Berger v. Sonneland

• Decision Date: 05 July 2001
• Docket Number: No. 70010-9.
• Citation: Berger v. Sonneland, 26 P.3d 257, 144 Wash.2d 91 (Wash. 2001)
• Court: Washington Supreme Court
• Parties: Suzan BERGER, Respondent, v. John SONNELAND, M.D., Petitioner.

26 P.3d 257

144 Wash.2d 91

Suzan BERGER, Respondent, v. John SONNELAND, M.D., Petitioner.

No. 70010-9.

Supreme Court of Washington, En Banc.

Argued March 20, 2001.

Decided July 5, 2001.

Williams, Kastner & Gibbs, Mary H. Spillane, Seattle, for Petitioner.

Huppin, Ewing, Anderson & Paul, Brad E. Smith, Spokane, for Respondent.

SMITH, J.

Petitioner John Sonneland, M.D., seeks review of a decision by the Court of Appeals, Division Three, which reversed an order of summary judgment by the Spokane County Superior Court in his favor in an action by Respondent Suzan Berger for medical malpractice based upon his unauthorized disclosure of confidential information.¹ We granted review. We reverse.

QUESTIONS PRESENTED

The questions presented in this case are (1) whether a cause of action for a physician's unauthorized disclosure of a patient's confidential information must be filed solely under the Uniform Health Care Information Act, chapter 70.02 RCW; (2) whether there is a cause of action for unauthorized disclosure by a physician of confidential information under chapter 7.70 RCW; (3) whether expert medical evidence is required to prove emotional distress under chapter 7.70 RCW; and (4) whether objectively verifiable symptoms are required to support a cause of action for emotional distress under chapter 7.70 RCW.

STATEMENT OF FACTS

On June 26, 1996 Respondent Suzan Berger filed a summons and complaint in the Spokane County Superior Court against Petitioner John Sonneland, M.D.,² claiming (1) breach of confidentiality; (2) breach of fiduciary relationship; (3) breach of the Uniform Health Care Information Act, chapter 70.02 RCW³; and (4) medical malpractice.⁴ Her claims arose from Petitioner Sonneland's unauthorized disclosure of confidential information about Respondent to her former husband, Dr. Daniel F. Hoheim, M.D., a practicing physician in Missoula, Montana.⁵

On July 1, 1993 Respondent Berger consulted with Petitioner Sonneland, a physician, about her health problems.⁶ She complained of abdominal pain, chronic diarrhea, severe dumping syndrome, vomiting and a 40 pound weight loss.⁷ Her symptoms began at age 22 and at age 27 she had multiple surgeries.⁸ Petitioner Sonneland reported Respondent told him she was taking various drugs, including Tylox, a narcotic for pain.⁹ Respondent Berger disputes this fact.¹⁰ She stated she gave Petitioner a written release to contact her previous physician, Dr. Federic E. Eckhauser, at the University of Michigan Hospital, Ann Arbor, Michigan, to obtain her medical history, but did not list Dr. Hoheim, her former husband, as a past medical provider and did not give Petitioner permission to contact him. She said she told Petitioner her relationship with her former husband was strained.¹¹

Petitioner telephoned Respondent's former husband and discussed with him her request for the narcotic prescription and her past use of prescription drugs.¹² The former husband immediately filed a motion in a pending case in the Montana courts to modify the custodial plan for the couple's children, asserting that Respondent's medical condition and drug use justified modification.¹³ Respondent claims that as a result of Petitioner Sonneland's disclosure she developed insomnia and was anxious and stressed at all times, resulting in her becoming physically ill.¹⁴ She asserts that the stress caused nausea and vomiting, irritating previous severe gastrointestinal problems; that she lost weight; and that she no longer trusts physicians.¹⁵ She also claims she had to spend money for attorney fees to contest the custody modification.

On December 20, 1997 Petitioner Sonneland filed a motion for summary judgment.¹⁶ In a memorandum he claimed Respondent could not establish a prima facie case of medical negligence; her claim under the Uniform Health Care Information Act, RCW chapter 70.02 was barred by the statute of limitations; and there was no separate cause of action for breach of confidence or fiduciary relationship.¹⁷ On March 9, 1998 Respondent Berger filed a memorandum in opposition to summary judgment.¹⁸ On March 20, 1998 the parties stipulated to dismissal of the first, second and third causes of action with prejudice, leaving only the medical malpractice claim.¹⁹

On June 23, 1998 Petitioner Sonneland filed a second motion for summary judgment.²⁰ In a memorandum he claimed Respondent could not establish a prima facie case of medical negligence because she had not established and could not establish by medical testimony that Petitioner caused her claimed psychological or physical injuries.²¹ On July 15, 1998 Respondent filed a motion for summary judgment stating she was no longer claiming any medical or physical injury other than her emotional distress arising out of Petitioner's conduct.²²

On July 2, 1998 Respondent Berger filed a motion to strike, as untimely, Petitioner's motion for summary judgment.²³ On July 8, 1998 Petitioner Sonneland filed a response to the motion to strike and included a motion to "enlarge time for hearing dispositive motions." He claimed "the alleged tardiness in the motion [was] due to plaintiff's lack of compliance with the court's scheduling order and not as a result of any act or omission by defendant."²⁴

On July 10, 1998 Judge Richard J. Schroeder, Spokane County Superior Court, signed an order which read:

II. FINDING

After reviewing the case record to date, and the basis for the motion, the court finds that: The motion should be denied.

III. ORDER

It is ordered that:

1. The motion to strike is Denied.

2. Defendant's Summary Motion will be heard on July 24, 1998.

3. Plaintiff's Response to the Summary Judgment Motion is due July 15, 1998.

Dated: 7/10/98

/s/ Richard J. Schroeder²⁵ Judge

On January 14, 1998 Respondent Berger filed a declaration of Dr. Thomas R. McCormick, B. Th., M. Div., D. Min., a medical ethicist, who is Director of Counseling Services at the University of Washington School of Medicine, and who was identified as an expert witness to testify at trial.²⁶ In his declaration Dr. McCormick stated he did not anticipate giving testimony on "medical causation issues," whether that testimony comes from a medical ethicist or a medical doctor.²⁷ He stated he is familiar with the standard of care for all physicians in Washington, including the physician-patient rule of confidentiality.²⁸ In his deposition on June 22, 1998 he stated his testimony was "related [only] to the ethical breach."²⁹

On July 15, 1998 Respondent filed a response to Petitioner's motion for summary judgment, stating she had in fact presented a prima facie case inasmuch as medical testimony is not required to prove causation because she was claiming emotional distress and consequential damages in legal fees and not claiming medical or physical injury.³⁰

On July 21, 1998 Petitioner Sonneland filed a motion and memorandum to exclude Respondent's emotional distress claims.³¹ He moved to dismiss her claims for damages because she put her psychological condition in issue, stipulated to a psychological independent medical examination (IME) in Philadelphia, and then refused to be tested.³² On August 18, 1998 Petitioner Sonneland filed a memorandum in support of his motion to recover costs for the psychological examination.³³

On August 25, 1998, after a hearing on the motions, Judge Schroeder signed an order which read in part:

III. FINDINGS

Based on review of the foregoing materials, and after hearing argument of counsel, the Court finds as follows:

A. Regarding Summary Judgment

1. There is no genuine issue of material fact and defendant is entitled as a matter of law to summary judgment dismissing this action with prejudice.

2. There is nothing in the record before the Court establishing that the plaintiff suffered any damage as the result of any alleged act or omission by defendant Dr. John Sonneland.

3. The entire remaining claims in plaintiff's complaint and the complaint in its entirety should be dismissed with prejudice.

A. Regarding Motion to Strike McCormick Declaration

1. The McCormick Declaration should not be stricken and that motion should be denied.

IV. ORDER AND JUDGMENT

Based on the foregoing, it is hereby

ORDERED, ADJUDGED AND DECREED as follows:

1. The McCormick Declaration is not stricken.

2. The complaint and all claims therein are dismissed with prejudice.

DONE IN OPEN COURT this 25 of August, 1998.

/s/ Richard J. Schroeder³⁴ Richard J. Schroeder, J.

On August 12, 1998 Respondent Berger filed a motion for reconsideration of the court's order granting summary judgment.³⁵ On September 4, 1998 Petitioner Sonneland filed a responding memorandum.³⁶

On September 11, 1998, Judge Schroeder signed an order which read:

II. FINDING

After reviewing the case record to date, and the basis for the motion, the court finds that: As the court's ruling was based upon the Plaintiff's failure to present evidence of emotional distress damages, and that issue had not been raised in defendant's original judgment motion.

III. ORDER

It Is Ordered that: Plaintiff's motion for reconsideration is granted; that plaintiff shall have the opportunity to respond to the emotional distress issue by September 28, 1998, and that the Defendant's motion shall be reheard on October 9, 1998, together with Defendant's motion for costs arising out of Dr. Green's exam of the plaintiff.

Dated: 9-11-98

/s/ Richard J. Schroeder³⁷ Judge

On September 30, 1998 Respondent Berger filed a responsive brief to Petitioner's motion for summary judgment on the issue of emotional damages.³⁸ On October 2, 1998 Respondent filed a response.³⁹

On October 23, 1998, after a hearing, Judge Schroeder signed an order reading in part:

III. FINDINGS

Based on review of the foregoing materials, and after hearing argument of counsel the court finds as follows:

A. Regarding Summary Judgment

1. RCW 7.70 et. seq. supports a cause of action for breach of confidentiality.

2. The plaintiff was required to set forth

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