Filed Washington State Court of Appeals Division Two
August 10, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MATTHEW MENZER, as Litigation Guardian No. 53972-1-II Ad Litem of KJM, a minor,
Appellant,
v.
CATHOLIC HEALTH INITIATIVES, a UNPUBLISHED OPINION foreign corporation; FRANCISCAN HEALTH SYSTEM, a Washington corporation; and SAINT JOSEPH MEDICAL CENTER,
Respondents.
SUTTON, J. — Matthew Menzer, as litigation guardian ad litem for KJM, a minor, sued
Catholic Health Initiatives (CHI), Franciscan Health System (FHS), and Saint Joseph Medical
Center (St. Joseph). CHI is the parent corporation of FHS and FHS owns St. Joseph. KJM alleged
that CHI failed to adopt specific procedures requiring FHS and St. Joseph to screen newborns for
a rare genetic disorder that KJM was later diagnosed with after his birth at St. Joseph. At the time
of his birth, the Department of Health did not mandate this newborn screening test in acute care
hospitals in Washington State although other states did.
KJM claims that CHI, a corporate entity, owed him a duty because it directed health care
decisions regarding his care and it directed health care decisions to its subsidiaries in other states’
hospitals throughout the United States. KJM argues that CHI meets the definition of a Washington
“health care provider” because it employed one licensed doctor in Washington. KJM argues that No. 53972-1-II
CHI can be sued for damages for injuries to KJM occurring as a result of health care under chapter
7.70 RCW. Alternatively, if CHI is not a health care provider, KJM argues that we should expand
RCW 7.70.020’s definition of health care provider to include “persons engaged in the healing
arts,” which would then include CHI. KJM also argues that CHI, as a principal, is vicariously
liable for FHS’s and St. Joseph’s actions based on their apparent authority to act for CHI. Thus,
KJM argues that the superior court erred by granting summary judgment dismissal to CHI.
We hold that because CHI is not a health care provider under RCW 7.70.020, CHI does
not owe a duty to KJM and even assuming a duty is owed, KJM fails to prove causation as a matter
of law, and no duty exists under common law. We decline to expand the definition of health care
provider and we hold that CHI is not vicariously liable for FHS or St. Joseph. We also decline
KJM’s invitation to apply Washington’s definition of health care provider in a way that assumes
CHI directed health care decisions in this matter as KJM provided no evidence that was the case.
We affirm.
FACTS
I. BACKGROUND
A. CHI, FHS, AND ST. JOSEPH
CHI is a nonprofit parent corporation formed in 1996 and incorporated in Colorado. CHI’s
purpose is to “promote and support, directly or indirectly, by donation, loan, or otherwise, the
interests and purposes” of its “sponsored organizations.” Clerk’s Papers (CP) at 109-10. By 2005,
CHI was the parent corporation of several subsidiary corporations that independently owned and
operated hospitals in other states.
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CHI describes itself as a “national health care institution.” CP at 50. CHI’s mission, “[a]s
one of the nation’s largest nonprofit health care systems,” is to “go beyond the provision of quality
health care to help protect the vulnerable; to encourage participation in the political process; and
to safeguard the environment.” CP at 278. CHI has 64 hospital facilities and 50 long-term care
and residential-care facilities in 19 states.
FHS was formed in 1981. CHI was created when FHS and two other Catholic health care
systems merged, but they continued to exist as separate subsidiary corporations. FHS owns and
operates St. Joseph. The FHS Board of Directors was the governing body for St. Joseph. FHS
was responsible for appointing medical staff, approving clinical privileges for medical staff,
ensuring St. Joseph and its staff carried out peer review activities and other quality assurance
activities in accordance with RCW 70.41.200, approving contracts with physicians to perform
specific activities, and providing general oversight and supervision of the hospital.
In August 2005, when KJM was born, no person employed by CHI had been granted
privileges as a member of St. Joseph’s medical staff. In August 2005, the corporate operations of
CHI and FHS were separate and distinct. Both St. Joseph and FHS were subject to oversight by
the CHI Board of Directors, including subject to the approval of or removal by CHI.
CHI “did not have any involvement in the clinical decision-making or treatment of patients
at St. Joseph.” CP at 102. When KJM was born at St. Joseph in August 2005, CHI employed 46
people who “[had] an office, workspace, or were otherwise associated with working in Washington
State.” CP at 103.
Of the CHI employees who were associated with working in Washington State, Dr.
Gregory Semerdjian was the only one who was “a licensed health care provider.” CP at 103. Dr.
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Semerdjian was CHI’s Vice President of Medical Operations, a member of the Clinical Services
Group, and a member of CHI’s Physician Leadership Council. He attended the 2004 Genetics
Advisory Summit and the 2005 meeting of the Genetics Advisory Committee. Dr. Semerdjian did
not provide health care services to KJM. Dr. Semerdjian has not practiced clinical medicine since
1991. Dr. Semerdjian was employed as a remote Vice President of Medical Operations to work
with rural hospitals in North Dakota, Minnesota, Kansas, and Kentucky, not in Washington State.
He did reside in Tacoma, Washington, but his work required him to travel out of state to the
facilities CHI assigned him. He had a cubicle in an office space owned by FHS, but he did not
work with any FHS facilities, or work at St. Joseph, and had no role related to making health care
decisions about KJM.
B. SUPPLEMENTAL NEWBORN SCREENING AND KJM’S BIRTH
In August 2005, KJM was born at St. Joseph in Tacoma. At that time, St. Joseph did not
include a newborn screening test for Glutaric Acidemia type 1 (GA-1) in its supplemental newborn
screening (SNS) panel. The pediatrician who attended to KJM at St. Joseph was not named in the
lawsuit, but could have ordered individual genetic testing if necessary. No other acute care
hospitals licensed in Washington State offered the test at that time. The Department of Health
required acute care hospitals in the state to conduct newborn screening for nine genetic disorders
in August 2005, but did not mandate newborn screening for metabolic disorders such as GA-1.
KJM was diagnosed with GA-1 when he was 11 months old. By the time he was diagnosed,
KJM had developed brain damage due to GA-1. KJM’s mother said she would have gotten the
additional screening test at St. Joseph if it had been offered.
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Prior to KJM’s birth, other states1 had mandated testing for GA-1 in the SNS panel. In
2005, hospitals in Colorado and Pennsylvania voluntarily included the GA-1 test in their SNS
panel despite it not being mandatory in those states.
KJM’s mother noticed the CHI logo on the admission paperwork she filled out upon
arriving at St. Joseph to give birth, which was “important” to her.
C. CHI’S KNOWLEDGE OF SNS
Dr. John Anderson, CHI’s Chief Medical Officer from 2004 to 2008, explained that CHI’s
Clinical Services Group did not have a pediatrician because CHI did not include a children’s
hospital; the hospitals in its subsidiaries provided adult care. CHI provided best practice resources
in the form of “practice bundles” to its subsidiaries. “Practice bundles” include all of the resources
that would be necessary to implement a practice change, but they do not mandate a particular
course of testing or treatment.2 Dr. Anderson explained that SNS was not a priority at that time.
CHI did not provide a practice bundle to its subsidiaries relating to SNS. Baylor University’s
Institute for Metabolic Disease, the institution Anderson previously worked at, ensured that all of
its hospitals offered SNS before any state mandate.
1 These states include: Iowa, Minnesota, Oregon, Idaho, Maryland, Nebraska, North Dakota, Ohio, Missouri, and South Dakota. 2 Wash. Court of Appeals, Div. II oral argument, Matthew Menzer as Litigation Guardian ad Litem of KJM v. Catholic Health Initiatives, No. 53972-1-II (May 20, 2021), at 12 min., 41 sec. through 14 min., 44 sec. (on file with court). KJM has not pointed to any evidence in this record that contradicts this explanation of practice bundles, nor has KJM provided evidence in this record to contradict the assertion that a practice bundle does not mandate particular testing or treatment.
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II. PROCEDURE
In March 2017, KJM filed a negligence suit against FHS d/b/a/ St. Joseph for alleged
negligence in August 2005, and it alleged that FHS owned and operated St. Joseph. Later, KJM
amended his complaint to allege that CHI owed an independent duty to KJM for its failure to
conduct SNS tests that he alleged would have detected GA-1 and for its failure to inform KJM’s
parents of the material facts relating to KJM’s care and treatment. CHI denied that it employed or
credentialed medical providers at St. Joseph and denied it owed a duty to KJM.
CHI moved for summary judgment dismissal of KJM’s claims against it because it did not
employ or credential any licensed health care provider at St. Joseph—who allegedly caused
damages to KJM. CHI argued that (1) CHI was not a health care provider as defined in RCW
7.70.020, nor was any employee of CHI involved in KJM’s care and treatment, (2) no common
law duty exists, and (3) CHI was not vicariously liable for FHS or St. Joseph under the corporate
medical negligence doctrine.
KJM argued in response that CHI is a health care provider under Washington law that owes
a duty to the participants in its system because CHI was “registered to do business in Washington
as a corporation whose purpose was to ‘provide, conduct, and administer health care and related
services,’ in Washington.” CP at 251 (boldface type omitted). KJM also argued that CHI had a
common-law duty to patients of its health care system and CHI had voluntarily assumed a duty
owed to KJM. In opposition to CHI’s motion for summary judgment KJM filed the declaration of
its expert, Dr. Leslie Selbovitz. She was the Chief Medical Officer and Senior Vice President for
Medical Affairs at Milford Regional Medical Center in Milford, Massachusetts. She stated that
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“KJM was not diagnosed until after he was approximately 11[ ]months old which was too late, as
by then he had suffered brain damage.” CP at 675.
The superior court ruled that CHI did not owe KJM a duty under RCW 7.70.030 because
CHI was not a health care provider as defined in RCW 7.70.020. KJM filed a motion for
reconsideration which the superior court denied. In its order denying KJM’s motion for
reconsideration, the superior court reiterated its ruling on summary judgment regarding CHI:
It is not enough to allege CHI was negligent. It is fundamental that an action for negligence does not lie unless the defendant owes a duty . . . to [the] plaintiff. McCluskey v. Handorff-Sherman, 125 Wn.2d 1, 6, 882 P.2d 157 [] (1994). [KJM] has failed to articulate why CHI had a duty to [KJM] here.
CP at 1490.
KJM appeals the superior court’s orders granting summary judgment and denying
reconsideration, the final judgment of dismissal of CHI with prejudice, the order dismissing the
remaining defendants,3 and the order striking the trial date.
ANALYSIS
I. SUMMARY JUDGMENT STANDARD
“The standard of review of a summary judgment dismissal is de novo.” Collins v. Juergens
Chiropractic, PLLC, 13 Wn. App. 2d 782, 792, 467 P.3d 126 (2020). “We review all evidence
and reasonable inferences in the light most favorable to the nonmoving party.” Collins, 13 Wn.
App. 2d at 792. “We may affirm an order granting summary judgment if there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law.” CR 56(c);
3 KJM voluntarily dismissed his claims without prejudice against FHS and St. Joseph pursuant to CR 41(a)(1)(A).
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Collins, 13 Wn. App. 2d at 792. “A genuine issue of material fact exists where reasonable minds
could differ on the facts controlling the outcome of the litigation.” Collins, 13 Wn. App. 2d at
792.
“The party moving for summary judgment has the initial burden to show there is no genuine
issue of material fact.” Collins, 13 Wn. App. 2d at 792. “A moving defendant can meet this burden
by showing that there is an absence of evidence to support the plaintiff’s claim.” Collins, 13 Wn.
App. 2d at 792. “Once the defendant has made such a showing, the burden shifts to the plaintiff .
. . to present specific facts that show a genuine issue of material fact.” Collins, 13 Wn. App. 2d at
792. “Summary judgment is appropriate if a plaintiff fails to show sufficient evidence to create a
question of fact regarding an essential element on which he or she will have the burden of proof at
trial.” Collins, 13 Wn. App. 2d at 792.
II. NO DUTY OWED TO KJM
KJM argues that CHI qualifies as a health care provider under RCW 7.70.020 because it
employs Dr. Semerdjian, a physician licensed in Washington. KJM argues that CHI, as a health
care provider, owed him a duty to act reasonably because it is a corporate health system with
superior knowledge, resources, and control over the local hospital, St. Joseph, where KJM received
care. We disagree. We hold that CHI is not a health care provider as defined in RCW 7.70.020.
We further hold that CHI had no employment relationships with any licensed health care providers
who did make health care decisions regarding KJM at St. Joseph, particularly related to what
screening tests for newborns were required to be given in August 2005, and thus, CHI did not owe
KJM a duty.
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A. LEGAL PRINCIPLES
1. Statutory Interpretation
We review questions of statutory interpretation de novo. Jametsky v. Olsen, 179 Wn.2d
756, 761, 317 P.3d 1003 (2014). Our goal when interpreting a statute is to “ascertain and carry
out the legislature’s intent.” Jametsky, 179 Wn.2d at 762. We give effect to the plain meaning of
the statute as “derived from the context of the entire act as well as any ‘related statutes which
disclose legislative intent about the provision in question.’” Jametsky, 179 Wn.2d at 762 (quoting
Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). If a statute’s
meaning is plain on its face, we give effect to that meaning as an expression of legislative intent.
Blomstrom v. Tripp, 189 Wn.2d 379, 390, 402 P.3d 831 (2017).
2. Duty under Chapter 7.70 RCW
To prevail in a negligence claim, a plaintiff must establish “duty, breach, and resultant
injury; and the breach of duty must also be shown to be the proximate cause of the injury.” Hartley
v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). To prove proximate cause, a plaintiff must
prove cause in fact and legal causation. Hartley, 103 Wn.2d at 777.
Our supreme court has held, “‘[W]henever an injury occurs as a result of health care, the
action for damages for that injury is governed exclusively by RCW 7.70.’” Fast v. Kennewick
Pub. Hosp. Dist., 187 Wn.2d 27, 34, 384 P.3d 232 (2016) (alteration in original) (quoting Branom
v. State, 94 Wn. App. 964, 969, 974 P.2d 335 (1999)).
Under RCW 7.70.030(1), a plaintiff can only recover damages from a health care related
injury if he or she can prove that the “injury resulted from the failure of a health care provider to
follow the accepted standard of care.” Actions under chapter 7.70 RCW are all predicated on an
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act or omission of a health care provider. Thus, under Fast, chapter RCW 7.70 is KJM’s exclusive
remedy for alleged damages regarding his birth at St. Joseph and the alleged failure to provide
genetic testing in August 2005. 187 Wn.2d at 34. There is no remedy at common law for KJM’s
injuries.
To determine when chapter 7.70 applies, Washington courts look to the definition of
“health care provider” under RCW 7.70.020 which is defined as either:
(1) A person licensed by this state to provide health care or related services including, but not limited to, an acupuncturist or acupuncture and Eastern medicine practitioner, a physician, osteopathic physician, dentist, nurse, optometrist, podiatric physician and surgeon, chiropractor, physical therapist, psychologist, pharmacist, optician, physician assistant, midwife, osteopathic physician’s assistant, nurse practitioner, or physician’s trained mobile intensive care paramedic, including, in the event such person is deceased, his or her estate or personal representative;
(2) An employee or agent of a person described in part (1) above, acting in the course and scope of his [or her] employment, including, in the event such employee or agent is deceased, his or her estate or personal representative; or
(3) An entity, whether or not incorporated, facility, or institution employing one or more persons described in part (1) above, including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, employee, or agent thereof acting in the course and scope of his or her employment, including in the event such officer, director, employee, or agent is deceased, his or her estate or personal representative.
(Emphasis added.)
“Health care” is defined as:
“[T]he process in which [the physician] was utilizing the skills which he had been taught in examining, diagnosing, treating or caring for the plaintiff as his patient.”
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Reagan v Newton, 7 Wn. App. 2d 781, 791, 436 P.3d 411 (2019), review denied, 193 Wn.2d 1030
(2019) (alterations in original) (internal quotation marks omitted) (quoting Beggs v. Dep’t of Soc.
& Health Servs., 171 Wn.2d 69, 79, 247 P.3d 421 (2011)).
The question of who is a health care provider under RCW 7.70.020 determines whether a
person or entity owes a duty to a patient under chapter 7.70 RCW. The statutory definition of
“health care provider” includes persons “licensed by this state to provide health care or related
services” and their employers. RCW 7.70.020(1), (3).
B. CHI DOES NOT MEET THE DEFINITION OF “HEALTH CARE PROVIDER” UNDER RCW 7.70.020
KJM argues that CHI should be considered a “health care provider” under RCW
7.70.020(3) because it employs one physician licensed in Washington, Dr. Semerdjian. KJM also
argues that there was a “nexus” between Dr. Semerdjian’s activities and KJM’s alleged injuries
and Dr. Semerdjian “was directly involved in the CHI conduct that caused injury to KJM.” Br. of
Appellant at 36-37. The record in this case does not support this assertion. We hold that under
the plain language of RCW 7.70.020, CHI does not meet the definition of a health care provider
as correctly determined by the superior court.
Under a plain language analysis, “health care provider” is defined as persons “licensed by
this state to provide health care or related services,” and their employers. RCW 7.70.020(1), (3).
Employing a person who is licensed in Washington State, does not bring that entity, here CHI,
under the definition of health care provider where the employee is not actively engaged in
providing health care or related services in Washington State. To the extent that the plain language
of the definition reaches Dr. Semerdjian under the plain language of the statute, CHI’s
corresponding duty is limited to its role as an employer. He was not providing health care to any
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patients in Washington, he had not provided direct care to patients in Washington since 1991, and
CHI employed no person who was providing healthcare to patients in Washington when KJM was
injured in 2005. Thus, for purposes of this case, CHI was not acting as a health care provider
under the statute.
There is no evidence in the record that Dr. Semerdjian has provided health care in
Washington as a physician since 1991. Dr. Semerdjian was not employed or credentialed at St.
Joseph or at any FHS facilities in August 2005. Further, CHI does not employ any physicians who
are actively engaged in the provision of health care services in Washington. Under the plain
language of RCW 7.70.020, CHI is not a health care provider because CHI does not employ anyone
actively engaged in providing health care or related services in Washington State.
C. EXPANDED DEFINITION OF “HEALTH CARE PROVIDER” UNDER RCW 7.70.020
KJM alternatively asserts that we should expand the definition of health care provider to
“construe chapter 7.70 RCW to govern all persons engaged in the healing arts,” arguing that to do
so would serve public policy. Br. of Appellant at 29. KJM fails to cite authority to support this
argument and we decline to expand the definition of health care provider in RCW 7.70.020
contrary to the plain language of the statute and legislative intent.
1. Legal Principles
Preliminarily, RAP 10.3(a)(6) requires a party to cite supporting authority for its argument.
We note that KJM fails to cite authority for its proposed expansion of the definition of health care
provider. But we exercise our discretion under RAP 1.2(a) to address this issue.
Our goal in interpreting a statute is to “ascertain and carry out the legislature’s intent.”
Jametsky, 179 Wn.2d at 762. We give effect to the plain meaning of the statute as “derived from
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the context of the entire act as well as any ‘related statutes which disclose legislative intent about
the provision in question.’” Jametsky, 179 Wn.2d at 762 (quoting Campbell, 146 Wn.2d at 11).
If a statute’s meaning is plain on its face, we give effect to that meaning as an expression of
legislative intent. Blomstrom, 189 Wn.2d at 390. We avoid construing a statute to lead to absurd
results. Jespersen v. Clark County, 199 Wn. App. 568, 578, 399 P.3d 1209 (2017). We do not
add words to a statute that are not there. Jespersen, 199 Wn. App. at 578.
KJM asks us to expand the definition of a “health care provider” to include everyone
“engaged in the healing arts” as does the language in RCW 4.24.290. We decline to do so. If the
legislature had intended to include “all persons engaged in the healing arts” along with “person[s]
licensed by this state to provide health care or related services,” then presumably it would have
done so. RCW 7.70.020(1).4 However, it did not. KJM’s proposed definition is not consistent
with the plain language of the statute or legislative intent. We decline KJM’s invitation to expand
the definition.
2. Public Policy Does Not Support KJM’s Claim
KJM next claims that “[i]f CHI is not subject to any negligence claim, there would be no
way for the law of torts to encourage CHI to act reasonably or to hold it responsible when it
unreasonably injures babies like KJM.” Br. of Appellant at 41-42. But this argument wrongly
assumes that CHI owed KJM a duty and subsequently breached that duty. We held earlier that
CHI did not owe KJM a duty.
4 The Legislature most recently amended this statute in 2019 and did not expand the definition at that time.
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KJM also claims that without this expanded definition of health care provider to include
CHI, he is left without any tort remedy here. But that is not accurate. Nothing in our analysis
prevents a cause of action against individual health care providers, St. Joseph, or FHS.
Further, we agree with CHI that the corporate practice of medicine doctrine disfavors
creating a duty for CHI in this case. Our supreme court has held that “[t]he corporate practice of
medicine doctrine provides that, absent legislative authorization, a business entity may not employ
medical professionals to practice their licensed profession.” Columbia Physical Therapy, Inc. v.
Benton Franklin Orthopedic Assocs., PLLC, 168 Wn.2d 421, 430, 228 P.3d 1260 (2010). KJM’s
argument, that CHI exercised “complete corporate control over the policies and procedures of its
Washington hospitals,” is at odds with the corporate structure of CHI, which left the health care
decisions regarding KJM’s care and genetic testing to the licensed health care providers who
provided KJM care and treatment at St. Joseph. Br. of Appellant at 37.
CHI did not mandate what newborn genetic screening tests KJM’s doctors or St. Joseph
had to do in August 2005, and there is no evidence in the record that it did so. Providing specific
practice bundles on patient care at the request of its subsidiaries did not result in CHI substituting
its judgment for the clinical judgment of the licensed and credentialed health care providers
working at the hospitals in its subsidiaries. The legislature has determined that licensed health
care providers should make health care decisions with their patients and the provider owes a duty
to the patient under chapter 7.70 RCW. Thus, for these reasons, public policy does not support
imposing a duty on CHI in this case.
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D. NO FACTUAL OR LEGAL CAUSATION
Even assuming there is a duty owed by CHI to KJM, KJM fails to establish cause in fact
or legal causation as a matter of law. KJM sued for damages for injuries resulting from CHI’s
alleged failure to include SNS testing for specific metabolic and genetic disorders, including
GA-1, in the newborn tests offered to pediatric patients like KJM at St. Joseph. KJM also alleged
that the defendants failed to consider other “best medical practices.” CP at 42.
Cause in fact, or “but for” causation, refers to the “physical connection between an act and
an injury.” Hartley, 103 Wn.2d at 778. KJM argues that a jury could find a nexus between Dr.
Semerdjian’s activities and KJM’s injury because of the role that Dr. Semerdjian had within the
CHI system. But KJM fails to establish any cause in fact linking Dr. Semerdjian’s activities to the
health care decisions made by the licensed health care providers at St. Joseph which allegedly
caused KJM’s damages. Further, as a matter of law, KJM also fails to establish legal causation.
Dr. Semerdjian did not treat KJM in August 2005 at St. Joseph, nor was he involved in making
any health care decisions related to KJM, including newborn genetic screening for KJM at St.
Joseph. The record also shows that CHI did not make any health care decisions or direct the health
care of the licensed health care providers who did treat KJM at St. Joseph and who made decisions
related to the genetic screening of KJM at St. Joseph.
KJM argues that CHI should have gone beyond the mandated screening on an institutional
basis instead of a hospital-by-hospital basis because Baylor’s Institute for Metabolic Disease, the
institution CHI’s Chief Medical Officer previously worked at, had ensured that all of its hospitals
offered SNS before any state mandate. KJM does not cite anything that demonstrates that CHI
had an obligation to adopt a similar SNS testing policy to that of Baylor’s; rather, he simply asserts
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that CHI should have adopted a similar policy. This argument is cursory at best and does not
establish a causal connection between the treatment KJM received and his injury, especially where
there is no evidence that CHI could have mandated a particular course of testing or treatment under
the established relationship between CHI and KJM’s health care providers. RAP 10.3(a)(6).
Because KJM fails to establish causation, and we can affirm on any grounds supported by
the record, this additional basis supports summary judgment dismissal of KJM’s claims against
CHI. See Port of Anacortes v. Frontier Indus., Inc., 9 Wn. App. 2d 885, 892, 447 P.3d 215 (2019),
review denied, 195 Wn.2d 1005 (2020).
E. CONCLUSION
KJM’s argument that CHI owes him a duty under chapter 7.70 RCW is contrary to the
plain language of the statute and legislative intent. We hold that the superior court correctly ruled
that CHI did not owe a duty to KJM under chapter 7.70 RCW, and thus, it properly granted
summary judgment dismissal on this basis.
III. VICARIOUS LIABILITY – APPARENT AUTHORITY
Finally, although not determinative of this appeal, KJM argues that CHI was vicariously
liable for FHS and St. Joseph because they acted with apparent authority for CHI. Citing his
mother’s declaration, KJM states that CHI’s name was printed on almost all of the medical records
at St. Joseph’s related to KJM’s birth and newborn care. There is no evidence of apparent authority
of FHS or St. Joseph sufficient to create a genuine issue of material fact even viewing the evidence
in the light most favorable to KJM. Thus, we hold that CHI is not vicariously liable for FHS or
St. Joseph.
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“Under apparent authority, an agent . . . binds a principal . . . if objective manifestations of
the principal ‘cause the one claiming apparent authority to actually, or subjectively, believe that
the agent has authority to act for the principal’ and such belief is objectively reasonable.’” Mohr
v. Grantham, 172 Wn.2d 844, 860-61, 262 P.3d 490 (2011) (quoting King v. Riveland, 125 Wn.2d
500, 507, 886 P.2d 160 (1994)). To recover under a theory of apparent agency, a plaintiff must
show (1) conduct by the principal that would cause a reasonable person to believe that the agent
was in fact an agent of the principal, and (2) reliance on that apparent agency relationship by the
plaintiff. Wilson v. Grant, 162 Wn. App. 731, 744, 258 P.3d 689 (2011).
Here, KJM’s mother stated in her declaration that the CHI logo was on the admission
paperwork she filled out at St. Joseph when she arrived at the hospital to give birth to KJM. She
stated this logo appeared on other “medical records and other documents relating to KJM’s
pediatric care after discharge.” CP at 990. Based on this evidence in the record, KJM’s mother
had already selected St. Joseph as the hospital she intended to give birth at and only noted the CHI
logo on the paperwork upon arrival and following discharge. KJM’s mother did not select St.
Joseph because she thought that specific hospital was acting at CHI’s agent. KJM has not set forth
any additional evidence that shows that FHS or St. Joseph had authority to act for CHI regarding
the health care decisions of the licensed health care providers at St. Joseph who provided care and
treatment to KJM, or that KJM’s mother thought FHS or St. Joseph were apparent agents of CHI.
Thus, we hold that CHI is not vicariously liable for FHS or St. Joseph under a theory of
apparent authority, and KJM fails to present sufficient evidence to support this claim.
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CONCLUSION
We hold that because CHI is not a health care provider under RCW 7.70.020, CHI does
not owe a duty to KJM and even assuming a duty is owed, KJM fails to prove causation as a matter
of law, and no duty exists under common law. We decline to expand the definition of health care
provider and we hold that CHI is not vicariously liable for FHS or St. Joseph. We also decline
KJM’s invitation to apply Washington’s definition of health care provider in a way that assumes
CHI directed health care decisions in this matter as KJM provided no evidence that was the case.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J. We concur:
GLASGOW, A.C.J.
VELJACIC, J.