Analysis and Impact of Latest WA Supreme Court Medical Malpractice Decision M.N. & G.T. v MultiCare Health System, Inc.
In a 5-4 decision on January 18, 2024, the Washington Supreme Court reversed both the Court of Appeals and the Pierce County Superior Court in M.N. & G.T. v MultiCare Health System, Inc., No. 101537-2 with holdings bound to make waves in the medical malpractice field related to class action lawsuits for personal injury cases. The opinion of the five-justice majority of the Supreme Court extends the boundaries of the “legal causation” element under Chapter 7.70 RCW in determining how far the consequences of a defendant’s acts should extend in a manner which is bound to cause confusion for lower courts and practitioners moving forward. By clarifying that claims for purely emotional damages are allowed under RCW 7.70, the Court may have opened the door to many more claims that the legislature has intended.
A four-justice dissent reasons that, while the fear of potential infectious disease exposure is an undeniable injury, not all injuries have remedies at law. The majority’s new legal causation test for Chapter 7.70 RCW claims involving the brief (and ultimately unsubstantiated) fear of infectious disease transmission that has the potential to harm public health and policy goals. Finally, though the class action status was not addressed directly by this case, the majority opinion may also have far-reaching implications on the potential future certification class actions in medical malpractice claims.
Background Facts
A nurse employed by MultiCare illegally diverted injectable medications for her own use while working in the emergency department (ED) at Good Samaritan Hospital. In the course of diverting medications, she infected some ED patients with hepatitis C. MultiCare notified all patients who received injectable narcotics while the offending nurse was on duty that they were potentially exposed—both patients who were treated by the offending nurse and those who were not. MultiCare determined that only those patients assigned to the nurse were actually at risk of contracting Hepatitis C or any other bloodborne illnesses.
Patients who received the notification brought a class action suit under RCW 7.70, claiming MultiCare failed to meet the standard of care in supervising and hiring the offending nurse. All the patients claimed emotional distress, and only some claimed harm from follow-up blood draws to test for bloodborne illnesses. Of note, none of the patients in the class ever tested positive for hepatitis C. The Pierce County trial court divided the class into two groups: Those who were treated by the offending nurse and those who were not. The trial court then dismissed the claims of the second group (“the General Treatment Class”). The trial court determined that legal causation was not satisfied because the offending nurse did not directly treat those patients. The Court of Appeals – Division II affirmed the dismissal of the General Treatment Class.
A five-justice majority of the Supreme Court reversed, holding the General Treatment Class had established legal causation for their 7.70 RCW claims, and allowing both groups to proceed with their class action RCW 7.70 claims. The Court remanded to the trial court to determine if any corporate negligence claim remained.
Supreme Court Analysis
The General Treatment Class’s alleged injuries arise “as the result of health care” as required for a RCW 7.70 claim.
MultiCare argued that the General Treatment Class does not have a claim under RCW 7.70 because their injuries do not arise as a result of health care because they were never treated by the nurse who committed the misconduct. Slip Op. at 6. The Supreme Court rejected this analysis, reasoning that the General Treatment Class does not argue that they were harmed by the offending nurse’s negligence, but by the hospital’s negligence in supervising and hiring her. Id.
Therefore, the Court held that their claim falls under Chapter 7.70 RCW because it governs all causes of action “occurring as a result of health care.” Slip Op. at 6. Specifically, their claim falls under RCW 7.70.030(1) as it argued that MultiCare failed “to follow the accepted standard of care.” Id. The Court continued:
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. Ch. 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 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 the offending nurse. At 7-8.
A more permissive legal causation standard.
The Court also held that legal causation was satisfied by the General Treatment Class for both their Chapter 7.70 RCW claim and the corporate negligence claim. Slip Op. at 9. They reversed the lower courts’ claims for three reasons: (1) RCW 7.70 allows claims for purely emotional damages; (B) the General Treatment Class’s harm is directly caused by the hospital’s conduct, not from being treated by the offending nurse or receiving the notification letter; and (C) public policy favors finding legal causation when a hospital’s negligence leads to an objectively reasonable fear of contracting a disease through a medially recognized means of transmission.
The Court determined that while Washington law often disfavors damages for purely emotional harm, Chapter 7.70 RCW does not impose such a restriction. Slip Op. at 10. They determined that there is no requirement under Chapter 7.70 RCW to have objective symptomology. Id. at 11.
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 Court determined that direct treatment by the offending nurse was irrelevant because the cause of the Patient’s damages was their reasonable fear of infection based on their treatment in a negligently managed ED. Slip Op. at 12. They concluded that “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.” Id. at 14-15.
The Court rejected an “actual exposure” test but wanted to add “guardrails” to a pure “reasonableness” standard in order to avoid excessive liability. Slip. Op. at 19. The test needed to link reasonableness to a scientifically recognized means of transmission and to limit the time period available for a claim. Therefore, the court adopted a new legal causation test for chapter 7.70 RCW claims involving the 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.”Id.
Who can provide health care?
This ruling appears to overturn what was well-established Washington law that claims under chapter 7.70 RCW are limited to when a health care provider has breached its duty to act consistently with the applicable standard of care while examining, diagnosing, treating, or otherwise providing medical care for a patient. Beggs v. State Dept. of Social & Health Services, 171 Wn.2d 69, 79, 247 P.3d 421 (2011). The Plaintiffs alleged that MultiCare was negligent in its supervision and hiring of Nurse Weberg. They did not claim MultiCare was negligent in its duty in examining, diagnosing, treating or otherwise providing medical care to the General Treatment Class. As the dissent correctly pointed out, even assuming that there was a potential claim for negligent supervision or hiring of the offending nurse, long-established case law dictates that the hospital still must be found to have failed to meet the standard of care to be actionable as the legal cause of any injury. Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998). Nevertheless, the five-justice majority found that the Plaintiffs can bring a claim against MultiCare under chapter 7.70 RCW.
The majority opinion’s basis to claim that MultiCare breached the standard of care in providing health care to the patients in the Emergency Department is strained, given that the hospital was taking responsible action to follow the public health policies embraced by the state legislature. Slip Op. Dissent at 3They stated that “Individuals and entities beyond physicians can provide health care.” A “[h]ealth 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. They then concluded that the harm the patients suffered resulted from injections in the ED, “…results from MultiCare’s alleged failure to follow the accepted standard of care in the process of providing this health care [the injections].”
This holding leaves unanswered the question of how could the hospital be utilizing the “skills they have been taught to examine, diagnose, treat, or care for the plaintiff as their patient.” A corporate entity cannot do any of these actions and therefore a medical malpractice claim against MultiCare is difficult to understand. What a hospital can do is to follow the strong public policy in favor of disclosure and remedial action in response to a potential outbreak of a communicable disease. Slip. Op. Dissent at 3. As the Court’s dissent clearly points out, the majority’s holding may potentially provide a perverse incentive against sending the public notices and providing the blood tests at issue in this case at the expense of public health in the future. Id.
Corporate practice of medicine doctrine upset?
Further, it has long been understood that under Washington law that plaintiffs cannot bring a direct claim of “medical negligence” against a corporate entity because the entity itself cannot practice medicine. See Columbia Phys. Therapy, P.S. v. Benton Franklin Ortho. Assoc., PLLC, 168 Wn.2d 421, 29-31, 228 P.3d 1260 (2010) (recognizing the “corporate practice of medicine” doctrine, whereby a business entity is legally precluded from practicing medicine).
The “corporate practice of medicine” doctrine limits the duties of corporate entities and legally precludes a corporation itself from practicing medicine. See, e.g., Washington Imaging Servs., LLC v. Washington State Dep’t of Revenue, 171 Wn.2d 548, 558, 252 P.3d 885 (2011) (“It is true that under the common law corporate practice of medicine doctrine, absent legislative authorization, a business may not engage in the practice of medicine”).
The doctrine specifically recognizes that a corporate entity is legally precluded from interfering with the clinical judgment of a practitioner within its walls. See 61 Am. Jur. 2d Physicians, Surgeons, Etc. § 118. Accordingly, a hospital acts only through its agents. See 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 105.02.01 (6th ed.).
A hospital can be held vicariously liable for the negligent provision of health care by its “officer[s], director[s], employee[s], or agent[s] . . . acting in the scope of [their] employment.” RCW 7.70.020(3). However, the Plaintiffs did not make a vicarious liability claim for any of the ED staff. Further, the General Treatment Class were specifically not treated by the offending nurse. And yet, the Court found that both classes of Plaintiffs could proceed with their medical negligence claims against MultiCare without a vicarious liability claim.
Emotional distress without objective symptomatology?
In this case, the General Treatment Class’s claims arise from their fear of contracting a communicable disease which resulted in emotional damages and physical damages for a percentage that got blood testing. The majority of the class did not get testing and only claimed emotional damages.
Generally, Washington law disfavors damages exclusively on emotional distress without a corresponding physical harm or objective manifestation. See Bylsma v. Burger King Corp., 176 Wn.2d 555, 560-62, 293 P.3d 1168 (2013) (requiring objective symptomology to establish emotional distress damages); Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 320, 858 P.2d 1054 (1993) (“where emotional distress is not a consequence of physical injury … Washington courts have been cautious about extending a right to recovery”). The Court of Appeals followed this when they evaluated the General Treatment Class’s claims.
The Court of Appeals explained how legal causation is a policy matter and focuses, not on the type of damages, but on whether any liability should attach to a defendant’s actions. M.N. v. MultiCare Health System, Inc., 23 Wn. App. 2d 558, 567 n. 8, 519 P.3d 932 (2022) (emphasis added). They declined to extend liability to MultiCare’s actions which led to the Class’s fear, stating that Washington law disfavors emotional damages without physical harm and weighed the public policies in favor of MultiCare’s actions (notifying the class of potential exposure). Id at 568.
The four-justice dissent in the decision came to the same conclusion, that “not all injuries have remedies at law.” Slip Op., Dissent at 1. The dissent determined that even if the hospital was negligent, the strong policies in favor of disclosure the hospital’s actions meant they were not the proximate cause of an injury for which the law gives a remedy. Id. at 3. The plaintiff’s injury was their temporary fear which is “not an injury for which ch. 7.70 RCW gives a remedy.” Id. at 2.
The majority did not perform any sort of policy analysis but determined that RCW 7.70 does not require objective symptomology and allows claims for purely emotional damages. The Court explained that in Berger stood for the precedent that plaintiffs can recover for purely emotional damages under Chapter 7.70 RCW without any proof of objective symptomatology. 144 Wn.2d at113. But even in the Berger court determined that the purely emotional damages the plaintiff claimed were specific to the harm she experienced because of the unauthorized disclosure of privileged health information. Id. at 101-02. The Court has now clarified that there are no constraints on claims for purely emotional damages that are now freely allowed under Chapter 7.70 RCW.
Perverse incentives?
The amicus curiae brief of the Tacoma-Pierce County Health Department (TPCHD) urged the Court to follow the Court of Appeals ruling because “a medical institution should not face greater legal jeopardy because it voluntarily followed guidance from public health authorities.” TPCHD amicus curiae brief at 12.
The Court of Appeals weighed the competing public policy interests of 1) holding tortfeasors liable for harms caused by their negligent acts against 2) “encouraging medical institutions to be open, transparent, and overinclusive” when cooperating with local health departments to combat the spread of communicable disease. M.N., 23 Wn. App. 2d at 568. The Court of Appeals determined that the Plaintiffs’ interest in recovering for emotional distress must yield to society’s interest in preventing the spread of communicable disease. Id.
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.” TPCHD amicus curiae brief at 15. The Court acknowledged those TPCHD’s warnings but still created a new test that they believe weeds out frivolous litigation and accounts for public misinformation while still holding tortfeasors responsible for the consequences of their negligence.” Slip Op. at 19.
Class certification of medical malpractice claims?
This class action case involved two certified classes (one who had direct contact with the nurse and the other who did not), The class that had no direct contact, was dismissed by the lower courts for lack of legal causation. The issue of class certification was not before the Court; however, it is unusual to see a class action lawsuit brought for personal injuries in a medical malpractice setting when injuries are generally highly individualized.
The amicus curiae brief of Washington State Hospital Association explained how the personal injury damages, specifically including emotional distress damages, are generally not suitable for class resolution. TPCHD amicus curiae brief at 19 (citing Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189, opinion amended on denial of reh’g, 273 F.3d 1266 (9th Cir. 2001)). Emotional distress claims of the thousands of proposed class members defeat class certification because emotional distress is necessarily an individualized inquiry, and the amount of damages in such cases “is not susceptible to a mathematical or formulaic calculation.” Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 307 (5th Cir. 2003). The majority did not address this concern.
