Eskridge v. Fletcher

• Decision Date: 24 June 2019
• Docket Number: No. 78013-1-I,78013-1-I
• Court: Washington Court of Appeals
• Parties: JOE M. ESKRIDGE, MD and JUDY Y. ESKRIDGE, husband and wife, Appellants, v. KELBY DAHMER FLETCHER and, STOKES LAWRENCE, P.S., a Washington Professional Service Corporation, Respondents.

JOE M. ESKRIDGE, MD and JUDY Y. ESKRIDGE, husband and wife, Appellants, v. KELBY DAHMER FLETCHER and, STOKES LAWRENCE, P.S.,a Washington Professional Service Corporation, Respondents.

No. 78013-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

June 24, 2019

UNPUBLISHED OPINION

SCHINDLER, J. — Dr. Joseph Eskridge appeals summary judgment dismissal of his legal malpractice lawsuit against attorney Kelby Fletcher and Stokes Lawrence PS. We affirm.

Employment at Swedish Medical Center

Dr. Joseph Eskridge is a neuroradiologist who performs neuro endovascular surgery. Dr. Eskridge began working at the Swedish Medical Center Neuroscience Institute in 2004. Dr. Eskridge agreed to and signed the terms and conditions of the Swedish Medical Center (Swedish) "Information Confidentiality and Non-Disclosure Agreement" (Information Confidentiality Agreement) in 2004 and every two years thereafter. The 2012 Information Confidentiality Agreement states, in pertinent part:

1. I will access, use and disclose minimum confidential information only as necessary to perform my job functions. This means, among other things, that:

a.) I will only access, use, and disclose the minimum confidential information as authorized to do my job;

b.) I will not in any way access, use, divulge, copy, release, sell, loan, review, alter, or destroy any confidential information except as properly and clearly authorized within the scope of my job and in accordance with all applicable Swedish policies and procedures and with all applicable laws;

. . . .

. . . .

3. I understand that it is my responsibility to be aware of Swedish policies regarding electronic communications and other policies that specifically address the handling of confidential information and misconduct that warrants corrective disciplinary action.

. . . .

5. I understand that any fraudulent application, violation of confidentiality or any violation of the above provisions may result in disciplinary action . . . up to and including termination of employment and/or affiliation with Swedish.

The Information Confidentiality Agreement defines "confidential information" as "[p]atient information (medical records, conversations, demographic information, financial information)."

In 2009, Swedish required Dr. Eskridge to engage in and complete a "clinical corrective action plan."

Washington Physicians Health Program Evaluation

In 2013, Madigan Army Medical Center neurologist Dr. Yince Loh worked part-time at the Swedish Neuroscience Institute. On September 10, 2013, Dr. Eskridge made "crude" and "rude" comments in phone calls and text messages to Dr. Loh. Dr.Loh reported the behavior of Dr. Eskridge to Swedish. Dr. Loh believed Dr. Eskridge was intoxicated.

On September 13, Swedish medical staff contacted the Washington Physicians Health Program (WPHP) regarding "multiple episodes" of Dr. Eskridge "lashing out at other staff," concerns about intoxication, and the September 10 communications with Dr. Loh. Swedish suspended Dr. Eskridge's clinical privileges and directed him to call WPHP to obtain an assessment.

Dr. Eskridge met with WPHP psychiatrist Dr. Charles Meredith on September 26. Dr. Eskridge admitted drinking "several glasses of wine" and arguing with Dr. Loh on September 10. Dr. Eskridge denied any other episodes of "being verbally aggressive." However, contrary to Dr. Eskridge's assertion, Dr. Meredith notes, "The documentation provided by Swedish indicates there have been a number of such incidents since 2008."

Dr. Meredith diagnosed Dr. Eskridge with "[a]lcohol abuse." Dr. Meredith states Dr. Eskridge "does admit to what is in my opinion an unhealthy level of alcohol consumption, although it is not clear that he is dependent."

We do have concerns about his alcohol use. Questions have been raised on occasion apparently by his wife regarding his alcohol use in the past and certainly have recently been raised in his professional environment. There are implications that his alcohol use may have negatively impacted his behavior in recent stressful interactions with colleagues.

Dr. Eskridge agreed to participate in mental health treatment and a one-year monitoring program. At the end of the one-year monitoring period in fall 2014, Dr. Eskridge told Dr. Meredith that "he still needs to work on 'diplomacy skills' with providers such as the neurologist with whom he had an interpersonal dispute that led to his referral here." Dr. Eskridge agreed that "his alcohol intoxication contributed to hissituation and he needs to be mindful and conservative in his use if he drinks recreationally again."

Letter to Madigan

On April 26, 2015, Dr. Eskridge "contacted the Madigan Command office by phone." Dr. Eskridge identified himself as "Dr. Mike" and requested a fax number and e-mail address. The next day on April 27, Dr. Eskridge sent an unsigned letter by e-mail to the Office of the Army Inspector General. The letter criticizes the treatment Dr. Loh provided to seven Swedish patients and asserts Dr. Loh engaged in "activities that violate Army policy and the federal False Claims Act Anti-Kickback Statute." Dr. Eskridge identifies the seven patients by "name, medical record number, age, diagnosis, procedure information including procedure date, and discharge status."

The e-mail address Dr. Eskridge used to send the letter contained his name. On April 28, Madigan personnel called Dr. Eskridge about the letter he sent by e-mail. Dr. Eskridge "again claimed to be Dr. Mike until he was told that his identity had been revealed in his email." Madigan personnel notified "Army Criminal Investigation" because "Dr. Eskridge's actions were considered irregular and suspicious."

At the request of Dr. Loh, on May 20, Madigan chief of medicine Dr. Jay Erickson notified Swedish of the assertions Dr. Eskridge made in the letter "so that Swedish could conduct an internal investigation as deemed appropriate."

Dr. Loh requested that I inform you about Dr. Eskridge's communications with Madigan last month. As you may know, Dr. Eskridge sent a report to Madigan on April 27, 2015 containing numerous allegations about Dr. Loh's medical care and professional conduct.

Dr. Eskridge contacted the Madigan Command office by phone on April 26, 2015 under a false name, identifying himself as Dr. Mike. He requested a fax number and email contact from the office secretary. OnApril 27, 2015, he sent an accusatory report about Dr. Loh via email to the office secretary. The report was written in an unusual style/format similar to a newspaper article. It contained private health information and was anonymous. The office secretary determined that the email came from Dr. Eskridge because the originating email address contained his name. When he was contacted by phone on April 28, 2015 he again claimed to be Dr. Mike until he was told that his identity had been revealed in his email.

Investigation and Review of Letter Sent to Madigan

Madigan conducted an investigation of Dr. Loh. On May 20, Madigan concluded there were "no substantiated findings of sub-standard care or unprofessional actions by LTC¹ Loh at Madigan."

Swedish hired an "external reviewer" to investigate Dr. Loh's care of patients. The external reviewer "found Dr. Loh provided quality care to the patients and no deficiencies were discovered."

On June 4, Swedish placed a "precautionary restriction" on Dr. Eskridge's medical staff privileges and notified him that the Professional Behavior Quality Review Committee and the Medical Executive Committee (MEC) planned to conduct a review of the letter he sent to Madigan.

On June 5, the chief of staff at Swedish sent a letter to Dr. Eskridge stating, "[I]t is suspected that you accessed those patient charts without proper authorization" and "you may have violated [the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104-191, 110 Stat. 1936,] and Swedish policies by releasing protected health information to third parties without proper consent."² The letter attached a copy of the Swedish policy on "Integrity, Compliance, Privacy and Security" and the "Levelsof Violation." The policy states the level of violation is determined "according to the severity of the violation"—"Level One" is an unintentional violation, "Level Two" is an "Intentional Violation Not for Personal Gain or Malice," and "Level Three" is an "Intentional Violation for Personal Gain or Malice."³

Dr. Eskridge contacted Kelby Fletcher, an employment attorney at Stokes Lawrence PS (collectively, Fletcher). On June 10, Fletcher and Stokes Lawrence attorney Thomas Lerner met with Dr. Eskridge. Lerner had experience in representing medical professionals and institutions. Lerner addressed the consequences of revocation of medical privileges at Swedish. Lerner told Dr. Eskridge that revocation of privileges would result in a report to the Washington State Department of Health Medical Quality Assurance Commission (MQAC) and the National Practitioner Data Bank.

On June 15, Fletcher sent "Engagement Terms" and a letter to Dr. Eskridge confirming Fletcher will represent Dr. Eskridge "in connection with your employment at Swedish Neurological Institute."

On June 23, Swedish privacy officer Tracy Howes and Swedish hospital attorney Peter Kim interviewed Dr. Eskridge. Fletcher attended the interview. Dr. Eskridge admitted that he accessed the Swedish medical records of patients with whom he had no treatment relationship in order to obtain the patient information in the letter to Madigan. Dr. Eskridge said he reported his concerns about the care Dr. Loh provided to patients to the former director of the Swedish Neuroscience Institute Dr. John Henson. Dr. Eskridge said he sent the letter to Madigan because he "felt" Dr. Henson did not take any action. When asked why he did not "use any of the Swedishmechanisms for reporting and addressing substandard care," Dr. Eskridge said he "forgot he could report it via eQVR⁴ and he didn't know he could report it to...