Opinion
No. 63973-1-I.
October 11, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Whatcom County, No. 07-2-02163-5, James H. Allendoerfer, J. Pro Tem., entered August 11, 2009.
Affirmed by unpublished opinion per Ellington, J., concurred in by Cox and Schindler, JJ.
After being detained for a mental health evaluation, Jennifer Rose Ross filed suit alleging assault, battery, false imprisonment and malicious prosecution. The court dismissed the claims on summary judgment and denied Ross's motion to strike one of the defense declarations.
The claims are barred by RCW 71.05.120, which grants immunity to mental health care professionals performing their duties in good faith and without gross negligence. The claims also fail because they arise out of health care, and Ross presented no evidence of the standard of care or any violation thereof as required by chapter 7.70 RCW. Finally, the court did not err regarding its receipt of evidence. We affirm.
BACKGROUND
In September 2005, Ross went to the St. Joseph Hospital emergency room in Bellingham seeking treatment for cold symptoms and depression. Her mother and son accompanied her. After a long wait, she was taken to see Dr. Jeffrey Ries. She explained her symptoms and described certain life events she thought were contributing to her depression, including unemployment, homelessness, a verbally abusive husband, and fear for her own safety. The parties dispute whether she implied that she would hurt herself. Ross understood that Dr. Ries would arrange for her to speak with a mental health care specialist that same evening.
Sometime in the next hour, Ross walked out of the hospital and headed toward the parking lot, leaving her mother and son behind. At Dr. Ries' direction, Nurse Robert Johnson approached and told her she should not leave. He put his arm up to stop her. Ross resisted, causing them both to fall to the ground. They struggled, and Ross bit Johnson twice. Johnson and other St. Joseph staff eventually secured Ross to a gurney using restraints.
The State brought criminal charges against Ross for the assault on Johnson, but the charges were dropped.
Ross sued PeaceHealth (which does business as St. Joseph Hospital), Nurse Johnson, and Dr. Ries alleging assault, battery, false imprisonment, and malicious prosecution. Johnson counterclaimed for assault, battery, and infliction of emotional distress.
PeaceHealth filed motions for summary judgment seeking dismissal of all Ross's claims on grounds including immunity and failure to establish a violation of the standard of care. Johnson also sought summary judgment on liability for his counterclaims. Ross responded. In reply, PeaceHealth and Johnson submitted additional evidence. Ross moved to strike the declaration as untimely.
The court denied the motion to strike, granted summary judgment dismissing Ross's claims, and denied summary judgment with respect to Johnson's counterclaims.
The parties stipulated to dismissal of Johnson's claims contingent on the outcome of an appeal by Ross.
Ross appeals the denial of her motion to strike and the dismissal of her claims.
Ross challenged two statutory requirements. We need not address these issues as they have been resolved in Ross's favor by the Washington Supreme Court. Waples v. Yi, 169 Wn.2d 152, 155, 234 P.3d 187 (2010) (90-day notice of suit requirement under RCW 7.70.100, struck down under separation of powers doctrine); Putnam v. Wenatchee Valley Medical Center, P.S., 166 Wn.2d 974, 977-78, 216 P.3d 374 (2009) (certificate of merit requirement under RCW 7.70.150 struck down under separation of powers doctrine).
DISCUSSION
We apply the usual standard of review on summary judgment. We review denial of a motion to strike for abuse of discretion. A court abuses its discretion only if Page 4 its decision is manifestly unreasonable or based on untenable grounds or untenable reasons.
This court reviews summary judgment de novo. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). Summary judgment is affirmed when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.; CR 56(c). All facts and reasonable inferences are considered in the light most favorable to the nonmoving party, and summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion. Id.
See Southwick v. Seattle Police Officer John Does 1-5, 145 Wn. App. 292, 301-02, 186 P.3d 1089 (2008).
In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
Immunity Under RCW 71.05.120 (1)
Ross contends the trial court erred in ruling that PeaceHealth is immune from suit under RCW 71.05.120(1). We disagree.
RCW 71.05.120(1) provides that mental healthcare professionals at an evaluation and treatment facility are immune from tort liability when performing their duties pursuant to the statute, including a decision to detain a person for evaluation, so long as these duties are performed "in good faith and without gross negligence."
RCW 71.05.050 provides:
[I]f the professional staff of any public or private agency or hospital regards a person . . . as presenting, as a result of a mental disorder, an imminent likelihood of serious harm, . . . they may detain such person for sufficient time to notify the county designated health professional of such person's condition.
This accurately describes the situation here. St. Joseph Hospital is a treatment and evaluation facility licensed by the State. Ross went to the hospital seeking treatment for depression. She reported being depressed for over a year, constantly crying, fearing for her own safety, homelessness, unemployment and being in an unstable and verbally abusive relationship. These statements, made to Dr. Ries and others, supported a good faith, reasonable belief that Ross posed an imminent danger to herself. Under RCW 71.05.050, PeaceHealth detained Ross to obtain an evaluation. Because there is no evidence to rebut PeaceHealth's good faith and no evidence of gross negligence, PeaceHealth is immune from liability in this lawsuit.
Dr. Ries testified Ross made statements about feeling suicidal. Ross denied making those statements.
A determination of good faith may be resolved on summary judgment where where no reasonable minds could differ on the question. Morris v. Swedish Health Servs., 148 Wn. App. 771, 778, 200 P.3d 261 (2009).
Ross fails to include in her briefs any substantive arguments addressing her claim for malicious prosecution. We therefore do not address the issue. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); RAP 10.3(a).
Relying on case law concerning involuntary commitment proceedings under RCW 71.05.150, Ross contends immunity should not apply because there was "no emergency or judicial finding of probable dangerousness." This argument is inapt. First, the cases do not help Ross because involuntary commitment proceedings were never initiated and Ross was not committed. Second, a finding of probable dangerousness is not a prerequisite to detention but rather follows from the initial evaluation, which Ross sought to frustrate.
See In re Harris, 98 Wn.2d 276, 279, 654 P.2d 109 (1982); In re LaBelle, 107 Wn.2d 196, 201, 728 P.2d 138 (1986); In re Detention of Stout, 159 Wn.2d 357, 370, 150 P.3d 86 (2007).
Appellant's Br. at 36.
"Commitment" under RCW 71.05.020(4) means "the determination by a court that a person should be detained for a period of either evaluation or treatment, or both, in an inpatient or less restrictive setting."
Evidence of Standard of Care Under Chapter 7.70 RCW
To maintain a suit involving injury from health care, chapter 7.70 RCW requires that a plaintiff establish that the injury resulted from the failure of the health care provider to follow the accepted standard of care. With rare exceptions, this requires expert testimony. Thus, Ross needed to establish that the defendants' conduct did not comport with the accepted standard of care. Ross presented no evidence establishing the standard of care or its violation.
RCW 7.70.030.
Orwick v. Fox, 65 Wn. App. 71, 86-87, 828 P.2d 12 (1992); see also Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989); Noel v. King Cty., 48 Wn. App. 227, 231, 738 P.2d 692 (1987) (plaintiff must generally establish genuine issue of fact by expert testimony to withstand properly supported motion for summary judgment).
Ross contends, however, that her complaint alleged intentional torts, not negligence, and such claims are not governed by chapter 7.70 RCW. Ross is incorrect. By its terms, chapter 7.70 RCW applies to all actions for injuries resulting from health care, whether based on negligence or intentional tort. Since Ross's intentional tort claims are for injuries from health care, chapter 7.70 RCW applies.
RCW 7.70.030; Orwick, 65 Wn. App. at 85-85.
Untimely Submissions
Finally, Ross contends the trial court abused its discretion when it denied her "motion to strike untimely submissions." It is somewhat unclear to what submission Ross refers, but we assume from the verbatim report of proceedings that the offending submission was either the Second Declaration of Kim Holmes in Support of Reply Re: Defendants' Motion for Summary Judgment filed November 10, 2008 or the Supplemental Declaration of Kim Holmes in Support of Reply Re: Defendants' Motion for Summary Judgment filed December 23, 2008. Since the court below did not consider the supplemental declaration, we address only the second declaration.
Washington Rules of Civil Procedure provide that "[t]he moving party may file and serve any rebuttal documents not later than 5 calendar days prior to the hearing." PeaceHealth and Johnson filed the second declaration on November 10, 2008. The hearing on summary judgment was originally set for November 14, 2008, so the second declaration was untimely under the rule.
However, the trial court has discretion to accept or reject an untimely declaration. Because the hearing on the motion for summary judgment was postponed for two months, from November 14, 2008 to January 14, 2009, we see no prejudice to Ross's ability to prepare her response. The court did not abuse its discretion when it denied Ross's motion to strike.
See Southwick, 145 Wn. App. at 301.
The denial of the motion to strike and the grant of summary judgment of dismissal are affirmed.
WE CONCUR: