Reagan v. Newton

• Decision Date: 05 March 2019
• Docket Number: No. 50662-9-II,50662-9-II
• Citation: 436 P.3d 411,7 Wash.App.2d 781
• Court: Washington Court of Appeals
• Parties: Denise REAGAN, Appellant, v. St. Elmo NEWTON, III, M.D., Respondent.

7 Wash.App.2d 781

436 P.3d 411

Denise REAGAN, Appellant,

v.St. Elmo NEWTON, III, M.D., Respondent.

No. 50662-9-II

Court of Appeals of Washington, Division 2.

Filed March 5, 2019

Bruce Colven, Caron Colven Robison & Shafton, 900 Washington St. Ste. 1000, Vancouver, WA, 98660-3455, for Appellant.

Lauren Michelle Martin, Bennett Bigelow & Leedom, P.S., 601 Union St. Ste. 1500, Seattle, WA, 98101-1363, Amber L. Pearce, Floyd, Pflueger & Ringer, P.S., 200 W Thomas St. Ste. 500, Seattle, WA, 98119-4296, for Respondent.

PUBLISHED OPINION

Maxa, C.J.¶1 Denise Reagan appeals the trial court’s dismissal on summary judgment of a medical malpractice lawsuit she filed against Dr. St. Elmo Newton. Reagan alleges that Dr. Newton injured her while conducting an independent medical examination (IME) on her. The trial court granted summary judgment in favor of Dr. Newton because Reagan did not present expert testimony that Dr. Newton violated the standard of care as required to maintain a medical malpractice action under chapter 7.70 RCW. The court also disregarded without comment Reagan’s medical battery claim that she had not pleaded but had raised in opposition to summary judgment.

¶2 RCW 7.70.010 states that the substantive and procedural requirements of chapter 7.70 RCW, the medical malpractice statute, apply to actions regarding injuries "occurring as a result of health care." RCW 7.70.030, which establishes the grounds for a medical malpractice claim, also applies to injuries "occurring as the result of health care." The primary question here is whether a physical examination during an IME that causes injury to the person being examined constitutes "health care" governed by chapter 7.70 RCW. In addition, a question exists whether a person injured during an IME also can maintain a common law medical battery claim against the IME physician.

¶3 We hold that (1) a physical examination during an IME that causes injury to the person being examined constitutes "health care" under RCW 7.70.010 and therefore Reagan was required to present expert testimony regarding breach of the standard of care, (2) the trial court properly dismissed Reagan’s medical malpractice claim against Dr. Newton because she did not present expert testimony addressing the applicable standard of care or whether Dr. Newton had breached that standard of care, and (3) Reagan can maintain a claim for medical battery under CR 15(b) even though she did not plead that claim and Reagan presented evidence in opposition to summary judgment that created a genuine issue of material fact regarding Dr. Newton’s liability for medical battery.

¶4 Accordingly, we affirm the trial court’s dismissal of Reagan’s medical malpractice claim, but we reverse the trial court’s dismissal of Reagan’s medical battery claim and remand for further proceedings.

FACTS

¶5 In June 2013, Reagan injured her back while in the course of her employment. She filed a workers’ compensation claim with the Department of Labor and Industries (DLI). DLI accepted Reagan’s claim for injuries to her thoracic and cervical regions.

¶6 DLI

subsequently requested that Reagan undergo an IME. The IME’s purpose was to determine Reagan’s current work restrictions, if she could return to work, if her treatment had concluded, and whether she had a permanent impairment as a result of the injury. DLI also requested that the IME provider make treatment recommendations, including stating whether treatment was curative or rehabilitative, the goals of treatment, and the estimated length and prognosis of treatment.

¶7 In May 2014, Dr. Newton, an orthopedic physician, and Dr. Dennis Chong, a physiatrist, performed Reagan’s IME. Reagan’s sister-in-law, Lisa Wilson, accompanied her to the examination and remained in the room throughout the exam.

¶8 Reagan told Dr. Newton that she had a previous injury to her left hip. During his physical examination, Dr. Newton had Reagan lie on her back. He then bent her left knee toward her chest and rotated her bent knee from the hip joint. Reagan told Dr. Newton that her hip would not rotate any further because of her previous injury, but Dr. Newton pushed her leg all the way down. Reagan screamed in pain, and Dr. Newton stated, "That was the reaction I was looking for." Clerk’s Papers (CP) at 110. Wilson also recalls Reagan telling Dr. Newton "that’s as far as it goes" before he "yanked" on her leg, Regan crying out in pain, and Dr. Newton commenting about Reagan’s reaction. CP at 113-114. As a result of this maneuver, Reagan experienced excruciating pain in her hip. Wilson, who drove Reagan home, stated that Reagan continued to experience pain and discomfort after the IME concluded.

¶9 Reagan subsequently filed a lawsuit against Dr. Newton in which she alleged that his negligence in manipulating her hip during the IME caused her injury. The complaint requested a judgment against Dr. Newton for damages suffered as a result of his negligence. The complaint did not assert a claim for medical battery.

¶10 Dr. Newton moved for summary judgment on liability. Specifically, he claimed that Reagan had failed to present expert testimony required to support a claim under RCW 7.70.030(1) that he had breached the appropriate standard of care during his examination of Reagan.

¶11 Reagan opposed the summary judgment motion, claiming that chapter 7.70 RCW did not apply to her claim because Dr. Newton was not providing "health care" during the IME. She also asserted in her brief that she could recover under a theory of medical battery.

¶12 Reagan submitted declarations from Dr. Bruce Blackstone, who saw her for a subsequent IME in January 2015, and from Dr. Mark Colville, who performed her original hip surgery

. Dr. Blackstone characterized Reagan’s "acute onset of left hip pain that occurred during the IME of May 13, 2014" as "an aggravation of pre-existing arthritis, which is actually attributable to her work-related injury suffered back in 2008." CP at 127-28. Dr. Colville also attributed the left hip pain to "the manipulation performed during her independent medical exam [of May 2014]," finding that it had "aggravated a preexisting osteoarthritic condition of the left hip." CP at 142. But neither physician offered any opinion regarding the appropriate standard of care or whether Dr. Newton followed that standard of care during the IME.

¶13 Dr. Newton’s reply brief did not mention medical battery. But the parties addressed the claim on the merits during oral argument, and Dr. Newton did not argue that the trial court should not consider the medical battery claim because it had not been pleaded. The court did not address medical battery during argument or in its summary judgment order.

¶14 The trial court granted summary judgment in favor of Dr. Newton and dismissed Reagan’s claims. Reagan appeals the trial court’s summary judgment order.

ANALYSIS

A. SUMMARY JUDGMENT STANDARD

¶15 Our review of a dismissal on summary judgment is de novo. Frausto v. Yakima HMA, LLC , 188 Wash.2d 227, 231, 393 P.3d 776 (2017). We review all evidence and reasonable inferences in the light most favorable to the nonmoving party. Keck v. Collins , 184 Wash.2d 358, 368, 357 P.3d 1080 (2015). We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 370, 357 P.3d 1080 ; CR 56(c). A genuine issue of material fact exists if reasonable minds could disagree on the facts controlling the outcome of the case. Sutton v. Tacoma Sch. Dist. No. 10 , 180 Wash. App. 859, 864-65, 324 P.3d 763 (2014).

¶16 The party moving for summary judgment has the initial burden to show there is no genuine issue of material fact. Zonnebloem, LLC v. Blue Bay Holdings, LLC , 200 Wash. App. 178, 183, 401 P.3d 468 (2017). A moving defendant can meet this burden by showing that there is an absence of evidence to support the plaintiff’s claim. Id. Once the defendant has made such a showing, the burden shifts to the plaintiff to present specific facts that show a genuine issue of material fact. Id. Summary judgment is appropriate if a plaintiff fails to show sufficient evidence to establish the existence of an essential element on which he or she will have the burden of proof at trial. Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co. , 176 Wash. App. 168, 179, 313 P.3d 408 (2013).

B. APPLICABILITY OF MEDICAL MALPRACTICE STATUTE

¶17 Reagan argues that the medical malpractice statute, chapter 7.70 RCW, does not apply here because an IME does not involve "health care." We disagree.

1. Legal Background

¶18 Chapter 7.70 RCW modified "certain substantive and procedural aspects of all civil actions and causes of action, whether based on tort, contract, or otherwise, for damages for injury occurring as a result of health care ." RCW 7.70.010 (emphasis added). Chapter 7.70 RCW exclusively governs any action for damages based on an injury resulting from health care. Fast v. Kennewick Pub. Hosp. Dist. , 187 Wash.2d 27, 34, 384 P.3d 232 (2016).

¶19 Chapter 7.70 RCW does not define the phrase "health care." Beggs v. Dept. of Soc. & Health Servs. , 171 Wash.2d 69, 79, 247 P.3d 421 (2011). RCW 7.70.020 defines "health care provider" to include not only physicians but also a wide variety of persons "licensed by this state to provide health care or related services." RCW 7.70.020(1).

¶20 To recover damages for "injury occurring as the result of health care ," a plaintiff must establish at least one of three propositions:

(1) That injury resulted from the failure of a health care provider to follow the accepted standard of care;

(2) That a health care provider promised the patient or his or her representative that the injury suffered would not occur;

(3) That injury resulted from health care to which the patient or his or her representative did not consent.

RCW 7.70.030 (emphasis added).

¶21 For a damages claim based on a health care provider’s failure to follow the accepted...