Messenger v. Whitemarsh, 80639-4-I

• Court: Court of Appeals of Washington
• Writing for the Court: Chun, J.
• Citation: 13 Wash.App.2d 206,462 P.3d 861
• Parties: Monique MESSENGER and Kevin Messenger, wife and husband, individually and on behalf of their minor children, M.M., G.M., L.M., B.M., and Q.M., Appellants, v. Shannon L. WHITEMARSH, as Administrator-Personal Representative of the Estate of Bryan Donald Whitemarsh; and MultiCare Health System, a Washington nonprofit corporation, Respondents.
• Docket Number: No. 80639-4-I,80639-4-I
• Decision Date: 11 May 2020

13 Wash.App.2d 206
462 P.3d 861

Monique MESSENGER and Kevin Messenger, wife and husband, individually and on behalf of their minor children, M.M., G.M., L.M., B.M., and Q.M., Appellants,
v.
Shannon L. WHITEMARSH, as Administrator-Personal Representative of the Estate of Bryan Donald Whitemarsh; and MultiCare Health System, a Washington nonprofit corporation, Respondents.

No. 80639-4-I

Court of Appeals of Washington, Division 1.

FILED May 11, 2020

Douglas Richard Cloud, Law Office of Douglas Cloud, 1008 Yakima Ave. Ste. 202, Tacoma, WA, 98405-4850, Philip Albert Talmadge, Aaron Paul Orheim, Talmadge/Fitzpatrick, 2775 Harbor Ave. Sw. Unit C, Seattle, WA, 98126-2168, for Appellants.

Daniel F. Mullin, Tracy A Duany, Mullin, Allen & Steiner PLLC, 101 Yesler Way Ste. 400, Seattle, WA, 98104-3425, Elizabeth Ann Leedom, Rhianna Marie Fronapfel, Bennett Bigelow & Leedom, P.S., 601 Union St. Ste. 1500, Seattle, WA, 98101-1363, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave. N. Seattle, WA, 98109-3007, for Respondents.

OPINION PUBLISHED IN PART

Chun, J.

13 Wash.App.2d 208

¶1 The Messenger family brought a medical malpractice suit against the estate of Bryan Whitemarsh, MD (Estate), and they also sued Whitemarsh's former employer, MultiCare Health System. The family claimed damages arising from a sexual relationship between Whitemarsh and his patient, Monique Messenger. The trial court granted the defendants' motions for summary judgment. The Messengers appeal.

¶2 In the published portion of this opinion, we hold that a primary care physician who provides mental health services to a patient may be liable for malpractice for injuries arising from the doctor's sexual relationship with that patient. We also conclude that the Messengers established genuine issues of material fact as to whether Whitemarsh treated Monique's¹ mental health issues and as to whether the sexual relationship constituted breach of duty.

13 Wash.App.2d 209

¶3 In the unpublished portion of this opinion, we conclude that the trial court properly granted summary judgment as to the Messengers'

462 P.3d 863

claims against MultiCare for negligent supervision or training and negligent hiring or retention.

¶4 As a result, we affirm in part and reverse in part.

I. BACKGROUND

¶5 From about 2010 to 2016, Whitemarsh acted as the Messenger family's primary care physician. In August 2015, Monique and Whitemarsh began an extramarital sexual relationship. Monique claims that before and during the affair, Whitemarsh treated her for depression. Kevin, Monique's husband, eventually discovered the affair and confronted her with his knowledge. In June 2016, Whitemarsh and Monique met and ended their relationship; Monique alleges that during their meeting, Whitemarsh threatened to kill her, Kevin, and himself. Whitemarsh committed suicide at home later that evening.

¶6 The Messenger family sued the Estate for medical malpractice, claiming Whitemarsh violated his duty of care to Monique by engaging in a sexual relationship with her. The Messengers also sued Whitemarsh's former employer, MultiCare, for vicarious liability and negligence.

¶7 The Estate and MultiCare moved for summary judgment. The Messengers moved to continue the summary judgment hearing, which motion the trial court denied. Before the hearing, the Messengers moved to amend their complaint, requesting inclusion of a breach of fiduciary duty claim and a negligent infliction of emotional distress claim against the Estate and MultiCare. The trial court granted the Estate's and MultiCare's motions for summary judgment and denied leave to amend. The Messengers appeal.

13 Wash.App.2d 210

II. ANALYSIS

A. Standard of Review

¶8 We review de novo summary judgments. Strauss v. Premera Blue Cross, 194 Wash.2d 296, 300, 449 P.3d 640 (2019). "Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Strauss, 194 Wash.2d at 300, 449 P.3d 640 (internal ellipsis, internal quotation marks and citation omitted); CR 56(c). We must construe all facts and inferences in favor of the nonmoving party. Scrivener v. Clark College, 181 Wash.2d 439, 444, 334 P.3d 541 (2014). "A genuine issue of material fact exists when reasonable minds could differ on the facts controlling the outcome of the litigation." Dowler v. Clover Park Sch. Dist. No. 400, 172 Wash.2d 471, 484, 258 P.3d 676 (2011).

B. Medical Malpractice Claim Against the Estate

¶9 The Messengers argue that any physician who engages in a sexual relationship with their patient, as Whitemarsh did with Monique, commits medical malpractice under RCW 7.70. They alternatively claim that, because Whitemarsh provided Monique with mental health treatment, their sexual relationship constituted medical malpractice under RCW 7.70. The Estate argues Whitemarsh's conduct is non-actionable under RCW 7.70, because (1) primary care physicians are not subject to RCW 7.70 liability for sexual relationships with patients and (2) no admissible evidence establishes that Whitemarsh provided Monique with mental health treatment. We conclude that the Messengers have established a genuine issue of material fact as to whether Whitemarsh treated Monique's mental health issues. We also conclude that a primary care physician who provides mental health treatment to a patient may be subject to malpractice liability

13 Wash.App.2d 211

for engaging in a sexual relationship with that patient, and that the Messengers have established a genuine issue of material fact as to whether Whitemarsh breached his duty to Monique.²

462 P.3d 864

1. Evidence of mental health treatment

a. Medical records

¶10 In Monique's November 8, 2012 medical record, Whitemarsh noted that Monique had an "[a]djustment disorder with depressed mood," "has been feeling ok," "continues to have difficulty with her separation with her husband," "has periods of depression," and "has been seeing a counselor." He also noted that her "mood [is] ok," "affect [is] anxious," "[t]hought process [is] logical and linear without loosening of associations or flight of ideas," that her "[t]hought content [is] normal," that she "[d]enies suicidal or homicidal ideation," and that she "[d]enies audio or visual hallucinations." Finally, he notes that Monique should "continue counseling." When viewing this evidence in the light most favorable to the Messengers, one could reasonably conclude that Whitemarsh provided Monique with mental health services. Thus, the medical records establish a genuine issue of material fact that Whitemarsh treated her mental health issues.

b. Monique's declaration and deposition; dead man's statute

¶11 Monique's declaration and deposition testimony also establish a genuine issue of material fact as to whether

13 Wash.App.2d 212

Whitemarsh treated her mental health issues. In her declaration, Monique claimed that Whitemarsh offered to prescribe her antidepressants and counseled her for depression. In her deposition, she stated that Whitemarsh had spoken to her about her postpartum depression, asked questions about how she felt, and offered to prescribe her antidepressants. Viewing this evidence in the light most favorable to the Messengers, one could reasonably conclude that Whitemarsh provided Monique with mental health services.

¶12 The Estate argues that the trial court properly applied the dead man's statute to bar this evidence. "The [dead man]'s statute, RCW 5.60.030, bars testimony by a ‘party in interest’ regarding ‘transactions’ with the decedent or statements made to [them] by the decedent." Estate of Lennon v. Lennon, 108 Wash. App. 167, 174, 29 P.3d 1258 (2001). Assuming without deciding that the dead man's statute would normally bar Monique's declaration and deposition, we conclude that the Estate waived the statute's protections by introducing Monique's medical records. Thus, the Messengers may introduce Monique's declaration and deposition if they rebut evidence of Monique's visits to Whitemarsh that are present in the introduced medical records.

¶13 We review de novo the admissibility of evidence in summary judgment proceedings. Parks v. Fink, 173 Wash. App. 366, 375, 293 P.3d 1275 (2013). Introduction of documents written or executed by the deceased, including medical records, does not typically waive the protections of the dead man's statute. Erickson v. Robert F. Kerr, M.D., P.S., Inc., 125 Wash.2d 183, 188–89, 883 P.2d 313 (1994). In Erickson, the Erickson estate introduced the decedent patient Erickson's medical records, written by the doctor against whom they asserted medical malpractice. 125 Wash.2d at 187, 883 P.2d 313. Our Supreme Court determined that the Erickson estate did not waive the protections of the dead man's statute because the records were made contemporaneous with

13 Wash.App.2d 213

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