FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON JANUARY 18, 2024 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON JANUARY 18, 2024 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
M.N. and G.T., individually and on behalf of ) all others similarly situated, ) ) Petitioners, ) No. 101537-2 ) A.B. and W.N., individually and on behalf of ) En Banc all others similarly situated, ) ) Filed : ______________ January 18, 2024 Plaintiffs, ) ) v. ) ) MULTICARE HEALTH SYSTEM, INC., a ) Washington corporation, ) ) Respondent. ) )
OWENS, J.—A nurse employed by MultiCare Health System, Cora Weberg
(Nurse Weberg), improperly diverted injectable narcotics for her own use. She infected
some emergency department patients with hepatitis C and may have exposed many
more. MultiCare notified all patients who received injectable narcotics while Nurse
Weberg was on duty that they were potentially exposed. MultiCare encouraged these
patients to have their blood tested for hepatitis C, hepatitis B, and HIV (human M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
immunodeficiency virus). As a result of these tests, MultiCare determined that only
patients assigned to Nurse Weberg were actually at risk.
The patients brought a class action suit. They claim MultiCare failed to meet the
accepted standard of care in supervising and hiring Nurse Weberg. The trial court
divided the class into two groups: those who were assigned to Nurse Weberg and those
who were not. It then dismissed the claims of the second group. The trial court ruled
that legal causation was not satisfied because Nurse Weberg did not directly treat these
patients. The Court of Appeals affirmed. We reverse both courts and hold that legal
causation is satisfied. Both classes can proceed with their chapter 7.70 RCW claims.
FACTS AND PROCEDURAL HISTORY
MultiCare Health System operates Good Samaritan Hospital in Puyallup.
Clerk’s Papers (CP) at 1-2. In 2018, two patients who had previously received care at
Good Samaritan tested positive for hepatitis C, despite not having any risk factors for
the disease. CP at 84. Both patients had received intravenous injections of narcotics
from the same nurse—Nurse Weberg—in the hospital’s emergency department. CP at
143. Nurse Weberg was suspected of diverting drugs for her own use. CP at 110.
Drug diversion is a known problem in health care settings. CP at 520-32. Hospitals
usually develop policies and procedures to track drugs at risk of being diverted and
the personnel administering them. Id. The parties do not contest that Weberg
committed misconduct and likely caused the hepatitis C outbreak. CP at 143.
2 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
After learning of Nurse Weberg’s misconduct, MultiCare sent a letter to all
2,762 patients who received injectable narcotics in Good Samaritan’s emergency
department while Nurse Weberg was on duty. CP at 462-63, 349. The letter stated,
“an employee in the Emergency Department may have exposed at least two patients to
Hepatitis C virus, causing them to become infected.” CP at 462. It offered
complimentary blood testing for hepatitis C, hepatitis B, and HIV to all letter
recipients and cautioned, “The only way to be certain you were not infected is to have
your blood tested.” Id. The letter also stated that patients may need to undergo
additional testing within six months to rule out infection. Id.
MultiCare sent the letter both to patients who were assigned to Nurse Weberg
and those who were not. CP at 462-63, 465-66, 468-69. Tacoma-Pierce County
Health Department (TPCHD) and the United States Centers for Disease Control and
Prevention (CDC) recommended testing for both groups of patients. CP at 75, 104.
The hospital internally designated patients assigned to Weberg as “high risk” and the
others as “low risk.” CP at 364-66. However, it sent the same letter to both groups.
CP at 462-66.
Overall, 1,863 people had their blood tested. CP at 85. The tests identified 11
more cases of hepatitis C. Id. All 13 patients who tested positive for hepatitis C had
been assigned to Nurse Weberg during their emergency room (ER) visit. CP at 365-
66.
3 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
Procedural History
M.N., A.B., G.T., and W.N. brought this class action on behalf of all persons
who received the notification letter from MultiCare. CP at 7, 27-28. They alleged
negligent supervision and hiring under a theory of corporate negligence and under
chapter 7.70 RCW. CP at 298. Chapter 7.70 RCW provides a cause of action for
injuries resulting “from the failure of a health care provider to follow the accepted
standard of care.” RCW 7.70.030(1). The class claimed damages for “severe
emotional and mental anguish” and for “medical care, treatment, and services.” CP at
2, 12. We note that not all class members had their blood tested, and therefore some
patients experienced only emotional harm.
The trial court certified two classes of patients. The “Weberg Treatment Class”
consists of the 208 patients assigned to Nurse Weberg. CP at 322. The “General
Treatment Class” consists of the 2,554 patients who were not assigned to Nurse
Weberg. Id. Neither class contains individuals who were infected with the strain of
hepatitis C linked to Weberg. CP at 664 n.1.
MultiCare moved to dismiss the General Treatment Class’s claims on a motion
for summary judgment. CP at 325-45. It argued that the General Treatment Class
failed to prove legal causation. CP at 340. MultiCare said that because Nurse
Weberg did not treat this group, they did not experience harm “caused by” a
negligently supervised employee. Id. (emphasis omitted). Furthermore, it argued that
4 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
this group could not prove they were ever at risk of exposure to the virus. CP at 336.
MultiCare urged the court to adopt a rule that would require proof of actual exposure
to a disease before plaintiffs can recover. CP at 332. The trial court granted
MultiCare’s motion, reasoning that imposing liability without actual exposure could
chill a hospital’s investigation of disease outbreaks. CP at 724. It dismissed the
General Treatment Class’s claims. CP at 660-61.
Division II affirmed the trial court’s dismissal in a divided opinion. The
majority held that the General Treatment Class did not establish legal causation. M.N.
v. MultiCare Health Sys., Inc., 23 Wn. App. 2d 558, 568, 519 P.3d 932 (2022). It held
that public policy weighed in favor of limiting liability when a hospital responds to a
disease outbreak. Id. This court accepted review. M.N. v. MultiCare Health Sys.,
Inc., 1 Wn.3d 1001 (2023).
ISSUES
(1) Do the General Treatment Class’s alleged injuries arise “as the result of
health care” as required for a chapter 7.70 RCW claim?
(2) Is legal causation met when a hospital’s negligent supervision and hiring
potentially exposes patients to a bloodborne pathogen, inducing fear and requiring
blood testing?
5 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
ANALYSIS
This court is reviewing an order granting summary judgment and considers
questions of law de novo. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d
1068 (2002).
1. The General Treatment Class’s Alleged Injuries Arise “as the Result of Health Care” as Required for a Chapter 7.70 RCW Claim
MultiCare argues that the General Treatment Class does not have a claim under
chapter 7.70 RCW because their injuries do not arise as the result of health care.
MultiCare Health Sys., Inc.’s Suppl. Br. (Resp’t’s Suppl. Br.) at 26. It points out that
they were never treated by Nurse Weberg and Nurse Weberg is the one who
committed misconduct. Id. However, the General Treatment Class does not argue
they were harmed by Weberg’s negligence but by the hospital’s negligence in
supervising and hiring her.
Chapter 7.70 RCW governs “all civil actions and causes of action, whether
based on tort, contract, or otherwise, for damages for injury occurring as a result of
health care.” RCW 7.70.010. The General Treatment Class’s claim falls under RCW
7.70.030(1) as it argues that MultiCare failed “to follow the accepted standard of
care.” To prevail, the General Treatment Class must prove that MultiCare failed to
exercise the degree of care, skill, and learning of a reasonably prudent health care
provider and that such failure proximately caused their injury. RCW 7.70.040(1).
6 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
However, for a plaintiff’s claim to fall under chapter 7.70 RCW, the injury must occur
“as a result of health care.” RCW 7.70.010.
Chapter 7.70 RCW does not define “health care,” but Washington courts have
defined it as “‘the process in which [a physician is] utilizing the skills which he had
been taught in examining, diagnosing, treating, or caring for the plaintiff as his
patient.’” Sherman v. Kissinger, 146 Wn. App. 855, 867, 195 P.3d 539 (2008)
(alteration in original) (quoting Branom v. State, 94 Wn. App. 964, 969-70, 974 P.2d
335 (1999)).
Individuals and entities beyond physicians can provide health care. Chapter
7.70 RCW defines “health care provider” as “[a] person licensed by this state to
provide health care or related services.” RCW 7.70.020(1). “Health care provider”
also includes nonhuman actors, such as a “hospital,” “facility, or institution” that
employs a person providing health care. RCW 7.70.020(3).
Thus, “health care” under chapter 7.70 RCW is the process by which any health
care provider uses the skills they have been taught to examine, diagnose, treat, or care
for the plaintiff as their patient.
We hold that the General Treatment Class’s injuries arise as a result of health
care, allowing their claim under chapter 7.70 RCW to proceed. Every member of the
General Treatment Class was a patient in Good Samaritan’s ER and received
injections from a health care provider as part of their treatment. These injections were
7 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
part of the process of being treated or cared for by a health care provider who was
using the skills they had been taught. The potential exposure to hepatitis C results
from MultiCare’s alleged failure to follow the accepted standard of care in the process
of providing this health care. Thus, the General Treatment Class has a chapter 7.70
RCW claim even without evidence they were treated by Weberg.
2. Legal Causation Is Satisfied
The General Treatment Class brings claims under chapter 7.70 RCW and the
common law doctrine of corporate negligence. Both causes of action have a proximate
cause requirement. Under chapter 7.70 RCW, a plaintiff must prove that a health care
provider’s negligence was the “proximate cause of the injury complained of.” RCW
7.70.040(1)(b). Corporate negligence claims similarly require a breach of care that
proximately caused plaintiff’s injury. Douglas v. Freeman, 117 Wn.2d 242, 248, 814
P.2d 1160 (1991). “Proximate cause has two elements: cause in fact and legal cause.”
N.L. v. Bethel Sch. Dist., 186 Wn.2d 422, 436-37, 378 P.3d 162 (2016).
Legal causation “involves a determination of whether liability should attach as
a matter of law given the existence of cause in fact.” Hartley v. State, 103 Wn.2d 768,
779, 698 P.2d 77 (1985). Courts evaluate whether “the connection between the
ultimate result and the act of the defendant is too remote or insubstantial to impose
liability.” Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 478-79, 951 P.2d 749
(1998). Legal causation is “grounded in policy determinations as to how far the
8 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
consequences of a defendant’s acts should extend.” Id. at 478. Courts weigh “‘mixed
considerations of logic, common sense, justice, policy, and precedent.’” Id. at 479
(internal quotation marks omitted) (quoting King v. City of Seattle, 84 Wn.2d 239,
250, 525 P.2d 228 (1974)).
The Court of Appeals did not find legal causation in this case. M.N. v.
MultiCare, 23 Wn. App. 2d at 568. It concluded that there is no “bright-line
rule” governing legal causation in fear of disease transmission cases. Id. at
566. Therefore, it decided “[a]s a policy matter” not to impose liability on
MultiCare. Id. at 567. We reverse the Court of Appeals for three reasons.
First, chapter 7.70 RCW allows claims for purely emotional damages.
Therefore, the fact that some class members suffered only emotional harm does
not preclude their chapter 7.70 RCW claim. Second, the General Treatment
Class’s harm is directly caused by the hospital’s conduct, not from being
treated by Nurse Weberg or receiving the notification letter. And third, public
policy favors finding legal causation when a hospital’s negligence leads to an
objectively reasonable fear of contracting a disease through a medically
recognized means of transmission.
9 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
A. While Washington Law Often Disfavors Damages for Purely Emotional Harm, Chapter 7.70 RCW Does Not Impose Such a Restriction
MultiCare argues that because the General Treatment Class’s damages are
largely emotional, their interest in recovery is outweighed by other policy
considerations. Resp’t’s Suppl. Br. at 10-11. However, chapter 7.70 RCW does not
distinguish between emotional and physical harms. Purely emotional damages can be
a valid basis for a chapter 7.70 RCW claim. Therefore, the fact that some class
members did not undergo blood testing and suffered only emotional harms should not
preclude them from bringing a claim as a matter of law.
Washington courts have recognized the need to limit claims for purely
emotional damages under some causes of action. Courts were concerned that
“feigned claims of emotional distress would lead to ‘intolerable and interminable
litigation.’” Bylsma v. Burger King Corp., 176 Wn.2d 555, 560, 293 P.3d 1168
(2013) (internal quotation marks omitted) (quoting Corcoran v. Postal Tel.-Cable Co.,
80 Wash. 570, 579, 142 P. 29 (1914)). Therefore, we established an “objective
symptomatology” requirement for negligent infliction of emotional distress (NIED)
claims. Hunsley v. Giard, 87 Wn.2d 424, 436, 553 P.2d 1096 (1976). NIED
claimants may recover for purely emotional harm, but it must manifest in “physical
symptoms evidencing and resulting from the emotional distress.” Id. at 433
10 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
However, the objective symptomatology requirement applies only to NIED
claims. It does not apply to claims of intentional infliction of emotional distress,
Kloepfel v. Bokor, 149 Wn.2d 192, 66 P.3d 630 (2003), attorney negligence, Schmidt v.
Coogan, 181 Wn.2d 661, 335 P.3d 424 (2014) (plurality opinion), or wrongful
adoption, Price v. State, 114 Wn. App. 65, 57 P.3d 639 (2002), among others.
Most importantly, there is no objective symptomatology requirement under
chapter 7.70 RCW. In Berger v. Sonneland, this court addressed this question directly.
144 Wn.2d 91, 26 P.3d 257 (2001) reversing 101 Wn. App. 141, 1 P.3d 1187 (2000).
In Berger, a woman sued her doctor under chapter 7.70 RCW for negligently disclosing
her confidential medical history. Id. at 95-96. We held that plaintiffs can recover for
purely emotional damages under chapter 7.70 RCW without any proof of objective
symptomatology. Id. at 113. We agreed with the lower court that chapter 7.70 RCW
claims are already limited, as they must arise from health care and must fit within the
statute’s narrow framework. Berger, 101 Wn. App. at 158. Therefore, an objective
symptomatology requirement is unnecessary.
The General Treatment Class may pursue a claim for purely emotional
damages under chapter 7.70 RCW. Therefore, the fact that some class
members suffered purely emotional damages is irrelevant in determining legal
causation in this case.
11 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
B. The General Treatment Class’s Harm Was Directly Caused by the Alleged Negligence of the Hospital in Supervising and Hiring Employees
Because Nurse Weberg did not directly treat the General Treatment
Class, MultiCare argues other policy concerns outweigh the General Treatment
Class’s fear of disease transmission. Resp’t’s Suppl. Br. at 16. This is
irrelevant to the issue of legal causation because the General Treatment Class’s
claim is not based on direct treatment by Nurse Weberg. Instead, the General
Treatment Class has demonstrated that they reasonably feared infection based
on their treatment in a negligently managed emergency department.
The General Treatment Class provided several bases for this fear. Nurse
Weberg kept inconsistent records about what patients she cared for and what
drugs she administered. CP at 103-12, 613-18. A patient in a busy ER may be
treated by whatever nurse is available, whether or not they are assigned to that
patient. CP at 573. Health workers who divert drugs may contaminate a
generally available supply of syringes that can then infect patients they did not
directly treat. CP at 617. See also Exeter Hosp., Inc. v. Kwiatkowski, No.
14-CV-09-PB, 2014 WL 1795055 (D.N.H. May 6, 2014) (doctor infected
patients with hepatitis C by placing contaminated syringes in general
distribution). Finally, MultiCare, TPCHD, and the CDC all believed the
General Treatment Class was at risk of contracting a bloodborne disease
12 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
regardless of whether they were treated by Weberg. This is why they
recommended testing to this group. CP at 104, 462.
No plaintiffs in this suit—whether in the Weberg Class or the General
Treatment Class—base their claim for damages on treatment by Nurse Weberg.
Patients were unaware that Nurse Weberg was responsible for spreading the
virus when they learned of the outbreak. MultiCare’s letter stated only that “an
employee in the Emergency Department” may have exposed patients to
hepatitis C. CP at 468. The same notification letter was sent to all at-risk
patients, whether they were treated by Nurse Weberg or not. Instead, the fear
arose from a real risk of exposure to bloodborne pathogens, as determined by
public health experts, not from being directly treated by Nurse Weberg. Thus,
the fact that Nurse Weberg did not treat the General Treatment Class is not
relevant to legal causation.
MultiCare also suggests that the General Treatment Class’s distress was
“‘caused by MultiCare’s notification letter.’” Resp’t’s Suppl. Br. at 30 (quoting M.N.
v. MultiCare, 23 Wn. App. 2d at 568). It argues that sending the notification letter
was nonnegligent, therefore the General Treatment Class’s distress upon receiving the
letter is too remote from any actual negligence and MultiCare should not be held
liable. Resp’t’s Suppl. Br. at 8.
13 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
Claims for purely emotional harms often arise from a plaintiff’s knowing
or learning of misconduct. However, it is irrelevant how they learn of the
misconduct. The content of the notification and the underlying negligence
causes the harm. For example, in Bylsma, a police officer suffered emotional
harm after learning that an employee had spit in his burger. 176 Wn.2d at 557.
Although he discovered the spit by observing it and touching it with his hand,
the manner of discovery does not matter. Id. If his meal had been delivered
with a note telling him there was spit in his burger, he would have had an
equally strong claim. The underlying negligent conduct harmed him, not the
manner of discovery.
In this case, there is perfect overlap between the injured group and the group
that received MultiCare’s notification letter. But this does not mean that the letter
caused the harm. Rather, both classes were harmed by exposure to a high risk of
infection in MultiCare’s emergency department. Laudably, MultiCare chose to notify
everyone in this at-risk group. But even if the class had learned of their risk of
exposure from the CDC or the local health department rather than from MultiCare,
they would have had an equally strong claim.
MultiCare and the Court of Appeals improperly focused on the
notification letter. The General Treatment Class learned of the outbreak
through the letter but was harmed by the allegedly negligent acts revealed in
14 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
the letter. If MultiCare had properly hired, supervised, and monitored potential
drug diversion by employees, notification likely would not have been
necessary. The General Treatment Class’s damages are not too remote from
MultiCare’s acts to impose liability.
C. Public Policy Favors Finding Legal Causation when There Is an Objectively Reasonable Fear of Disease, Transmitted by Medically Recognized Means, and Damages within the Window of Anxiety
Legal causation is largely a policy question, and there are strong policy
considerations on both sides of this issue.
General principles of tort law recognize that tortfeasors should be held liable
for the harm they cause. When someone is harmed by another, it is only fair that the
injured party is compensated by the wrongdoer. Seattle-First Nat’l Bank v. Shoreline
Concrete Co., 91 Wn.2d 230, 236, 588 P.2d 1308 (1978). Additionally, imposing
liability on wrongdoers has a deterrent effect. Barr v. Interbay Citizens Bank of
Tampa, 96 Wn.2d 692, 699, 635 P.2d 441 (1981). If a hospital knows it will be held
financially accountable for its negligence, it will have a strong incentive to ensure it
meets the standard of care. As the General Treatment Class points out, a hospital is in
a much better position than patients to ensure that its employees are providing safe
and competent care. Suppl. Br. of Pet’rs at 21.
15 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
However, strong policy considerations also weigh against holding a
hospital liable in disease transmission cases. As TPCHD notes in its amicus
brief, “health departments across Washington rely on the voluntary actions of
medical institutions” to communicate with patients in the event of a disease
outbreak. Br. of Amicus Curiae TPCHD at 8. While Washington law requires
hospitals to communicate with local health departments, it does not require a
hospital to notify potentially infected patients. Id. at 16. TPCHD argues that
holding MultiCare liable to the General Treatment Class “risks creating a
perverse incentive for medical institutions to withhold . . . notice in future
potential outbreaks.” Id. at 15.
Both sides raise valid concerns. This court has yet to weigh these policy
concerns in a case involving fear of disease transmission. Other jurisdictions to
consider this issue have adopted legal causation standards of two general types:
(1) an objective “actual exposure” test or (2) a “reasonableness of fear” test.
An “actual exposure” test forces plaintiffs to “demonstrate an exposure to a
disease causing agent.” Burk v. Sage Prods., Inc., 747 F. Supp. 285, 287 (E.D. Pa.
1990). One court interprets the test to require both that a disease “was present in the
alleged disease-transmitting agent . . . and that a medically sound channel of
transmission existed.” Madrid v. Lincoln County Med. Ctr., 1996-NMSC-049, ¶ 20,
122 N.M. 269, 275, 923 P.2d 1154. This objective standard ensures that public
16 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
misconceptions about how a disease is spread do not lead to “frivolous litigation.”
Pendergist v. Pendergrass, 961 S.W.2d 919, 926 (Mo. App. 1998). This was a
particular concern during the HIV/AIDS (acquired immune deficiency syndrome)
epidemic, when public misconceptions about the virus and its spread led to
“‘unreasonable suspicion or general paranoia.’” Id. (quoting Brzoska v. Olson, 668
A.2d 1355, 1363 (Del. 1995)).
However, proving actual exposure to a disease can be impossible in some cases
and may be an unjust bar to recovery. Faya v. Almaraz, 329 Md. 435, 455, 620 A.2d
327 (1993). For example, a plaintiff’s claim would fail if a syringe or other disease-
transmitting agent is discarded before being tested. Therefore, some jurisdictions
require plaintiffs to show only a “medically sound channel of transmission” of a
disease. Madrid, 122 N.M. at 278. This allows recovery for reasonable fears of
exposure even when evidence is lost or unavailable. It also limits claims when fear of
contracting a disease is not based on any scientifically recognized means of
transmission.
Alternatively, jurisdictions that apply a “reasonableness of fear” test focus on
whether a plaintiff’s fear of contracting a disease was “reasonable.” Williamson v.
Waldman, 150 N.J. 232, 242, 696 A.2d 14 (1997). A reasonableness test supports
general tort principles of deterrence and compensation by making recovery easier.
These jurisdictions often include an additional requirement to limit meritless claims.
17 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
For example, New York courts consider one or more of the following factors to
determine whether a plaintiff’s fear of developing AIDS is reasonable: the channel of
transmission, whether HIV was present when the transmission occurred, and the
results of an HIV antibody test. Brown v. N.Y.C. Health & Hosps. Corp., 648
N.Y.S.2d 880, 886, 225 A.D.2d 36 (1996). New Jersey defines “reasonable” to
coincide “with then-current, accurate, and generally available public information
about the causes and transmission of [the disease].” Williamson, 150 N.J. at 249.
Other courts consider emotional distress reasonable only if it occurs within “the
window of anxiety.” Williamson, 150 N.J. at 250; Faya, 329 Md. at 456. This is the
period between when a person learns of the exposure and when they know or should
know that they are not infected. This limits damages to a circumscribed window,
even if a plaintiff refuses testing or suffers anxiety in spite of a negative test result.
MultiCare points out that the majority of jurisdictions adopted the “actual
exposure” requirement. However, most of the cases surveyed arose in the context of
an NIED claim. Because NIED claims often have a physical impact requirement,
many courts favor the “actual exposure” test because it contains an objective element
analogous to the NIED physical impact test. See Carroll v. Sisters of Saint Francis
Health Servs., Inc., 868 S.W.2d 585, 594 (Tenn. 1993) (adopting actual exposure
requirement because it is consistent with the “existent injury” requirement for NIED
claims); see also Madrid 122 N.M. 269 (declining to adopt the actual exposure test in
18 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
part because New Mexico no longer requires proof of physical manifestation of injury
in NIED claims). This case arises under chapter 7.70 RCW and not NIED.
Therefore, a physical impact requirement is unnecessary.
We reject the cautious “actual exposure” test favored in NIED cases. However, a
pure “reasonableness” standard lacks guardrails and could lead to excessive liability if
the public lacks information about a disease. Therefore, the test we adopt must link
reasonableness to a scientific understanding of how a particular disease is spread and
who is at risk of infection. Additionally, plaintiffs should be able to recover emotional
distress damages only for the period between discovery of the potential exposure and
when it is clear that they have not been infected.
Therefore, this court adopts a new test for legal causation for chapter 7.70
RCW claims that involve fear of disease transmission. Plaintiffs must establish (1) an
objectively reasonable fear of having contracted a disease (2) through a medically
recognized means of transmission (3) and damages that occur within the window of
anxiety. This test weeds out frivolous litigation and accounts for public
misinformation while still holding tortfeasors responsible for the consequences of their
negligence.
Applying the test to this case, we hold that the General Treatment Class has
established legal causation in their chapter 7.70 RCW claim. The General Treatment
Class has shown that class members reasonably feared contracting hepatitis C when
19 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2
they learned of the alleged negligence. They have also demonstrated a medically
recognized means of transmission: intravenous injections of potentially contaminated
drugs. Under this test, the General Treatment Class does not need to prove the
injections they received were actually infected with a disease. Finally, the General
Treatment Class may recover damages only for the window of anxiety, which is the
period between when a person learns of the exposure and when they know or should
know that they are not infected.
CONCLUSION
We hold that the General Treatment Class properly brought this claim under
chapter 7.70 RCW because their injuries arise as a result of heath care. We adopt a
new test for legal causation in chapter 7.70 RCW claims involving fear of disease
transmission. Plaintiffs must establish (1) an objectively reasonable fear of having
contracted a disease (2) through a medically recognized means of transmission (3) and
damages that occur within the “window of anxiety.” The General Treatment Class has
established legal causation for their chapter 7.70 RCW claim. We leave for the courts
below to explore if and how this affects legal causation in any corporate negligence
claims that remain in this case.
The Court of Appeals’ decision is reversed as to the General Treatment Class’s
chapter 7.70 RCW claim. The case is remanded to the Court of Appeals for
proceedings consistent with this opinion.
20 M.N. & G.T. v MultiCare Health Systems, Inc. No. 101537-2
_______________________________
WE CONCUR:
Hazelrigg, J.P.T.
21 No. 101537-2
GONZÁLEZ, C.J. (dissenting)—The plaintiffs before us went to Good
Samaritan Hospital for emergency care. While they were there, a nurse exposed
some of her patients to a deadly disease. Once a cluster of hepatitis outbreaks was
detected, the hospital and public health workers made the responsible choice to
inform all those who might be at risk and to offer them free blood tests.
As results came in, it became clear that only the nurse’s own patients were at
risk. But these plaintiffs, who were not the nurse’s patients, had to live for months
not knowing if they had been exposed, if they would need difficult and expensive
treatment, if they posed a risk to their loved ones, or if their lives would be cut
short. That is an undeniable injury.
But not all injuries have remedies at law. Whether these plaintiffs do is
governed by chapter 7.70 RCW. In that act, the legislature has limited
compensable injuries resulting from health care to three categories. RCW M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2 (González, C.J., dissenting)
7.70.030. The only category that possibly applies here is the failure to meet the
standard of care. RCW 7.70.030(1).1
None of the plaintiffs before us were treated, exposed, or infected by the
nurse. They were never at risk from her. The plaintiffs’ real injury was their
temporary fear that they were injured. While that fear is understandable, it is not
an injury for which chapter 7.70 RCW gives a remedy.
Plaintiffs who got blood tests may have suffered a compensable injury under
chapter 7.70 RCW. Blood tests are inconvenient, highly invasive, and can cause
pain and anxiety. But even if a voluntary blood test under these circumstances
could be considered an injury, whether that injury is potentially compensable turns
on whether the hospital’s failure to meet the standard of care was a legal cause of
the plaintiffs’ injuries. Arguably, the hiring, training, and supervision of the nurse
did not meet the standard of care and was a cause in fact of the blood test. But to
be actionable, the hospital’s failure to meet the standard of care must also be a
legal cause of any injury. Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 478,
951 P.2d 749 (1998) (citing King v. City of Seattle, 84 Wn.2d 239, 249, 525 P.2d
228 (1974)).
1 Under chapter 7.70 RCW, plaintiffs may also seek recovery for unfulfilled promises that an injury would not occur or injuries resulting from health care delivered without consent. RCW 7.70.030(2), (3). These categories are not before us. 2 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2 (González, C.J., dissenting)
“Legal cause ‘is grounded in policy determinations as to how far the
consequences of a defendant’s acts should extend.’” N.L. v. Bethel Sch. Dist., 186
Wn.2d 422, 437, 378 P.3d 162 (2016) (quoting Crowe v. Gaston, 134 Wn.2d 509,
518, 951 P.2d 1118 (1998)). Even if the hospital was negligent, the blood test was
the direct result of the hospital taking responsible action. The Tacoma-Pierce
County Public Health Department describes the hospital’s actions as the “model
response to a potential outbreak of communicable disease. Had [the hospital]
refused to send the notices at issue here, public health would have suffered.” Br.
of Amicus Curiae Tacoma-Pierce County Pub. Health Dep’t at 5. The hospital’s
actions also followed public policies embraced by the Washington State
Legislature and our evidence rules. See RCW 5.64.010(1) (“In any civil action
against a health care provider for personal injuries which is based upon alleged
professional negligence . . . evidence of furnishing or offering or promising to pay
medical, hospital, or similar expenses occasioned by an injury is not admissible.”);
ER 407 (subsequent remedial measures not evidence of negligence or culpable
conduct). Given these strong policies in favor of disclosure and remedial action,
under the statute, the hospital’s actions were not the proximate cause of an injury
for which the law gives a remedy.
3 M.N. & G.T. v MultiCare Health System, Inc. No. 101537-2 (González, C.J., dissenting)
I would affirm the courts below. Accordingly, I respectfully dissent.