Hung Dang v. Floyd, Pflueger & Ringer, PS
| Decision Date | 17 October 2022 |
| Docket Number | 83002-3-I |
| Court | Washington Court of Appeals |
| Parties | DR. HUNG DANG, M.D., a single person, Appellant, v. FLOYD, PFLUEGER & RINGER, PS, a Washington professional services corporation; and REBECCA SUE RINGER, an individual, Respondents. |
Hung Dang, MD, brought a legal negligence claim against Floyd Pflueger & Ringer PS and Rebecca Ringer (together FPR). Ringer represented Dr. Dang in a hearing before the Washington Medical Quality Assurance Commission (MQAC).[1] Dr. Dang asserts that decisions to not call certain witnesses, not offer certain exhibits, and not depose two witnesses, amounted to a breach of the standard of care and proximately caused damage to Dr. Dang. We conclude there is not a reasonable inference that had the omitted evidence been admitted Dr. Dang would have received a more favorable outcome. As a result, the trial court correctly granted summary judgment to FPR. We also conclude the trial court properly denied Dr. Dang's CR 56(f) motion to continue the summary judgment hearing. We affirm.
The underlying facts are set forth in further detail in our opinion in Hung Dang v. Department of Health, in which we upheld the discipline that MQAC imposed on Dr. Dang 10 Wn.App. 2d 650, 450 P.3d 1189 (2019), review denied, 195 Wn.2d 1004, 458 P.3d 781, cert denied, 141 S.Ct. 371, 208 L.Ed.2d 94 (2020). We summarize the facts here.
Dr Dang is an otolaryngologist, specializing in the treatment of the ear, nose, and throat (ENT). Dr. Dang worked at Group Health Cooperative. As a condition of his employment with Group Health, Dr. Dang maintained staff privileges and worked as an on call emergency ENT specialist at St. Joseph Medical Center in Tacoma for all Group Health patients. St. Joseph is one of several hospitals in the Franciscan Health System and is a level II trauma center.
Dr. Dang and his fellow Group Health ENT specialist colleagues (together "Group Health ENT specialists") took "community call" for St. Joseph patients, covering the general St. Joseph population including those not covered by Group Health. "Community call" means that if a patient presents to an emergency department (ED) and specialty services are needed, a request can be made on behalf of the patient for a specialty physician to come in to evaluate and care for that patient. Active medical staff members are generally expected to take community call.
The Group Health ENT specialists taking community call at St. Joseph also received consultation calls from EDs at Franciscan's other affiliated hospitals, such as St. Francis Hospital in Federal Way and St. Clare Hospital in Lakewood. ED physicians at the other affiliated hospitals were provided a call schedule for on call specialists who consulted on Group Health patients, and another call schedule for on call specialists who consulted for Franciscan patients. The Group Health ENT specialists received calls because the ED physicians at the affiliated Franciscan hospitals possessed the ENT specialist rotation call schedule published by Franciscan based on the specialists holding privileges at St. Joseph. This led to the Group Health ENT specialists receiving consultation requests not only for Group Health covered patients, but also for Franciscan's other patient population.
Burdened with the additional caseload, the Group Health ENT specialists objected to accepting consultation calls from Franciscan-affiliated hospitals other than St. Joseph, reasoning that the Franciscan medical staff bylaws did not require them to take such calls. ED physicians from the Franciscan-affiliated hospitals argued Dr. Dang and his colleagues were responsible for the consultation calls and failing to comply might be considered a violation of the Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. § 1395dd.
EMTALA requires hospitals to treat patients who need emergency medical care, regardless of their ability to pay. 42 U.S.C. § 1395dd; Jackson v. E. Bay Hosp., 246 F.3d 1248, 1254 (9th Cir. 2001). EMTALA was based in part on a concern by Congress that hospitals were "dumping" patients who were unable to pay for care, either by refusing to provide emergency treatment to these patients, or by transferring the patients to other hospitals before the patients were stabilized. Jackson, 246 F.3d at 1254. Under EMTALA, a hospital must provide appropriate emergency medical care to stabilize the patient's medical condition or transfer the patient to another medical facility provided certain requirements are satisfied. 42 U.S.C. § 1395dd(b), (c).
Tony Haftel, MD, the former Franciscan vice president of quality and associate chief medical officer, became involved in trying to resolve the community call issue. Kim Moore, MD, succeeded Dr. Haftel and also sought to resolve the issue. On October 5, 2011, Dr. Haftel e-mailed Dr. Dang and Dr. Moore to inform them that Franciscan made it clear to their ED physicians that the Group Health ENT specialists on community call were responsible for St. Joseph as the schedule stated. In an e-mail dated April 30, 2014, Dr. Moore acknowledged meeting with Craig Iriye, MD MHA, the medical center chief for Group Health's Tacoma Medical Center, to discuss the Group Health ENT specialists' concerns. Dr. Moore also suggested a screening checklist for the patient transfer center to use when getting a request to contact a Group Health ENT for a patient consultation.
The Group Health administration told the Group Health ENT specialists that they must comply with Franciscan's request that the Group Health ENT specialists manage the patients from the entire Franciscan system. Group Health reasoned that doing otherwise might be seen as an EMTALA violation, and Group Health wanted to maintain its partnership and cooperation with Franciscan.
On March 30, 2016, the Washington State Department of Health (DOH) filed a statement of charges against Dr. Dang, alleging violation of EMTALA and the Uniform Disciplinary Act (UDA), chapter 18.130 RCW. The UDA governs licensing and discipline of physicians. RCW 18.130.180 regulates unprofessional conduct. Among other things, it is unprofessional conduct for a licensed health professional to commit an act involving moral turpitude relating to the practice of the person's profession, or commit negligence, malpractice, or incompetence which results in injury to a patient or which creates an unreasonable risk that a patient may be harmed. RCW 18.130.180(1), (4). Additionally, it is unprofessional conduct for a licensed health professional to violate any state or federal statute or administrative rule regulating the profession in question, including any statute or rule defining or establishing standards of patient care or professional conduct or practice. RCW 18.130.180(7).
The DOH statement of charges against Dr. Dang alleged violations of EMTALA and RCW 18.130.180(1), (4), and (7) with respect to patients "A," "B," and "C." According to the charges, generally, Dr. Dang violated EMTALA and the UDA by refusing to consult on three patients on the grounds that he was not on call for the Franciscan hospitals to which the patients first presented.
Dr. Dang retained attorney Rebecca Ringer and filed an answer to the statements of charges. MQAC proposed a settlement agreement which would have consisted of stipulated findings of fact, conclusions of law, and an agreed order, and which would have avoided a hearing on the charges. Dr. Dang rejected the settlement offer. Ringer did not depose Dr. Moore in advance of the MQAC hearing. In the prehearing filings, Ringer did not list Dr. Haftel as a witness or identify as exhibits any of the e-mails in which Dr. Moore had acknowledged the existence of the Group Health ENT specialists' concerns about receiving consultation requests from Franciscan hospitals other than St. Joseph.
Ringer later testified that she did not call Dr. Haftel because she did not think he could provide any information needed for the time frame relevant to Dr. Dang's case. Ringer opted against deposing Dr. Moore because she viewed Dr. Moore's involvement as evident in the record and did not want deposition questioning to allow an adverse witness to become better prepared. Ringer preferred to avoid depositions because doing so would make it less likely the DOH would depose Dr. Dang, and therefore less likely that it would discover the e-mails concerning community call. Ringer did not offer the community call e-mails because she believed using them as evidence would lead the DOH to other evidence that she thought would do "more harm than good" and be "risky" and "dangerous" for Dr. Dang at the hearing. Ringer believed relying on the e-mails would have led the DOH to seek discovery of all related e-mails, beyond just those Dr. Dang believed supported the existence of the community call dispute.
The three day MQAC hearing began on January 30, 2017. On September 29, 2017, MQAC issued its 22 page findings of fact conclusions of law, and final order. On December 20, 2017, MQAC issued amended findings of fact, conclusions of law, and final order. This court upheld the MQAC's amended findings of fact, conclusions of law, and final order. Hung Dang, 10 Wn.App. 2d at 675.
MQAC entered findings in regard to the three patients it had charged Dr. Dang with refusing to transfer or see.
MQAC found patient A was seen at St. Clare for facial swelling, an enlarged tongue with airway obstruction, and difficulty breathing and swallowing. It found, based on patient A's medical history and current condition, the ED physician was concerned that patient A's condition could worsen and a specialist who could render a higher level of care was needed. It found St. Clare did not have an ENT specialist on call. And...
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