Opinion
No. 32960-3-II.
June 14, 2006.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-2-01855-0, Gary Tabor, J., entered March 9, 2005.
Counsel for Appellant(s), Michael T. Schein, Michael T. Schein Attorney, 7023 20th Ave NW, Seattle, WA 98117-5618.
Counsel for Respondent(s), Meredith Jill Hillman, Kingman, Peabody, Fitzharris, Ringer P, 505 Madison St Ste 300, Seattle, WA 98104-1123.
Rebecca Sue Ringer, Kingman, Peabody, Fitzharris, Ringer P, 505 Madison St Ste 300, Seattle, WA 98104-1123.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Quinn-Brintnall, C.J., and Houghton, J.
Douglas Prestrud appeals a summary judgment dismissing his medical malpractice, abuse of a vulnerable adult, and negligent supervision claims against Dr. Vivian Blanco and Group Health Cooperative. Because Prestrud failed to present sufficient evidence of a prima facie case of malpractice or abuse of a vulnerable adult, we affirm.
FACTS
Dr. Vivian Blanco, a licensed family practice physician, was one of several physicians treating Group Health patient Yvonne Griffin. Yvonne was 85 years old when she died from liver cancer.
Douglas Prestrud was married to Yvonne Griffin's daughter, Suzanne Griffin Prestrud. Yvonne lived with Suzanne and Prestrud for over four years before her death. Yvonne received in-home hospice care during the six months before she died on September 15, 2001.
Although Prestrud alleged nine causes of action, he appeals only the dismissal as to his claims for malpractice, abuse of a vulnerable adult, and failure to control.
Prestrud, an attorney, represented himself in filing the complaint and responding to the defendants' motions for summary judgment.
In his complaint, Prestrud alleged that Blanco and Group Health were liable for 'neglect of a vulnerable adult as in . . . RCW 74.34.020(13)(e),' because Blanco had a duty to exercise the level of care of a reasonable and prudent physician, to 'alleviate his emotional and spiritual distress associated with the death of a family member.' Clerk's Papers (CP) at 10 (citing RCW 70.127.010(10)(b)). He alleged that by engaging in a sexual relationship with him and Suzanne, Blanco 'utterly disregarded [his] welfare, which she had a duty to foster and protect.' CP at 10.
Prestrud cites to RCW 70.127.010(10)(b), which does not exist. It is clear from his argument that he means to cite RCW 70.127.010(13).
In his claim for 'negligent supervision,' Prestrud alleged that Group Health knew and had reason to know that Blanco posed a danger to clients. CP at 11-12. He claimed that she was young — age 32 — and had 'little or no experience at providing in-home or hospice care.' CP at 12. He emphasized that Group Health supervisors knew she was a 'practicing Lesbian,' which Prestrud concluded 'is an increased-risk factor for transgression and personality disorders.' CP at 12.
In his medical malpractice claim, Prestrud alleged that by sexualizing her relationships with him and his wife 'while she was acting as his physician, and stealing his wife, Dr. Blanco breached her duty of care to [Prestrud].' CP at 14.
Prestrud alleged that as a direct result of Blanco's and Group Health's negligence and breach of duties, he has been 'severely and permanently injured and damaged.' CP at 21. He sought damages for medical expenses, past and future; pain and suffering; 'severe and permanent impairment of [Prestrud's] ability and capacity to enjoy life, past and future'; permanently increased susceptibility to depression; anxiety; humiliation; shame; wounded pride; difficulty in trusting; nightmares; 'severe and permanent impairment of spousal consortium'; loss of wages; and impairment of wage earning capacity. CP at 21.
Blanco and Group Health moved for summary judgment, arguing that although Prestrud alleged numerous theories of liability, he essentially alleged two causes of action, alienation of affections and medical malpractice. They contended that both failed because Washington State abolished claims for alienation of affections and Blanco never provided medical care to Prestrud and, thus, owed him no duty.
In opposition to the motion for summary judgment, Prestrud declared that Blanco trained him and Suzanne as family caregivers for Yvonne and that Blanco counseled him and Suzanne about adjusting to Yvonne's decline in health and eventual death.
In addition, Prestrud states that between May and December 2001, Blanco examined and treated him for neck and back problems, sore knees, a forearm hematoma, and an upper-respiratory infection. Prestrud concedes that she charged no fee and the services are not documented.
Prestrud states that Blanco engaged in 'courting' or 'grooming' behavior with him and Suzanne; that '[w]hile Dr. Blanco was in our house at all hours in her professional capacity, her courting behaviors included hugging, kissing, massaging, cooking, flirting, going on long walks, etc., etc.'; that Blanco 'offered to improve our marriage, and to teach me some lesbian methods about how better to please Suzy sexually; but she never did so'; and that:
Then Dr. Blanco offered to, and did, provide informal marital counseling for us separately. At about 10:00 a.m. on Monday, November 21, 2001, I arrived at Dr. Blanco's house for that express purpose. That session lasted about an hour and a half and was a complete failure, mainly because Dr. Blanco was partial to Suzy and herself.
CP at 69, 70, 71.
Prestrud does not directly declare in his affidavit that he and Blanco had sexual relations. Rather, he says that Blanco's courting behavior led to intimate social relationships; that his psychologist told him that 'Dr. Blanco's seductions were not favors but betrayals'; that eventually 'the idea of a m'nage a trois was in the air'; and that '[s]oon after sexualizing her relationships, Dr. Blanco ceased showing concern for my welfare.' CP at 68, 70.
Prestrud also submitted an affidavit from Dr. Olsen who stated that he is Prestrud's attending physician. He also said:
It is my professional opinion that Dr. Vivian Blanco established a doctor-patient relationship with Mr. Prestrud by engaging in in-home hospice care for Yvonne Griffin and her immediate family and primary care-givers, Suzanne and Douglas Prestrud, Yvonne's daughter and son-in-law; and by offering diagnoses and treatment to Mr. Prestrud in addition to the psychological care, bereavement care, and training and instruction of the hospice care.
CP at 74.
Olsen further states that 'Dr. Blanco violated the standard of care of a reasonably prudent physician by engaging in sexual act(s) with Mr. Prestrud and his wife Suzanne'; that sexual contact with a patient or his/her household is forbidden by the Hippocratic Oath; that the American Medical Association's Code of Medical Ethics forbids sexual contact with patients; and that Blanco's offer of sexual succor following Yvonne's death is not a recognized treatment for bereavement. CP at 74.
Olsen states that 'Dr. Blanco's reckless behavior not only did not aid Mr. Prestrud in his grief over the loss of a family member; his grief was compounded by the subsequent loss of the monogamous love of his wife.' CP at 74. Olsen concluded that 'Dr. Blanco's reckless behavior and Mr. Prestrud's subsequent emotional distress caused Mr. Prestrud an episode of severe depression with attendant pain and suffering, and for which he continues to seek treatment.' CP at 75.
ANALYSIS
A. Summary Judgment
We review a summary judgment de novo. See Ret. Pub. Employees Council of Wash. v. Charles, 148 Wn.2d 602, 612, 62 P.3d 470 (2003) (citations omitted). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Charles, 148 Wn.2d at 612. We consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wagg v. Estate of Dunham, 146 Wn.2d 63, 67, 42 P.3d 968 (2002); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982) (citations omitted). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on having its affidavits considered at face value. Charles, 148 Wn.2d at 612 (citing Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). Instead, a response by affidavits or as otherwise provided in CR 56, must set forth specific facts showing that there is a genuine issue for trial. CR 56(e).
The moving party has the burden to show that no genuine issue of material fact exists. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). It can meet this burden by showing that there is an absence of evidence from which the nonmoving party can make out a prima facie case. Young, 112 Wn.2d at 225; see also Hash v. Children's Orthopedic Hosp. Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507 (1988).
If the moving party is a defendant and meets this initial showing, then the burden shifts to the plaintiff. Young, 112 Wn.2d at 225. If the plaintiff fails to establish the existence of an essential element of its case, "and on which that party will bear the burden of proof at trial,' then the trial court should grant the motion.' Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). "In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Young, 112 Wn.2d at 225 (quoting Celotex, 477 U.S. at 322-23).
1. Claim of Malpractice Against Blanco
Prestrud claims that Blanco breached the standard of care of a reasonably prudent health care provider when she had sexual contact with him and Suzanne and when she influenced Suzanne to move out and live with her in a sexual relationship. While he acknowledges that the Washington Supreme Court abolished the tort of alienation of affections in 1980, he maintains that he has stated an 'independent claim of malpractice against his doctor, distinct from alienation of affections.' Br. of Appellant at 18-19 (citing Wyman v. Wallace, 94 Wn.2d 99, 100, 615 P.2d 452 (1980)).
Blanco and Group Health argue that all of Prestrud's claims are barred because they arise out of a claim for alienation of affections. Prestrud counters that he is suing for sexual misconduct 'with himself in addition to his spouse'; and he is seeking direct damages for his own mental anguish, lost earnings, and medical expenses, 'rather than seeking only loss of consortium damages.' Br. of Appellant at 19 (emphasis omitted). Accordingly, he distinguishes Lund v. Caple, 100 Wn.2d 739, 675 P.2d 226 (1984), in which the Supreme Court held that a spouse could not maintain an independent action for loss of consortium damages because the suit was essentially a substitute for an alienation of affections.
(A) Distinguishing Alienation of Affections from Malpractice
The elements of a medical malpractice negligence claim are duty, breach, causation, and harm (damages). Eelbode v. Chec Med. Ctrs., Inc., 97 Wn. App. 462, 467, 984 P.2d 436 (1999) (citing Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984)).
In Washington, actions for medical malpractice are governed by chapter 7.70 RCW. Webb v. Neuroeducation Inc., P.C., 121 Wn. App. 336, 346, 88 P.3d 417 (2004) (citing RCW 7.70.010), review denied, 153 Wn.2d 1004 (2005). Under the Act, a plaintiff must establish that injury resulted from the failure of a health care provider to follow the accepted standard of care. RCW 7.70.030(1).
To establish a breach of the standard of care, a plaintiff must prove that a health care provider (1) "failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession' acting in the same or similar circumstances'; and (2) that "such failure was a proximate cause of the injury complained of." Webb, 121 Wn. App. at 346-47 (quoting RCW 7.70.040).
Accordingly, a court must answer these questions in a medical malpractice case:
(1) What is the accepted standard of care for the particular medical treatment at issue? (2) Did the health care professional meet that standard of care? (3) Did the failure to meet the standard proximately cause the plaintiff's injury? Webb, 121 Wn. App. at 347-48.
webb, 121 wn. App. at 347-48.
In contrast, the elements of the tort of alienation of affections are: "(1) an existing marriage relation; (2) a wrongful interference with the relationship by a third person; (3) a loss of affection or consortium; and (4) a causal connection between the third party's conduct and the loss." Lund, 100 Wn.2d at 745 (quoting Carrieri v. Bush, 69 Wn.2d 536, 542, 419 P.2d 132 (1966)).
In Lund, the plaintiff sued a church and its pastor, alleging that sexual relations between his wife and the pastor constituted outrageous conduct and negligent impairment of consortium. Lund, 100 Wn.2d at 741. The wife had consulted the church pastor for marital and personal counseling. Lund, 100 Wn.2d at 741. Eventually, the two began having sexual relations. Lund, 100 Wn.2d at 741. After observing that Lund was suing because of alleged sexual misconduct that interfered with his marriage, the court ruled that the case was so similar to an alienation of affections action that it was barred under Wyman. Lund, 100 Wn.2d at 747.
Nevertheless, the court clarified that its opinion 'should not be read as precluding an action against a counselor, pastoral or otherwise, in which a counselor is negligent in treating either a husband or wife.' Lund, 100 Wn.2d at 747.
Here, Prestrud argues that he has maintained a separate cause of action for malpractice against Blanco and that he does not seek damages solely for alienation of affections or loss of consortium. Instead, he claims, his damages arise out of Blanco's sexual relationship with him. We would agree if Prestrud had plainly stated in his declaration the facts of his alleged sexual relations with Blanco. But he has not. Instead, he describes their relationship in vague conclusions: the 'idea of a m'nage a trios,' grooming behavior that led to 'intimate social relationships,' and Blanco's 'sexualizing her relationships.' Such conclusory statements will not defeat a summary judgment. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988); Reed v. Streib, 65 Wn.2d 700, 707, 399 P.2d 338 (1965). Because Prestrud focuses his malpractice claim on Blanco's alleged sexual misconduct with him, he must set forth the facts of the sexual relationship to make out all the elements of the cause of action. His affidavit does not do so. The trial court did not err in granting summary judgment dismissing Prestrud's medical malpractice claim.
Prestrud does not argue a claim for malpractice based upon Blanco's alleged negligent marital counseling. Instead, he limits his argument to Blanco's alleged negligence for commencing a sexual relationship with him. Similarly, Olsen addresses only Blanco's negligence in engaging in sexual acts with Prestrud and his wife.
Olsen states that Blanco abusively utilized her position as physician and the emotional values (transference) placed in her by the Prestruds to solicit sexual gratification from the Prestruds. Thus, any possible separate claim based upon 'transference' leads back to the allegation of sexual relations.
Olsen reports in Prestrud's medical history that Blanco engaged in sexual acts with Prestrud, but the history is admissible only to help understand Olsen's diagnosis, not as proof of the facts stated. Kennedy v. Monroe, 15 Wn. App. 39, 48, 547 P.2d 899 (1976) (citing Floyd v. Dep't of Labor Indus., 68 Wn.2d 938, 416 P.2d 355 (1966)).
2. Abuse of a Vulnerable Adult
Prestrud argues that the trial court erred when it dismissed his claim for abuse of a vulnerable adult. Blanco and Group Health argue that Prestrud is unable to prove that he received health care from Blanco. Furthermore, they argue, Prestrud's claimed acts of sexual misconduct occurred after Yvonne's death; therefore, he could no longer be considered to be receiving hospice care, 'even under [his] own loose definition of hospice care recipient.' Br. of Respondent at 20.
Under the abuse of vulnerable adults statute:
[A] vulnerable adult who has been subjected to abandonment, abuse, financial exploitation, or neglect either while residing in a facility or in the case of a person residing at home who receives care from a home health, hospice, or home care agency, or an individual provider, shall have a cause of action for damages on account of his or her injuries, pain and suffering, and loss of property sustained thereby.
A 'vulnerable adult' can include a person who is receiving 'services from home health, hospice, or home care agencies licensed or required to be licensed under chapter 70.127 RCW.' RCW 74.34.020(13)(e) (emphasis added). And under RCW 70.127.010(13), 'hospice services' include 'symptom and pain management provided to a terminally ill individual, and emotional, spiritual, and bereavement support for the individual and family.' (Emphasis added.) Under the statute, 'abuse' means 'the willful action or inaction that inflicts injury, unreasonable confinement, intimidation, or punishment on a vulnerable adult.' RCW 74.34.020(2). 'Sexual abuse' includes 'any sexual contact between a staff person . . . and a vulnerable adult . . . receiving service from a program authorized under chapter 71A.12 RCW, whether or not it is consensual.' RCW 74.34.020(2)(a) (emphasis added).
Under these statutes, Prestrud, as a member of Yvonne's family, was eligible to receive 'hospice services' as emotional, spiritual, and bereavement support from Blanco. And Prestrud says Blanco provided him with bereavement counseling in her capacity as a hospice care giver. Further, Prestrud argues that 'a reasonable finder of fact could find that [he], in his highly disturbed emotional state surrounding the death of a loved one, was not competent to consent to, or resist, the predatory sexual advances of Dr. Blanco.' Br. of Appellant at 40. In addition, any sexual relationship between Blanco and Prestrud could amount to sexual abuse even if it was consensual. Thus, Prestrud claims that a jury could find that he was a vulnerable adult as contemplated by the statute.
But Prestrud's vulnerable adult claim suffers from the same defect as his malpractice claim. He has not plainly stated any of the facts surrounding his alleged sexual relationship with Blanco. Accordingly, this claim too fails.
3. Negligent Supervision
Vicarious liability imposes liability on an employer for the torts of an employee who is acting on the employer's behalf. Niece v. Elmview Group Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997). Even where an employee is acting outside the scope of employment, the relationship between employer and employee gives rise to a limited duty, owed by an employer to foreseeable victims, to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others. Niece, 131 Wn.2d at 48. This duty gives rise to causes of action for negligent hiring, retention, and supervision. Niece, 131 Wn.2d at 48. Prestrud alleges that Group Health negligently failed to control Blanco's sexual misconduct. Because Prestrud has failed to set forth a prima facie case against Blanco, Group Health is not liable for failing to control her alleged misconduct.
We affirm the summary judgment orders.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and QUINN-BRINTNALL, C.J., concur.