490 (2011) (citing
RCW 7.70.040). Proximate cause generally requires a showing that the breach of duty
was a cause in fact of the injury and a showing that liability should attach as a matter of
law. Id. We now examine the three negligence claims dismissed by the trial court
following its conclusion that Essex could not establish proximate cause.
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
Corporate negligence claim
Essex contends the trial court erred in dismissing its claim that Samaritan could be
liable for corporate negligence. We disagree.
Essex’s theory of corporate negligence was that Samaritan was required to have
policies in place with respect to recognizing infectious disease, to adequately train its
nurses in those policies, and to have adequate oversight of its nurses engaged in triage.
Dr. Amy Curley identified deficiencies in Samaritan’s policies regarding ongoing
training and identification of infectious diseases and its oversight, opining that nursing
staff should have brought Ms. Essex’s symptoms to Dr. Davis’s attention sooner.
However, Dr. Thomas Cumbo acknowledged that when Dr. Davis evaluated Ms. Essex,
he had all the relevant information. Even with that relevant information, Dr. Davis
diagnosed gastric outlet obstruction, not necrotizing fasciitis.4 Any failure by Samaritan
in regard to its triage policies, training, and oversight did not proximately cause Dr.
Davis’s failure to diagnose necrotizing fasciitis.
4 Indeed, given that Ms. Essex’s symptoms became more severe over time, it seems likely that if Dr. Davis had examined her earlier, he would have been even less likely to diagnose necrotizing fasciitis.
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
Dr. Cumbo also identified the nurses’ failure to notify Dr. Davis that Ms. Essex’s
pain had returned as falling below the standard of care.5 However, he did not link that
failure to any failure in Samaritan’s policies, training, or oversight. To the contrary, he
stated he was sure the nurses had training in what abnormal vital signs were. While this
testimony may establish that the nurses breached their standard of care, it does not
support Essex’s claim of corporate negligence. We conclude the trial court did not err
when it dismissed Essex’s corporate negligence claim.6
Dr. Cruite’s negligence
Essex contends the trial court erred in dismissing its negligence claim against Dr.
Cruite for lack of proximate cause. We agree.
5 Samaritan argued below and argues on appeal that Dr. Davis was aware of how Ms. Essex was responding to pain because he noted she felt better after her first intravenous dose of hydromorphone and the removal of almost two liters of liquid from her stomach. This does not address whether Dr. Davis knew that Ms. Essex’s pain returned to and stayed at a 10 out of 10 while awaiting transport to Wenatchee, despite a second intravenous dose of hydromorphone. Samaritan argued below that Dr. Davis ordered the administration of intravenous hydromorphone because he realized the initial intramuscular hydromorphone did not relieve her pain. This is contradicted by the record. Dr. Davis testified he ordered the administration of an initial intramuscular dose only because an intravenous line had not yet been placed. 6 Samaritan urges us to hold that Washington does not recognize Essex’s theory of corporate negligence. Because we have resolved Essex’s claim on other grounds, we elect not to decide whether Washington recognizes such a theory.
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
Before we discuss the law, we set forth the relevant evidentiary facts. The parties
disputed whether Dr. Cruite’s failure to identify the abnormality in the left chest wall
altered the course of Dr. Davis’s treatment. They focused on deposition testimony from
Dr. Davis.
Q.[7] . . . If the radiologist had said, “Yeah, we’ve got some stuff going on up here in the chest wall, too,” would that have changed your position with regard to how you handled this patient? .... [Dr. Davis]. Hypothetically, I could say that it probably would have. It would not have changed my diagnosis of gastric outlet obstruction because that was still independently and clinically present, but it would have alerted me that there were additional findings that were not consistent with that single diagnosis explaining her entire complaint and it would have prompted me to do other things.
CP at 1053-54. He further testified that he reviewed the CT scan the following morning
after Ms. Essex had been transferred to Central Washington Hospital and diagnosed with
necrotizing fasciitis, and “[i]n hindsight” there was “obvious” inflammation in Ms.
Essex’s chest wall. CP at 2048-49. “That inflammation was also nonspecific, but it was
there.” CP at 2049. He had previously considered necrotizing fasciitis in his differential
diagnosis, but ruled it out in part because all of Ms. Essex’s symptoms were explained by
a gastric outlet obstruction.
7 The speaker is not identified in the excerpt, but from context appears to be Essex’s attorney, William Gilbert.
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
Dr. Kevin Hanson testified that emergency department physicians rely on
radiologists to read CT scans, although they may pull up the scan based on interest. Dr.
Charles Pilcher opined that the standard of care would require an emergency room doctor
to explore abnormalities reported in imaging studies. Had Dr. Cruite reported the soft
tissue abnormalities in Ms. Essex’s chest wall, Ms. Essex’s “course of care would have
been altered” and the necrotizing fasciitis would have been discovered through a surgical
consult. CP at 1748.
Dr. Cumbo testified that the standard of care for a surgical consult for necrotizing
fasciitis is 30 to 60 minutes and debridement should happen as soon as possible and could
have happened at Samaritan.
The parties’ arguments below and on discretionary review have centered on two
Washington cases. We begin by discussing those cases.
In Douglas v. Bussabarger, 73 Wn.2d 476, 477, 438 P.2d 829 (1968), a patient
was harmed by the anesthetic used during surgery and sued the surgeon and the drug
manufacturer. After a jury returned a verdict in favor of the defendants, the patient
appealed, and our Supreme Court affirmed as to the drug company. Id. at 491. It noted
that the patient’s only issue was whether the drug company should have warned of
possible dangers of the drug on its label, but the surgeon testified at trial “that he relied on
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
his own knowledge of anesthetics and, in fact, did not read the labeling which was on the
container.” Id. at 478. The court concluded that even if the drug company was negligent
for failing to warn of dangers on the drug’s label, “this negligence was not a proximate
cause of plaintiff’s disability.” Id.
We followed Douglas in Sherman v. Pfizer, Inc., 8 Wn. App. 2d 686, 698-99, 440
P.3d 1016 (2019), another case involving a drug manufacturer’s failure to warn. There, a
patient developed a movement disorder after taking medication produced by the
defendant drug companies. Id. at 691-92. She brought a products liability claim against
the drug companies, alleging they should have updated their package insert to warn
against extended use of the medication. Id. at 689. The prescribing doctor, however,
testified that he did not read package inserts and had never read a package insert for the
medication. Id. at 693. The court reasoned that the patient had introduced no evidence to
create a genuine issue of material fact regarding whether the doctor had read the package
inserts and thus, as a matter of law, the failure to update the inserts could not have
proximately caused the patient’s harm. Id. at 699.
The principle identified in Douglas and Sherman relates to the basic and
longstanding “but for” test of cause in fact. The patients were required to prove that they
would not have been harmed by the medication but for the failure to warn. They could
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
not do so because the doctors would have used the medications regardless of inadequate
warnings. The “but for” test is applicable in most cases, including most medical
malpractice cases.8 Dunnington v. Virginia Mason Med. Ctr., 187 Wn.2d 629, 636, 389
P.3d 498 (2017). Thus, had Dr. Davis testified he would not have considered necrotizing
fasciitis even had Dr. Cruite reported inflammation in Ms. Essex’s chest wall, this would
break the causal chain between Dr. Cruite’s failure to report the existing inflammation
and Ms. Essex’s harm.
As identified by the Sherman court, Essex had to establish that Dr. Davis, himself,
would have considered necrotizing fasciitis had Dr. Cruite reported the existing
inflammation.9 Dr. Davis testified that had the CT results disclosed the existing
8 Essex argues these cases are not applicable outside the drug manufacturer failure to warn context, contending that the Sherman court “expressly based its discussion of proximate cause on the learned intermediary doctrine.” Pet’rs’ Reply Br. at 33. This is incorrect. The Sherman court based its discussion of duty on the learned intermediary doctrine. 8 Wn. App. 2d at 695. The learned intermediary doctrine defines a drug manufacturer’s duty to warn, limiting it to the prescribing doctor rather than the end user. Dearinger v. Eli Lilly & Co., 199 Wn.2d 569, 574, 510 P.3d 326 (2022). It does not alter the rules of causation; rather, it “has bearing only on who a manufacturer must warn.” Id. at 585 (emphasis omitted). 9 The parties disagree on whether expert testimony on this subject is relevant. Because this issue is likely to arise at trial, we offer the following comments. One may presume that Dr. Davis, a trained emergency room doctor, would act in a reasonably prudent manner. As long as the trier of fact understands that expert testimony on this subject is being admitted for the limited purpose of showing what Dr. Davis would have done, it is relevant and admissible, subject to an ER 403 analysis by the trial court.
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
inflammation in the chest wall, he would have investigated further because his diagnosis
of gastric outlet obstruction would not explain the inflammation.10 He did not testify he
would have correctly diagnosed necrotizing fasciitis had Dr. Cruite reported
inflammation, but this is not fatal to Essex’s claim. But Dr. Pilcher testified that Dr.
Davis more likely than not would have diagnosed necrotizing fasciitis had Dr. Cruite
reported the existing inflammation. This testimony achieves the same purpose.
Still, Essex must establish more to present a triable issue that Dr. Cruite’s
negligence proximately caused harm. In addition to evidence that Dr. Davis likely would
have diagnosed necrotizing fasciitis, Essex also must establish that a surgeon was likely
available to timely operate on Ms. Essex. Essex satisfied this burden. Dr. Cumbo
testified that a surgical consult would likely have been available between 30 and 60
minutes and could have happened at Samaritan. This is sufficient to establish a prima
facie case of proximate cause.
10 Dr. Cruite argues at length that Dr. Davis unequivocally testified he would not have changed his diagnosis. The relevant inquiry is not whether Dr. Davis would have changed his diagnosis of gastric outlet obstruction, but rather whether he would have additionally diagnosed necrotizing fasciitis.
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
The crucial distinction between this case and Douglas and Sherman is that there,
the doctors’ testimony cut off the chain of causation and so the drug companies’ failure to
warn was not a cause in fact of the patients’ injuries. Here, viewing the facts in the light
most favorable to Essex, Dr. Davis would have continued investigating Ms. Essex’s
symptoms, diagnosed necrotizing fasciitis, and initiated successful surgery but for Dr.
Cruite’s alleged failure to identify inflammation in the CT scan. We conclude the trial
court erred in dismissing Essex’s negligence claim against Dr. Cruite.
Samaritan’s liability for its nurses
Essex contends the trial court erred in dismissing its negligence claim against
Samaritan’s nurses for lack of proximate cause. We agree.
As discussed above, in relation to corporate negligence, Essex could not prove that
any breach of the standard of care on the part of the nurses before Dr. Davis’s diagnosis
of gastric outlet obstruction proximately caused Ms. Essex’s death. However, Dr. Cumbo
also identified as a breach of the standard of care the nurses’ failure to inform Dr. Davis
that Ms. Essex’s pain returned while she waited for transfer. Dr. Pilcher stated that based
on Ms. Essex’s changes after 7:00 p.m., the standard of care required a doctor to reassess
her and that a physical exam and reassessment after 7:00 p.m. would have identified
necrotizing fasciitis. Dr. Davis himself testified he would have continued trying to
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No. 37804-7-III; No. 37994-9-III Estate of Essex v. Grant County Pub. Hosp. Dist. No. 1
diagnose Ms. Essex’s condition if he was aware she had symptoms not entirely explained
by gastric outlet obstruction.
Samaritan argued at summary judgment that it was unrefuted that Dr. Davis had all
the information the nurses had. This is not so. As noted above, Dr. Davis was aware that
Ms. Essex’s pain was not immediately relieved by painkillers and that she improved after
additional medication and stomach decompression. But this does not answer whether he
knew her pain returned to 10 out of 10 while awaiting transport. Although the nurses
charted Ms. Essex’s vital signs and symptoms, there is no evidence that Dr. Davis
referred to her chart contemporaneously such that he was aware of her deteriorating
condition while awaiting transport. This creates a genuine issue of material fact as to
whether Dr. Davis had all the information the nurses had. Had Dr. Davis known of the
existing inflammation and the return of Ms. Essex’s horrendous pain following
decompression, this would have presented another opportunity for the doctor “to do other
things.” CP at 1054. We conclude the trial court erred in dismissing Essex’s negligence
claim against Samaritan’s nurses.
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No. 37804-7-III; No. 37994-9-III Estate ofEssex v. Grant County Pub. Hosp. Dist. No. 1
Affirmed in part, reversed in part.
Lawrence-Berrey, A.C
WE CONCUR:
Pennell, J.
Staab, J.