Opinion
No. 24240-4-III.
Filed: April 25, 2006.
Appeal from Superior Court of Spokane County. Docket No: 05-2-00340-0. Judgment or order under review. Date filed: 05/23/2005. Judge signing: Hon. Salvatore F. Cozza.
Counsel for Appellant(s), Peter Joseph Johnson, Johnson Law group, 804 W Boone Ave, Spokane, WA 99201-2502.
Jennifer M. Larson, Johnson Law Group, 804 W Boone Ave, Spokane, WA 99201-2502.
Counsel for Respondent(s), Brian T. Rekofke, Attorney at Law, 1100 Us Bank Bldg, 422 W Riverside Ave, Spokane, WA 99201-0369.
Mary H. Spillane, William Kastner Gibbs, Two Union Square, 601 Union St Ste 4100, Seattle, WA 98101-2380.
UNPUBLISHED OPINION
This is an action for damages by a patient against a hospital. The court dismissed the patient's claims. So we view the facts in a light most favorable to the patient. So viewed, the facts are: his leg had just been amputated, he was left sedated and unattended with the bed rails down, and he fell from the bed and was injured. The questions presented are (1) whether the patient needed affidavits from experts as to the standard of care and causation to make out a prima facie case of negligence; and (2) whether the court properly rejected as inadequate an affidavit from a nurse that Mr. Greenberg provided. We conclude that the nurse's affidavit was both competent and sufficient to avoid summary dismissal here. And we need not, therefore, address whether the affidavit of a medical expert was necessary to avoid summary dismissal of this medical negligence claim. We reverse the order of summary judgment for the hospital.
FACTS
The facts, again looked at in a light favorable to the nonmoving party, show the following: Richard Greenberg's left leg was amputated above the knee at Deaconess Medical Center. Mr. Greenberg remained heavily sedated on the fifth day after surgery. A hospital employee nonetheless left him unattended with the bed rails down. Mr. Greenberg fell from the bed and injured himself.
Deaconess disputes the level of Mr. Greenberg's sedation, his definition of 'unattended,' and claims his injury preexisted the fall Procedure Mr. Greenberg alleged that Deaconess failed to follow its own protocols requiring reasonable precautions for restraining disabled patients. Specifically, he alleged that the nursing, health care, and medical staff were negligent in evaluating his physical and mental condition before leaving him unattended and unrestrained. Clerk's Papers (CP) at 5. Mr. Greenberg alleged Deaconess did not meet the standard expected of a reasonably prudent hospital in the same or similar circumstances.
Deaconess moved for summary dismissal. It asserted that the claim was governed by the malpractice statute, chapter 7.70 RCW, because it was for damages resulting from health care. Deaconess then argued that RCW 7.70.040(1) requires every plaintiff to demonstrate a prima facie case by establishing the standard of care, breach, and causation with expert medical affidavits. Deaconess asserted it was, therefore, entitled to summary judgment because Mr. Greenberg had not produced any affidavits from medical expert witnesses.
'Necessary elements of proof that injury resulted from failure to follow accepted standard of care. The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care:
'(1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances;
'(2) Such failure was a proximate cause of the injury complained of.'
RCW 7.70.040.
Mr. Greenberg responded that chapter 7.70 RCW is not the sole basis for a cause of action because he was not suing a doctor. He was not, therefore, alleging medical malpractice but common law 'corporate' negligence. He alleged that Deaconess breached a duty to exercise reasonable care to provide for the physical safety of its patients, as set forth in the hospital licensing statute, chapter 70.41 RCW, as well as Administrative Code regulations, and Deaconess's own policies and procedures. From this he argued that chapter 7.70 RCW does not apply. And he did not, therefore, have to disclose his consulting expert witnesses until later in discovery. Moreover, Mr. Greenberg argued, even if chapter 7.70 RCW did apply, expert affidavits would not be required on these facts, because the prima facie case was apparent without an expert — he fell out of bed because an employee failed to raise the bed rail.
The trial court ruled that this was a claim for damages resulting from health care and chapter 7.70 RCW was, therefore, controlling. The court then concluded that the statute required affidavits by experts in every case. The court ruled that without expert affidavits on the standard of care and causation, Mr. Greenberg had not made out a prima facie case. And Deaconess was therefore entitled to judgment as a matter of law. Mr. Greenberg then asked for a continuance to obtain the affidavits. The court denied a continuance. The court offered to consider an affidavit if Mr. Greenberg were to file one with a timely motion for reconsideration. Mr. Greenberg did move for reconsideration and filed an affidavit by Carolyn Hunter, R.W.M.A. Ms. Hunter has been a registered nurse for 40 years. She has provided surgical postoperative care at many first-rate hospitals. She had been an instructor at the Washington State University nursing school. And the governor had appointed her to the Washington State Board of Nursing. Nurse Hunter reviewed Mr. Greenberg's hospital records. She opined that the standard of care required ongoing evaluation of the patient's condition and that it would not have been prudent to leave Mr. Greenberg without bed rails given the medications he was receiving. The court found the affidavit conclusory and based on insufficient facts. It refused to reconsider and entered summary judgment for Deaconess.
DISCUSSION Nature of the Claims
Mr. Greenberg contends that the malpractice statute, chapter 7.70 RCW, does not apply to all actions against hospitals for damages resulting from health care. He urges that the suit is not one for medical malpractice unless a doctor is being sued. And Washington recognizes a cause of action against a hospital for ordinary corporate negligence. Mr. Greenberg relies primarily on Osborn v. Public Hospital District 1, a fall-out-of-bed case that preceded the enactment of chapter 7.70 RCW. Osborn v. Pub. Hosp. Dist. 1, 80 Wn.2d 201, 492 P.2d 1025 (1972).
Osborn held that a patient could sue a hospital even with no claim against his doctor. The court held that a hospital was not relieved of direct liability by blindly following a doctor's authorization without independently evaluating a sedated patient's condition. The court found a basis for separate hospital liability in chapter 70.41 RCW, the hospital licensing and regulation statute. Id. at 205-06.
Deaconess responds that Mr. Greenberg misreads Osborn. Deaconess urges that Osborn simply says a hospital has its own independent duty, not a different sort of duty. Id. Moreover, Deaconess responds, the legislature enacted chapter 7.70 RCW after Osborn, and that statute states unambiguously that all civil actions against health care providers — including hospitals — for damages resulting from health care are governed by chapter 7.70 RCW.
Standard of Review And Canons of Construction
We review a grant of summary judgment de novo. We engage in the same inquiry as the trial court. Colwell v. Holy Family Hosp., 104 Wn. App. 606, 611, 15 P.3d 210 (2001). A party is entitled to summary judgment when the pleadings, affidavits, depositions, and admissions on file demonstrate that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. CR 56(c); Berger v. Sonneland, 144 Wn.2d 91, 102, 26 P.3d 257 (2001). The initial burden is on the moving party to show that there is no genuine dispute as to any material fact. Berger, 144 Wn.2d at 102. We review all questions of law de novo. We view the facts and all reasonable inferences from them in a light most favorable to the nonmoving party. Id. at 102-03. We will affirm an order of summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Morris v. McNicol, 83 Wn.2d 491, 495, 519 P.2d 7 (1974).
Whether a statute applies to a given set of facts is a matter of statutory interpretation; it is also a question of law. State v. Law, 110 Wn. App. 36, 39, 38 P.3d 374 (2002); Doe v. Boeing Co., 64 Wn. App. 235, 239, 823 P.2d 1159 (1992), rev'd on other grounds, 121 Wn.2d 8, 846 P.2d 531 (1993). We therefore review the trial court's interpretation de novo. Berger, 144 Wn.2d at 104-05. We derive a statute's meaning from the words alone if it is plain and unambiguous. We assume the legislature means exactly what it says. Id. at 105.
Chapter 7.70 RCW Applies
Here, there are no disputed material facts on the issue of whether chapter 7.70 RCW provides the exclusive remedy. Mr. Greenberg does not allege that he fell out of bed in the course of something other than health care. Rather, he asserts that a claim for damages resulting from nursing care provided by a hospital is not preempted by chapter 7.70 RCW. But the plain language of chapter 7.70 RCW suggests otherwise. The statute governs all aspects of all civil actions and causes of action against all health care providers for all damages occurring as a result of all health care. RCW 7.70.010; Branom v. State, 94 Wn. App. 964, 968, 974 P.2d 335 (1999). A hospital is a health care provider. RCW 7.70.020(3); Miller v. Jacoby, 145 Wn.2d 65, 72, 33 P.3d 68 (2001). And, certainly, in-patient post-operative nursing care is health care. See, e.g., Osborn, 80 Wn.2d at 206.
Osborn is not persuasive authority for Mr. Greenberg's position. First, it predates the enactment of chapter 7.70 RCW. And the decision reflects an era when hospital liability was entirely vicarious, through a claim against a physician. In Osborn, for example, the hospital had been summarily dismissed because the doctor had not been negligent. Osborn, 80 Wn.2d at 204. The reviewing court reversed the dismissal, holding that a hospital owes its patients a duty independent of the doctor's duty. Id. at 205-06. Mr. Osborn was medicated. The hospital staff could not blindly rely on his doctor's authorization of the previous day that he could get out of bed. It had a duty to evaluate his physical condition before leaving him alone with no rail. Id. at 205. Without benefit of chapter 7.70 RCW, the court based this duty in the hospital licensing statute, chapter 70.41 RCW, which makes hospitals responsible for patient safety. Id. at 204-05.
The main thrust of Mr. Greenberg's argument on appeal is that Osborn and, accordingly, chapter 70.41 RCW should control here.
The purpose of the licensing statute, chapter 70.41 RCW, is to uphold minimum standards for hospital construction, maintenance, and operation. RCW 70.41.010. It sets out a scheme of state licensing and inspection of hospital facilities. RCW 70.41.030. It requires hospitals to maintain the standards necessary to provide safe and adequate care and treatment. RCW 70.41.030. Enforcement is the responsibility of the department of health. RCW 70.41.005, .040. The department of health acts on public complaints and it can shut down unlicensed hospitals by means of an injunction. RCW 70.41.155, .330, .160. The quality of medical care is not the focus of this licensing scheme. RCW 70.41.180.
And Mr. Greenberg's complaint clearly alleges a health care failure. He says Deaconess breached the standard of care expected of a reasonably prudent hospital in the same or similar circumstances when its 'nursing, healthcare and medical staff' were negligent in evaluating his physical and mental condition. CP at 5. This is the chapter 7.70 RCW legal standard for a health care provider. The court was correct. Chapter 7.70 RCW is the controlling law.
Mr. Greenberg Provided a Competent Affidavit
Mr. Greenberg next argues that, even under chapter 7.70 RCW, he did not need an expert opinion to meet his burden under CR 56 and avoid summary dismissal. And arguably, a fall out of bed is the sort of event a jury can assess without the help of an expert. But we need not resolve the issue because Mr. Greenberg satisfied his burden. He produced a competent expert witness in the person of Nurse Hunter.
A competent expert must possess such knowledge, skill, experience, training, or education as will assist the trier of fact. ER 702; Colwell, 104 Wn. App. at 612. A nurse may possess the education and skill to testify to the standard of nursing care. Colwell, 104 Wn. App. at 613. Nurse Hunter was competent to express an opinion on the quality of nursing care here.
The judge considered Nurse Hunter's affidavit but found that 'the positions taken therein are primarily in the nature of a legal conclusion rather than a technical analysis of the circumstances of the injury at issue.' CP at 82.
We read her affidavit a bit differently. Nurse Hunter's declaration clearly states the general legal duty: 'A nurse and/or hospital staff member is to exercise the care that a reasonably prudent person would exercise under the same circumstances given the patient's condition.' CP at 71-72. More specifically, Nurse Hunter says: 'The standard of care and duty owed to a patient requires that a nurse and/or hospital staff member provide care and attention to their patients as that patient's mental and physical condition requires and warrants to maintain their safety.' CP at 71. She further states the medical practices currently employed to maintain the legal standard, in light of Mr. Greenberg's physical condition and his medications: 'Given his medical condition and state of disorientation due to medication, it would be necessary and prudent to leave the bed rails up after surgery and maintain the bed rails in an up and locked position when Mr. Greenberg was not being attended to in his hospital bed.' CP at 71.
Certainly, affidavits containing conclusory statements as to causation without adequate factual support are insufficient to defeat a motion for summary judgment. CR 56(e). But an affidavit is sufficient if it creates an issue of fact for trial. CR 56(e); Young v. Key Pharms., Inc., 112 Wn.2d 216, 227, 770 P.2d 182 (1989). The weight of the burden of proof to defeat summary judgment is the same as to prevail at trial. Alpine Indus. Computers, Inc. v. Cowles Publ'g Co., 114 Wn. App. 371, 389, 57 P.3d 1178, 64 P.3d 49 (2002). The expert's opinion can be on a more probable than not basis, so long as it appears to the trial court that the sum total of the medical evidence is such that the jury will not have to resort to speculation or conjecture as to the causal relationship. McLaughlin v. Cooke, 112 Wn.2d 829, 837, 774 P.2d 1171 (1989).
Nurse Hunter's affidavit was sufficient to create an inference in favor of Mr. Greenberg on the elements of duty and breach. And it was, therefore, sufficient to defeat a motion for summary judgment on the standard of care issue.
The authorities cited by Deaconess are not helpful. In Guile v. Ballard Community Hospital, a physician's affidavit recites the plaintiff's medical complications followed by a general and conclusory opinion that the problems resulted from the defendant's failure to adhere to the standard of care. Guile v. Ballard Comty. Hosp., 70 Wn. App. 18, 25, 27, 851 P.2d 689 (1993). In Theonnes v. Hazen, an accident reconstruction expert did not state sufficient facts to take the case to a jury. Theonnes v. Hazen, 37 Wn. App. 644, 681 P.2d 1284 (1984). The affidavit said the driver could have avoided the accident at a speed of 30 m.p.h. instead of 42 m.p.h. Id. at 645. We held that this was conclusory and irrelevant. Excessive speed was not the proximate cause of the collision and also the opinion was unsupported by any facts. Id. at 648-49. The driver had the right of way and could not have avoided the collision even at the lawful speed. Id. at 648.
But here, Nurse Hunter's declaration was sufficiently specific and fact-oriented to create an inference in favor of Mr. Greenberg on the essential elements of his claim. And Mr. Greenberg did not have to prove the extent of his damages before trial. Whether the alleged rotator cuff injury was fresh, chronic, aggravated, or nonexistent is for a jury to decide. Hartley v. State, 103 Wn.2d 768, 777-78, 698 P.2d 77 (1985).
HOLDING
The trial court erroneously ruled that Mr. Greenberg had not established a triable issue of fact. Certainly questions remain about the degree of Mr. Greenberg's disorientation, the manner in which the nurses evaluated his condition, whether the hospital departed from reasonable prudence and its own protocols, and the nature and extent of Mr. Greenberg's injuries and their relationship to any negligence. These disputed facts all refer to the question of whether the standard of care was breached under the particular circumstances. They are matters for the jury in a health care negligence case. Osborn, 80 Wn.2d at 205-06.
We reverse the order of summary judgment and remand for trial.
KATO, J., and BROWN, J., concur.