John & Jane Doe, Appellant's v. Phillip J. Zylstra, M.d.

• Court: Court of Appeals of Washington
• Decided: February 9, 2015
• Docket: 71123-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

JOHN DOE, a single man; and JANE No. 71123-7-1 DOE, a single woman,

Appellants,

PHILLIP J. 2YLSTRA, M.D. and BARBARA ZYLSTRA, husband and wife, and the marital community composed thereof; MARK SPENCER, M.D. and CYNTHIA SPENCER, husband and wife and the marital community composed thereof; VERNON HALL, M.D. a single man; UNPUBLISHED OPINION GLEN ISHAM; ANN DOE; TANYA DOE; SHERRI DOE; CORRIN DOE; FILED: February 9, 2015 KIM DOE; and SHAYNI DOE,

Respondents.

Verellen, J. — Appellants must support their assignments of error with authority,

argument, and citation to the record. Here, John Doe and Jane Doe, former husband

and wife, appeal from a summary judgment order dismissing their claims against

several medical-clinic employees.1 The Does principally contend that the employees

1The clinic's employees include Dr. Phillip Zylstra, Dr. Vernon Hall, Dr. Mark Spencer, physician assistant Anne Doe, medical assistant Shayni Doe, registered nurse Sherri Doe, office manager Corrin Doe, referral coordinator Tonya Doe, and receptionist Kim Doe. Our references to "employees" do not include Glen Isham, a former medical assistant at the clinic. No. 71123-7-1/2

owed the Does a legal duty of care to protect them from a medical assistant's intentional

conduct. Because a patient must be vulnerable to create a special relationship, and

because a special relationship is required to establish a legal duty of care in this

context, the employees did not owe the Does a legal duty of care. The Does also fail to

support any of their claims with citations to compelling authority or meaningful legal

analysis. Accordingly, we affirm.

FACTS

The Does received medical care and treatment at a medical clinic. In July 2007,

the clinic hired Glen Isham as a medical assistant. The Department of Health (DOH)

approved Isham's application and issued him a medical assistant certification.2 Isham's

job duties included escorting Jane Doe into an examination room, taking her vital signs,

and documenting any medical complaints.

In February 2009, Isham and Jane Doe began a consensual sexual relationship.

The Does separated on March 16, 2009. In June 2009, Isham moved in with Jane Doe.

Isham voluntarily left the clinic in September 2009. The Does divorced in February

2010. Isham and Jane Doe married in September 2010.3

The Does sued Isham and the employees, but not the clinic, under various

theories. The trial court entered summary judgment for the employees.4

The Does appeal.

2 Isham's medical assistant application to DOH lists Dr. Zylstra as his delegator. DOH conducted a criminal background check on Isham for his medical assistant application, and no criminal record was reported. 3 Isham and Jane Doe subsequently divorced in 2013. 4 The Does proceeded to trial against Isham. Isham did not appear at trial and the trial court entered judgment for the Does in the amount of $1,019,800. No. 71123-7-1/3

ANALYSIS

Appellants must support their assignments of error with argument and pertinent

authority.5 We generally will not consider issues that do not comply with this

requirement.6 Here, the Does fail to support any of the issues raised in their briefs with

compelling authority or meaningful legal analysis.

We review a summary judgment order de novo and view "the facts and the

reasonable inferences from those facts in the light most favorable to the nonmoving

party."7 Summary judgment is proper where there are no genuine issues of material

fact.8 "A material fact is one that affects the outcome of the litigation."9 "Legal duty is a

question of law which we review de novo."10

5 RAP 10.3(a)(6) ("The [brief should contain] argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record."); Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989); In re Marriage of Arvev. 77 Wn. App. 817, 819 n.1, 894 P.2d 1346 (1995). 6 McKee v. Am. Home Products. Corp.. 113 Wn.2d 701, 705, 782 P.2d 1045 (1989) ("We will not consider issues on appeal that are not raised by an assignment of error or are not supported by argument and citation of authority."); Saviano v. Westport Amusements, Inc., 144 Wn. App. 72, 84, 180 P.3d 874 (2008) ("We do not address issues that a party neither raises appropriately nor discusses meaningfully with citations to authority."); King County v. Seawest Inv. Assocs.. LLC, 141 Wn. App. 304, 317, 170 P.3d 53 (2007) ("We will not consider an issue absent argument and citation to legal authority."). 7 Michak v. Transnation Title Ins. Co.. 148 Wn.2d 788, 794, 64 P.3d 22 (2003). The Does contend that the trial court did not apply the proper summary judgment standard because it concluded that the Does' experts' opinions "do not really affect the court's decision here; and the court and appellate court can take portions of the declarations with a grain of salt." CP at 141-42. Because our review is de novo, the Does' contention provides no basis for any relief on appeal. 8 CR 56(c). 9 Owen v. Burlington N. & Santa Fe R.R. Co.. 153 Wn.2d 780, 789, 108 P.3d 1220(2005). 10 Webb v. Neuroeducation Inc.. P.C.. 121 Wn. App. 336, 346, 88 P.3d 417 (2004). No. 71123-7-1/4

The Does challenge the trial court's dismissal of their medical negligence claim

on summary judgment. The Does contend that the employees' conduct fell below the

standard of care expected of a reasonably prudent health care provider. We disagree.

Because the Does do not provide any compelling authority or meaningful legal analysis

that the employees owed a duty to protect them from Isham's intentional misconduct,

their medical negligence claim fails.

A medical negligence claim requires "'duty, breach, causation, and damages.'"11

Washington cases addressing sexual misconduct in a health care setting hold that the

duty of a medical clinic, or its employees, to protect patients from a third party's

intentional conduct requires a special relationship with the patient.12 A special

relationship exists ifthe patient is "vulnerable, profoundly disabled, or unable to protect

herself."13 Here, the Does do not cite any of these cases and do not argue that a

special relationship arose. A patient seeking medical care at a clinic does not, by itself,

establish a special relationship required to establish a legal duty of care.14

11 Rounds v. Nellcor Puritan Bennett, Inc., 147 Wn. App. 155, 162, 194 P.3d 274 (2008) (Quoting Colwell v. Holy Family Hosp.. 104 Wn. App. 606, 611, 15P.3d210 (2001)). 12 See, e.g., Niece v. Elmview Grp. Home, 131 Wn.2d 39, 43, 929 P.2d 420 (1997) ("'[T]here is no duty to prevent a third party from intentionally harming another unless 'a special relationship exists between the defendant and either the third party or the foreseeable victim of the third party's conduct.'" (internal quotation marks omitted) (Quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 227, 802 P.2d 1360 (1991)); Kaltreider v. Lake Chelan Cmtv. Hosp., 153 Wn. App. 762, 765-66, 224 P.3d 808 (2009); Smith v. Sacred Heart Med. Ctr.. 144 Wn. App. 537, 545, 184 P.3d 646 (2008). 13 Smith, 144 Wn. App. at 545. 14 See Niece, 131 Wn.2d at 43-44; Kaltreider, 153 Wn. App. at 765; Smith, 144 Wn. App. at 545. No. 71123-7-1/5

Additionally, even assuming that the employees owed a special duty to protect

the Does, that duty "is limited by the concept of foreseeability."15 The "sexual

misconduct and resulting harm must be 'reasonably foreseeable,' and the foreseeability

must be based on more than speculation or conjecture."16 An employee's sexual

misconduct may be foreseeable if there have been similar prior incidents at the clinic or

prior acts by the employee.17 Absent such evidence, the Does fail to establish that

Isham's sexual misconduct was foreseeable.

Two cases are particularly instructive. First, in Kaltreider v. Lake Chelan

Community Hospital, a patient voluntarily engaged in sexual relations with a nurse on

hospital property.18 The patient sued the hospital, alleging that the hospital owed her a

duty of protection from sexual misconduct. Kaltreider held that the hospital "did not

have a duty to protect" her against a third party's actions because the patient "was not a

vulnerable adult."19 The hospital did "'not have a duty to guard against the possibility

that one of its employees may be an [undisclosed] sexual predator'" because the

nurse's actions were unforeseeable.20 Second, in Smith, a nursing assistant hugged

and kissed two patients on several occasions at a hospital. The patients later

voluntarily engaged in sexual relations with the nursing assistant offthe premises after

the patients had been discharged and after the nursing assistant had left his

15 Smith, 144 Wn. App at 546; Kaltreider, 153 Wn. App. at 766-67. 16 Kaltreider, 153 Wn. App. at 766-67 (quoting Smith, 144 Wn. App. at 546). 17 ]Q\ at 767. 18 153 Wn. App. 762, 224 P.3d 808 (2009). 19 ig\ at 766. 20 jd, at 767 (alteration in original) (internal quotation marks omitted) (quoting Smith, 144 Wn. App. at 546). No. 71123-7-1/6

employment. The patients sued the hospital, alleging that the hospital owed them a

duty of protection and that while at the hospital, the nursing assistant "laid the

groundwork" for the sexual encounters.21 Smith held that the hospital did not owe a

duty to protect because the patients were not vulnerable and consensually engaged in

sexual relations with the nursing assistant both on and off the hospital's property.22

Here, consistent with Kaltreider and Smith, Jane Doe was not a vulnerable

patient. No evidence in the record suggests that Jane Doe was "vulnerable, profoundly

disabled, or unable to protect herself."23 As in Smith, the consensual sexual activity

occurred off the clinic's property. Importantly, the Does cite no authority that a medical

clinic's employees have a duty to prevent or protect a nonvulnerable patient from

engaging in consensual sexual relations with a medical assistant off the clinic's

property. As in Kaltreider. no evidence in the record suggests that the employees had

knowledge of prior sexual misconduct at the clinic or by Isham.24 Therefore, the Does

fail to establish the employees owed a legal duty of care to protect them from Isham's

intentional misconduct.

Further, without citing any authority, the Does contend that Isham groomed Jane

Doe for a sexual relationship by engaging in inappropriate communications,

inappropriate touching, and extended visits at the clinic. But their contention is

equivalent to the hugging and kissing in Smith. Smith rejected the claim that a legal

21 Smith. 144 Wn. App. at 546. 22 Id, at 545-46. 23 jd, at 545. 24 Kaltreider, 153 Wn. App. at 767. No. 71123-7-1/7

duty of care extends to a hospital's employees because the "groundwork" for the sexual

encounters occurred at the hospital.25 Therefore, the Does' grooming theory fails.

The Does contend that under state regulations, the employees owed them a

legal duty of care to report Isham's sexual relationship with Jane Doe to DOH. We

disagree. The Does cite no authority that any administrative regulations create a legal

duty of care owed to them by the employees. WAC 246-16-100 merely precludes a

health care provider from engaging in sexual misconduct with a patient, and WAC 246-

16-235 establishes mandatory reporting for license holders in certain circumstances.

But the duty to report is limited to a license holder's "actual knowledge" of "[a]ny

conviction, determination, or finding that another license holder has committed an act

that constitutes unprofessional conduct."26 A "'[cjonviction' means a court has decided

a person is guilty of any gross misdemeanor or felony."27 A "'[determination or finding'

means a final decision by an entity required or requested to report" under the

Washington Administrative Code.28 Here, no conviction, determination, or finding

triggered a duty to report.

The Does also contend that Isham's longer than usual intake sessions with Jane

Doe triggered a duty to report. But that evidence does not constitute a "conviction,"

"determination," or "finding" under the Washington Administrative Code. And while the

Does' experts discuss a health care provider's ethical obligations, the Does provide no

25 Smith, 144 Wn. App. at 546. 26 WAC 246-16-235(1 )(a). 27 WAC 246-16-210(2). 28 WAC 246-16-210(3). No. 71123-7-1/8

authority that a legal duty to report Isham's unprofessional conduct arose. Thus, their

duty to report claim fails.

The Does generally contend that the employees negligently supervised Isham.

We disagree. The Does did not sue the employer. The Does neither cite authority nor

provide meaningful legal analysis that a negligent supervision claim lies against

employees.29 The Does cite no authority that an actionable duty arises because a

physician is a medical assistant's delegator. No evidence in the record suggests that

the employees had prior knowledge of Isham's sexual misconduct or that Isham

"presented a risk of harm" to patients.30 Therefore, the Does do not establish any

genuine issue of material fact regarding an alleged duty of the employees to supervise.

The Does suggest in passing that the employees negligently hired Isham who the

employees knew, or should have known, was unfit to work with patients. We disagree.

The Does did not sue the employer, and they cite no authority that the employees are

liable for negligently hiring Isham.31 Further, the employees verified Isham's medical

assistant license, interviewed him, and checked his references. DOH reported no

29 Washington courts uniformly hold that employers—not employees—may be liable for negligently supervising an employee. Niece, 131 Wn.2d at 48-49 ("An employer is not liable for negligent supervision of an employee unless the employer knew, or in the exercise of reasonable care should have known, that the employee presented a risk of danger to others." (emphasis added)); Smith, 144 Wn. App. at 544; Briggs v. Nova Servs.. 135 Wn. App. 955, 966, 147 P.3d 616 (2006) ("'An employer can be liable for negligently supervising an employee.'" (emphasis added) (quoting Herried v. Pierce County Pub. Transp. Benefit Auth. Corp., 90 Wn. App. 468, 475, 957 P.2d 767 (1998))). 30 Briggs, 135 Wn. App. at 967. 31 Washington courts also uniformly hold that employers—not employees—may be liable for negligently hiring an employee. See, e.g., Haubrv v. Snow. 106 Wn. App. 666, 679, 31 P.3d 1186 (2001); Lester v. Town of Winthrop, 87 Wn. App. 17, 26, 939 P.2d 1237(1997).

8 No. 71123-7-1/9

criminal history. No evidence in the record suggests that the employees, at the time of

hiring, knew or in the exercise of ordinary care should have known that Isham was unfit

for employment as a medical assistant or likely to cause harm. Therefore, the Does'

negligent hiring claim fails.

As to the Does' remaining claims, the Does provide no pertinent authority,

argument, or citation to the record to support them. Therefore, we decline to address

them.32

We affirm.

WE CONCUR:

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32 See, e.g., Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (stating that claims not supported by reference to the record or citation to authority are not considered on appeal); McKee, 113 Wn.2d at 705.