Opinion
No. 61872-5-I.
September 14, 2009.
Appeal from the Superior Court, Snohomish County, No. 06-2-08904-7, Kenneth L. Cowsert, J., entered June 12, 2008.
Reversed and remanded by unpublished opinion per Schindler, C.J., concurred in by Cox and Ellington, JJ.
David B. Jacobs appeals summary judgment dismissal of his lawsuit against Compass Health alleging breach of the standard of care in providing mental health treatment and services and in failing to hospitalize him. Because there are material issues of fact as to whether Compass Health negligently misdiagnosed and treated Jacobs, negligently failed to prescribe the antipsychotic medication Clozaril or administer plasma tests, and negligently failed to hospitalize him, we reverse and remand for trial.
FACTS
David B. Jacobs is 48 years old. He has suffered from chronic paranoid schizophrenia and a seizure disorder since he was 18. Jacobs has a history of auditory hallucinations, paranoia, and delusions. Jacobs quickly decompensates when he does not take his medications. In the past 30 years, Jacobs has been hospitalized approximately 15-20 times.
When Jacobs moved from California to Washington in July 2002, he went to Compass Health, a community health care agency in Everett, to receive mental health treatment and services. In August 2001, Jacobs met with Compass Health nurse practitioner, Joanne Sprunger. Sprunger performed a mental status exam of Jacobs and reviewed his medical history. Sprunger noted that Jacobs
has residual psychotic symptoms and very clear thought disorder. He is currently on Clozaril, which he would have only received after the failure of other medications. He has been fairly stable on his current medications, with only 2 brief hospitalizations in the past 5 years, one for a day, and the other for a week. He behaves like a very chronic schizophrenic client.
Sprunger diagnosed Jacobs with chronic paranoid schizophrenia with a history of seizures. Sprunger continued to prescribe Clozaril for schizophrenia and Depakote for seizures, with monitoring for both medications. Clozaril is a potent antipsychotic medication, used to treat paranoid schizophrenia. Sprunger explained the possible side effects of the medications to Jacobs.
The generic name for Clozaril is clozapine. The parties use these names interchangeably in the record and their briefs.
Jacobs was also given prescriptions for Elavil and Altran for anxiety.
Beginning in November 2002, Compass Health assigned Melissa Brady as Jacobs's case manager. Brady met with Jacobs once a month. In 2003, Jacobs was frequently overwhelmed by his paranoia and would voluntarily admit himself to crisis care at Compass Health. In July 2003, Jacobs agreed to meet with Brady twice instead of once a month.
Compass Health offers crisis beds for clients to use voluntarily if they need a place to stay or respite.
On September 1, 2004, Jacobs told Sprunger that he had not taken his medications as prescribed for the past two years. Jacobs said he would only take the medications for four to five days before his blood tests. Sprunger told Jacobs that it was dangerous to go on and off Clozaril. Jacobs agreed to be more forthcoming with his case manager about the medications he was taking.
Jacobs moved back to California in the middle of September. On September 17, Jacobs returned to the San Mateo Medical Center for psychiatric care. Jacobs told the doctor that he was taking Clozaril and Depakote three to four days a week. Jacobs reported experiencing intense paranoia and auditory hallucinations, and said that he had not taken his medication for a few days.
The San Mateo Medical Center Psychiatric Discharge Summary (the Discharge Summary) includes notes regarding conversations the San Mateo Doctor had with Compass Health concerning Jacobs's treatment and states that, "His psychiatrist there is Dr. Joanne Sprunger. . . ." The Discharge Summary describes conversations with Jacobs's case manager, Melissa Brady, and his psychiatrist "Dr. Joanne Sprunger." The Discharge Summary states that Dr. Sprunger
'indicated that she had actually pushed for monotherapy with either Clozaril or Zyprexa, but David had refused. He basically had been continued on identical medications that those he was transferred on from California 3 years ago. He has tended to be noncompliant with Clozaril as he wants to stay up at night, so she felt that Zyprexa monotherapy would likely be the best plan to have a less sedating effect.'
Based on his conversations with "Dr. Sprunger," the San Mateo doctor was "very reluctant to continue him on Clozaril." The doctor discontinued the prescription for Clozaril and "elected to go with Zyprexa monotherapy." An Addendum to the Discharge Summary states that "[w]ith regard to client's recent discontinuation of Clozaril, he will need to follow up CBC to ensure that his blood counts remain stable even though he has been off of this agent for a number of days prior to discharge."
In early October, Jacobs returned to Everett and lived with his twin sister Denise Finden. Upon his return, Jacobs resumed receiving mental health treatment and services from Compass Health. On October 13, Jacobs met with Sprunger. Sprunger prescribed Zyprexa instead of Clozaril. Sprunger's notes state, "I can't, in good conscience, restart Clozaril, knowing now that he goes off on it."
Finden said that, after returning from California, Jacobs was exhibiting increasing signs of paranoia and delusions and was functioning "very poorly." Finden was "extremely concerned as David was decompensating even though I supervised his taking his medications."
In the middle of November, Jacobs moved into an apartment in a building owned and operated by Compass Health. Sprunger noted that Jacobs continued to be "quite symptomatic" since going off Clozaril and was easily distracted and hearing voices. In December, Finden called Compass Health on two different occasions to report that Jacobs was not taking his medications and was the worst she had ever seen him. The apartment manager also called Compass Health to tell Brady that Jacobs was lying on the floor, complaining that there were hundreds of bugs on the ground.
On December 15, Brady met with Jacobs and asked whether he would be willing to come in daily for medications. Jacobs refused to do so. Brady said that Jacobs was extremely paranoid and delusional and he told her that people were coming through the ceiling and walls of his apartment to get him. When Jacobs decompensates, he also fears he is being hounded by Nazis and tries to act like a Nazi by shouting, cursing, and speaking only German.
On January 6, 2005, Sprunger met with Jacobs. Jacobs acted extremely paranoid and responded to Sprunger's questions in German. Sprunger told Jacobs that if he did not take his medications, he would have to be hospitalized. On January 6, Sprunger and Finden both called Brady to say that Jacobs was not doing well and appeared to be off his medications. Brady tried to call Jacobs twice and left voicemail messages, asking him to call her.
On January 14, Brady went to Jacobs's apartment. The apartment manager let Brady into Jacobs's apartment. Jacobs did not have any food in his apartment. Jacobs told Brady that he did not want to take his medications. Brady filled out a crisis alert form, but did not think that Jacobs met the criteria for grave disability.
On January 15, a neighbor called 911 after Jacobs started yelling at people in the building. Jacobs was forcibly taken to Providence Hospital and later transferred to Stevens Hospital. Jacobs remained at Steven Hospital until February 1, 2005. Stevens Hospital prescribed Zyprexa, but then changed his medication to Risperdal. The doctors at Stevens Hospital also prescribed Depakote because the medication appeared to have worked well in the past. Finden said that after his release from Stevens Hospital, Jacobs continued to "show signs of being paranoid and delusional."
On February 2, Brady met with Jacobs. Brady said that Jacobs was very paranoid and agitated about being taken to Stevens Hospital. Jacobs refused to go to Compass Health for daily medications, but he agreed to come in for weekly medication monitoring and to continue meeting with Brady twice a month.
On February 17, Finden called Compass Health to report that Jacobs was not doing well and was not taking his medications. On February 18, Brady went to Jacobs's apartment, but Jacobs would not answer the door.
On February 23, Finden found Jacobs on the floor of his apartment "convulsing." Finden took Jacobs to Providence Medical Center. Jacobs was critically ill and suffering from renal failure, abnormal liver function, and hypernatremia. The doctors believed Jacobs "had likely been convulsing for two to three days" and "It is probable that he would not have survived had he not received medical intervention." Jacobs suffered traumatic brain injury from the seizure. After his seizures, Jacobs no longer used Compass Health for treatment and services.
In March 2006, Dr. Kennedy M. Cosgrove diagnosed Jacobs with refractory schizophrenia and prescribed Clozaril. According to Dr. Cosgrove, Clozaril is the only medication approved by the Federal Drug Administration (FDA) for refractory schizophrenia. Plasma tests are performed every two weeks to verify that Jacobs is receiving the appropriate therapeutic concentration of Clozaril. Jacobs has not been hospitalized for psychiatric symptoms since March of 2006.
In June 2006, Jacobs sued Compass Health. Jacobs alleged that Compass Health failed to meet the standard of care in providing mental health treatment and services between November 2004 and February 2005 and failing to hospitalize him, resulting in the injuries he suffered.
Compass Health filed a motion for summary judgment dismissal. Compass Health argued that it met the standard of care and no evidence supports Jacobs's claim that Compass Health negligently caused his injuries. Compass Health submitted the declaration of Dr. David Louis Dunner, stating that Compass Health met the standard of care in treating Jacobs.
In opposition to summary judgment, Jacobs relied on the declarations of Dr. Philip G. Lindsay and Dr. Gary R. Schuster to argue that Compass Health did not meet the standard of care in treating him or in providing mental health services. Dr. Lindsay testified that Compass Health did not properly diagnose or treat Jacobs with refractory schizophrenia. Dr. Lindsay states Clozaril is the only prescription that treats refractory schizophrenia and that Compass Health's failure to prescribe Clozaril or perform plasma tests to determine whether Jacobs was receiving the minimum therapeutic levels of Clozaril needed for therapeutic relief, breached the standard of care.
Dr. Gary R. Schuster testified that Jacobs suffered a seizure because of the absence of Depakote. Based on his reviews of the medical records, and the ongoing concerns of decompensation that were expressed to the Compass Health case manager in February 2005, Dr. Schuster concluded that Compass Health should have hospitalized Jacobs "immediately since there was a likelihood of severe harm including death if he remained off Depakote for longer than two or three days." In Dr. Schuster's opinion, Compass Health's failure to hospitalize Jacobs breached the standard of care.
In reply, Compass Health submitted a supplemental declaration from Dr. Dunner. In the supplemental declaration Dr. Dunner does not respond to Dr. Lindsay's opinion that Compass Health failed to properly diagnose Jacobs. Dr. Dunner only addresses the question of whether plasma tests were necessary. According to Dr. Dunner, there was no medical reason to perform plasma tests because Jacobs was not on Clozaril between November 2004 and February 2005.
In response, Jacobs submitted a supplemental declaration from Dr. Lindsay stating that "Ms. Sprunger's decision to discontinue the clozapine failed to meet the standard of care. Ms. Sprunger should have commenced the clozapine medication regimen at that time." Dr. Lindsay also states that in his opinion, Jacobs decompensated in the summer of 2004 because he was not receiving a therapeutic level of Clozaril which resulted his noncompliance in taking the medications. The court granted Compass Health's motion for summary judgment and dismissed Jacobs's lawsuit.
ANALYSIS
Jacobs asserts the court erred in granting summary judgment because there are material issues of fact as to whether Compass Health negligently misdiagnosed and treated him, failed to properly prescribe Clozaril, failed to administer plasma tests, and negligently failed to hospitalize him before his seizure on February 21, 2005. Jacobs asserts that Compass Health treated him for paranoid schizophrenia instead of refractory paranoid schizophrenia, causing decompensation, which resulted in his noncompliance in taking the prescribed medications.
The standard of review for an order of summary judgment is de novo. Castro v. Stanwood Sch. Dist. No. 401, 151 Wn.2d 221, 224, 86 P.3d 1166 (2004). Summary judgment is properly granted if there are no material issues of fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We view the facts and reasonable inferences in a light most favorable to the nonmoving party. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). A fact is material if the outcome of the litigation depends on it, in whole or in part. Samis Land Co. v. City of Soap Lake, 143 Wn.2d 798, 803, 23 P.3d 477 (2001). Summary judgment is appropriate only if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). Where competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Kuyper v. State, Dep't of Wildlife, 79 Wn. App. 732, 739, 904 P.2d 793 (1995).
Viewing the facts in the light most favorable to Jacobs, there are material issues of fact about whether Compass Health misdiagnosed Jacobs, whether Compass Health should have prescribed Clozaril when Jacobs returned from California, and whether the failure to prescribe Clozaril caused Jacobs to decompensate and resulted in the injuries he suffered.
Dr. Lindsay testified that Compass Health failed to properly diagnose Jacobs with refractory schizophrenia, and Clozaril is the only effective medication the FDA has approved for refractory schizophrenia. Dr. Lindsay also testified that Jacobs's decompensation was "at least in part caused by Compass Health's failure to properly manage his Clozaril medication."
Compass Health argues that "'refractory'" means "'treatment resistant.'" However, the only evidence regarding the definition of "refractory" is Dr. Lindsay's unrebutted testimony. Compass Health also argues that the diagnosis is irrelevant because "Compass Health, and other health care providers, were in fact prescribing Clozaril." But as Dr. Lindsay stated in his declaration, "A patient with refractory schizophrenia requires a minimum clozapine plasma concentration of 350 ng/mL for therapeutic relief." Dr. Lindsay also states, "Mr. Jacobs's tendency to periodically decompensate is directly attributable to the failure of Compass Health to diagnose him with refractory schizophrenia and its failure to provide him with therapeutic level of clozapine." We conclude there are material issues of fact concerning whether insufficient levels of Clozaril caused Jacobs to be noncompliant in taking the prescribed medications.
Compass Health also argues that Dr. Lindsay's testimony is irrelevant and speculative because the only time period at issue is November 2004 to February 2005. Compass Health contends that because any misdiagnosis occurred before November 2004, its treatment of Jacobs before then is not at issue. However, Compass Health ignores the evidence of Sprunger's involvement in the decision made by the doctor at the San Mateo Clinic to take Jacobs off Clozaril. There are also material issues of fact about whether Compass Health was negligent in failing to prescribe Clozaril to Jacobs after he returned to Everett. Because Jacobs was clearly not doing well and decompensating when he returned from San Mateo, in Dr. Lindsey's opinion, "Ms. Sprunger should have commenced the clozapine medication regimen at that time."
There are also material issues of fact regarding the plasma tests. The failure to administer plasma tests supports Jacobs's argument that Compass Health negligently monitored his treatment to determine the appropriate therapeutic level when he was taking Clozaril. Dr. Lindsay states that, "The failure of Compass Health to administer the clozapine plasma test to Mr. Jacobs clearly failed to meet the standard of care of a mental health provider and resulted in his injuries."
As a separate and independent ground for reversal, Jacobs contends there are material issues of fact as to whether Compass Health negligently failed to hospitalize him before his seizure on February 21, 2005. Jacobs also contends there are material issues of fact about whether he was "gravely disabled" in the days leading up to the seizure and whether Compass Health negligently failed to hospitalize him under RCW 71.05.150.
RCW 71.05.150(1) provides in pertinent part:
When a designated mental health professional receives information alleging that a person, as a result of a mental disorder . . . is gravely disabled; the designated mental health professional may, after investigation and evaluation of the specific facts alleged and of the reliability and credibility of any person providing information to initiate detention, if satisfied that the allegations are true and that the person will not voluntarily seek appropriate treatment, file a petition for initial detention.
RCW 71.05.020(17) defines "gravely disabled" as:
a condition in which a person, as a result of a mental disorder: (a) Is in danger of serious physical harm resulting from a failure to provide for his or her essential human needs of health or safety; or (b)
manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care as is essential for his or her health or safety.
Viewing the evidence in the light most favorable to Jacobs, the record shows that because he was decompensating and not taking his medications, he was in danger of serious physical harm in the months leading up to the February 21 seizure. In December, Finden called Compass Health twice and told Brady that Jacobs "has not been taking his medications" and was the worst she had ever seen him. Finden said she was very worried about Jacobs's mental state and that he was showing signs of increased paranoia and delusions. Jacobs's apartment manager was also concerned and called Brady to tell her that Jacobs was lying on the floor, complaining that there were hundreds of bugs on the ground and when the apartment manager tried to tell Jacobs that there were no bugs, he refused to believe her.
On January 14, Jacobs told Brady that he did not want to take his medications and did not have any food in his apartment. Brady filled out a crisis alert form, but did not believe Jacobs met the criteria for grave disability. On January 15, Jacobs was forcibly taken to Providence Hospital and was later transferred to Stevens Hospital, where he remained until February 1, 2005. After leaving Stevens Hospital, Jacobs continued to show signs of paranoia, agitation and that he was decompensating. On February 17, Finden called Compass Health to report that Jacobs was not taking his medications and that he was scared to see Brady because he thought she would "punch him in the stomach."
Dr. Gary R. Schuster testified that Jacobs suffered a seizure because of the absence of the prescribed medication Depakote in his system. Dr. Schuster stated that based on Jacobs's history of seizures, his recent hospitalization, and Finden's call to Compass Health on February 17, "it was incumbent upon Compass Health to have [Jacobs] hospitalized immediately since there was a likelihood of severe harm including death if he remained off Depakote for longer than two or three days." Dr. Schuster testified that "Compass Health's failure to seek immediate medical attention for [Jacobs] upon notification from his sister that he was non-compliant with his medications and was delusional, failed to meet the standard of care in the medical community." Dr. Schuster stated that this delay caused Jacobs to "suffer a prolonged seizure which resulted in permanent injuries." In sum, there are also material issues of fact regarding whether Jacobs met the definition of "gravely disabled" under RCW 71.05.020(17) and whether Compass Health was negligent in failing to have Jacobs hospitalized.
We reverse summary judgment dismissal of Jacobs's lawsuit against Compass Health and remand for trial.