Konicke v. Evergreen Emergency Servs., P.S.

• Decision Date: 08 February 2021
• Docket Number: No. 80463-4-I
• Citation: Konicke v. Evergreen Emergency Servs., P.S., 16 Wash.App.2d 131, 480 P.3d 424 (Wash. App. 2021)
• Parties: Michael KONICKE, individually and as Personal Representative of the Estate of Victoria Konicke, deceased, Appellant, v. EVERGREEN EMERGENCY SERVICES, P.S., a Washington Professional Service Corporation; King County Public Hospital District No. 2, d/b/a EvergreenHealth Medical Center, Jane and John Does 1-10 and the marital communities thereof, and ABC Corporations 1-10, Respondents.
• Court: Washington Court of Appeals

16 Wash.App.2d 131

480 P.3d 424

Michael KONICKE, individually and as Personal Representative of the Estate of Victoria Konicke, deceased, Appellant,

v.EVERGREEN EMERGENCY SERVICES, P.S., a Washington Professional Service Corporation; King County Public Hospital District No. 2, d/b/a EvergreenHealth Medical Center, Jane and John Does 1-10 and the marital communities thereof, and ABC Corporations 1-10, Respondents.

No. 80463-4-I

Court of Appeals of Washington, Division 1.

February 8, 2021

Mark Leemon, Leemon + Royer, PLLC, 403 Columbia St., Ste. 500, Seattle, WA, 98104-1625, for Appellant(s).

Daniel F. Mullin, Mullin, Allen & Steiner PLLC, 101 Yesler WaySte. 400, Seattle, WA, 98104-3425, Aaron Paul Gilligan, Attorney at Law, 7109 Seward Park Ave., S., Seattle, WA, 98118-3457, Tracy A. Duany, Justin Andrew Steiner, Mullin, Allen & Steiner PLLC, 101 Yesler WaySte. 400, Seattle, WA, 98104-3425, Katharine Witter Brindley, Helsell Fetterman LLP, 1001 4th Ave., Ste. 4200, Seattle, WA, 98154-1154, Rhianna Marie Fronapfel, Bennett Bigelow & Leedom, P.S., 601Union St., Ste. 1500, Seattle, WA, 98101-1363, for Respondent(s).

PUBLISHED OPINION

Dwyer, J. ¶ 1Michael Konicke appeals from a dismissal of his complaint alleging gross negligence against Evergreen Emergency Services and King County Public Hospital DistrictNo. 2. and the denial of his subsequent motion to reconsider.Michael contends that because his son, Zachary, was treated at the respondents’ emergency room while experiencing a mental health crisis, a special relationship was formed, and respondents can be held liable for gross negligence resulting in Zachary's subsequent actions—shortly after he was released, Zachary killed Michael's wife Victoria, attacked Michael, and set fire to the family home.Michael also avers that, even if no such special relationship was formed, the involuntary treatment act, chapter 71.05 RCW, creates an independent cause of action entitling Michael to relief.Because neither contention is meritorious, we affirm.

I

¶ 2 After ending his relationship with his wife in California in January 2015, Zachary Konicke returned to Washington, where his parents, Michael and Victoria Konicke, and his brother, Alex Konicke, resided.¹Over the course of 2015, Zachary's² behavior became increasingly odd.At one point, Zachary physically attacked Victoria.

¶ 3 In January 2016, Zachary and Alex were living together.On January 12, Zachary "shaved off all his body hair and doused himself in gasoline with the intention of lighting himself on fire to prove that it would not hurt or injure him, and made paranoid statements about being watched and chased, and about the devil, demons and other spirits."Early the next morning, Alex found Zachary wrapped in a blanket inside of a storage closet in their house, "acti[ng] and speak[ing] in a bizarre and frightening manner."Alex called the police.Zachary was placed in an ambulance and taken to King County Public Hospital DistrictNo. 2's emergency room.³

¶ 4 After Alex explained to emergency room staff the events that had caused him to call the police, Zachary was evaluated.Zachary was released within a few hours.A designated mental health professional was not summoned to evaluate Zachary for involuntary treatment.

¶ 5 Alex felt that he"could not be responsible" for Zachary and took him to their parents’ house.The next day, Zachary killed Victoria, attacked Michael, and set the family home on fire.

¶ 6 Michael filed separate complaints against Evergreen Emergency Services and King County Public Hospital DistrictNo. 2, on behalf of himself and his wife's estate, which were later consolidated into a single action.In his initial complaint, Michael asserted three causes of action: (1) negligent supervision, (2) medical negligence, and (3) gross negligence in violation of RCW 71.34.410.⁴In asserting negligent supervision, Michael contended that respondents had a special relationship with Zachary because they had "taken charge" of Zachary.

¶ 7Evergreen Emergency Services and King County Public Hospital DistrictNo. 2 each filed a CR12(b)(6) motion to dismiss.In response, Michael abandoned his original claims and filed an amended complaint asserting gross negligence in violation of chapter 71.05 RCW as the sole cause of action.

¶ 8The trial court granted respondents’ motion to dismiss.The trial court found that RCW 71.05.120⁵ does not create a cause of action and that there was no special relationship between Zachary and respondents such that they owed a duty of care to third parties.

¶ 9 Michael moved for reconsideration.The motion was denied.Michael appeals both the dismissal and the denial of his motion to reconsider.

II

A

¶ 10We review an order granting a motion to dismiss under CR12(b)(6) de novo.FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wash.2d 954, 962, 331 P.3d 29(2014).A dismissal for failing to state a claim upon which relief may be granted is appropriate when the plaintiff cannot prove " ‘any set of facts which would justify recovery.’ "Kinney v. Cook, 159 Wash.2d 837, 842, 154 P.3d 206(2007)(quotingTenore v. AT&T Wireless Servs., 136 Wash.2d 322, 330, 962 P.2d 104(1998) ).All facts alleged in the plaintiff's complaint are presumed to be true.Chukri v. Stalfort, 200 Wash. App. 870, 874, 403 P.3d 929(2017).The plaintiff is entitled to the benefit of any hypothetical set of facts consistent with the complaint.Hoffer v. State, 110 Wash.2d 415, 420, 755 P.2d 781(1988).

B

¶ 11 Michael first contends that the trial court erred by dismissing his gross negligence claim because, he avers, respondents had a special relationship with Zachary, triggering liability for foreseeable harm that Zachary caused to Michael and Victoria.We disagree.Because respondents’ relationship with Zachary was not "definite, established, and continuing," it was not a special relationship as described in the Restatement (Second) of Torts§ 315(Am. LawInst. 1965), or in Washington case law.Volk v. DeMeerleer, 187 Wash.2d 241, 256, 386 P.3d 254(2016)(citingHoncoop v. State, 111 Wash.2d 182, 193, 759 P.2d 1188(1988) ).

¶ 12 Initially, we note that Washington does not recognize a cause of action for medical malpractice in the absence of a physician/patient relationship.This is because medical malpractice jurisprudence imposes a duty on a medical professional to act consistently with the standards of the medical profession, and those duties are owed to the patient.Paetsch v. Spokane Dermatology Clinic,PS, 182 Wash.2d 842, 850 n.6, 348 P.3d 389(2015).

¶ 13 However, Restatement§ 315 may impose a different duty—owed by a medical professional to a nonpatient victim—based on the relationship between the professional and the patient.Volk, 187 Wash.2d at 255, 386 P.3d 254.A claim arising from this duty is appropriately characterized as a medical negligence claim.Volk, 187 Wash.2d at 254, 386 P.3d 254.

¶ 14 Generally, a person is not obligated to prevent one person from causing harm to another.

Hertog v. City of Seattle, 138 Wash.2d 265, 276, 979 P.2d 400(1999).However, an exception exists when "a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct."RESTATEMENT § 315.⁶

¶ 15"[A] special relationship exists under § 315, triggering the imposition of a duty to protect against foreseeable dangers on a showing that a definite, established, and continuing relationship exists between the defendant and the third party."Volk, 187 Wash.2d at 256, 386 P.3d 254(citingHoncoop, 111 Wash.2d at 193, 759 P.2d 1188 ).Our Supreme Court has found that such a relationship may exist between psychiatrists and their patients, in both inpatient and outpatient settings.Volk, 187 Wash.2d at 262-63, 386 P.3d 254;Petersen v. State, 100 Wash.2d 421, 428, 671 P.2d 230(1983).

¶ 16 Here, Michael concedes that Zachary did not have a "definite, established, and continuing relationship" with respondents as a result of a single visit to the emergency room.We agree.Accordingly, Evergreen Emergency Services and King County Public Hospital DistrictNo. 2 did not have a duty to protect Michael and Victoria from Zachary.

¶ 17 Michael nonetheless avers that the policy considerations our Supreme Court discussed in Volk support extending liability.These considerations were relevant in determining the scope of a medical professional's duty when the existence of a special relationship between the medical professional and the patient was undisputed.Volk, 187 Wash. 2d at 246, 386 P.3d 254.Here, no special relationship was formed and, accordingly, no duty was owed to Michael.SeeEstate of Davis v. Dep't of Corr., 127 Wash. App 833, 841-42, 113 P.3d 487(2005)(initial assessment with licensed mental health counselor did not create special relationship between counselor and patient, and, therefore, counselor had no duty to protect others from patient).Similarly, the foreseeability of the harm to a third party determines the scope of a medical professional's obligations to that third party—even when a special relationship has been formed, the medical professional has an obligation to protect third parties only from foreseeable dangers.SeeVolk, 187 Wash. 2d at 256, 386 P.3d 254("[A] special relationship exists under § 315, triggering the imposition of a duty to protect against foreseeable dangers on a showing that a definite, established, and continuing relationship exists between the defendant and the third party.")⁷

¶ 18 Michael also contends that Evergreen Emergency Services and King County Public Hospital DistrictNo. 2 had a special relationship with Zachary because RCW 71.05.050(3) gave respondents control over Zachary.However, the amount of control and the nature of the control respondents had over Zachary is not determinative of whether they had a duty to act for the benefit of Michael and Victoria.SeeVolk, 187 Wash....