Repin v. State

• Decision Date: 21 March 2017
• Docket Number: No. 34049-0-III,34049-0-III
• Citation: 198 Wash.App. 243,392 P.3d 1174
• Court: Washington Court of Appeals
• Parties: Robert REPIN, Petitioner, v. STATE of Washington; Washington State University; and Margaret Cohn-Urbach, BVSC; and Does 1-10, Respondents.

198 Wash.App. 243

392 P.3d 1174

Robert REPIN, Petitioner,

v.STATE of Washington; Washington State University; and Margaret Cohn-Urbach, BVSC; and Does 1-10, Respondents.

No. 34049-0-III

Court of Appeals of Washington, Division 3.

March 21, 2017

Adam Phillip Karp, Animal Law Offices of Adam P. Karp, 114 W. Magnolia St., Ste. 425, Bellingham, WA, 98225-4354, for Petitioner.

Jason D. Brown, Washington State Office of the Attorney, 1116 W. Riverside Ave., Ste. 100, Spokane, WA, 99201-9106, for Respondents.

Heather Aubree Hedeen, Attorney at Law, 701 5th Ave., Ste. 6800, Seattle, WA, 98104-7066, as Amicus Curiae on behalf of Et Al. WA St. Vet. Asso.; AKC; Cat Fanciers; Animal Health Inst.

Claire Loebs Davis, Kristin Beneski, Lane Powell PC, P.O. Box 91302, 1420 5th Ave., Ste. 4200, Seattle, WA, 98111-9402, as Amicus Curiae on behalf of Animal Legal Defense Fund.

Fearing, C.J.¶1 Robert Repin sues Washington State University (WSU) and WSU veterinarian, Dr. Margaret Cohn-Urbach, for conduct arising from the euthanasia of his beloved Alaskan Malamute, Kaisa. Repin alleges that Cohn-Urbach, with gross negligence, performed the euthanasia and thereby caused Kaisa pain and prolonged her death. Cohn-Urbach also purportedly failed to fully inform him of the repercussions of the method of euthanasia. Repin pleads causes of action in breach of contract, reckless breach of contract, professional negligence, lack of informed consent/negligent misrepresentation by omission, intentional or reckless infliction of emotional distress, and conversion/trespass to chattels or trespass on the case.

WSU and Cohn-Urbach moved for summary judgment to dismiss all claims. The trial court dismissed the lack of informed consent/negligent misrepresentation by omission, intentional and/or reckless infliction of emotional distress, conversion, and trespass claims. The trial court also ruled, as a matter of law, that Repin could not recover emotional distress damages for a reckless breach of contract. We affirm all of the trial court's rulings.

FACTS

¶2 Since the trial court granted WSU and Dr. Margaret Cohn-Urbach (collectively WSU) summary judgment in part, we recount the facts in a light favorable to Robert Repin. This factual statement occasionally, however, adds WSU's version of the facts.

¶3 Plaintiff Robert Repin is a single man, with no children, who works as a gold prospector. In 2001, Repin adopted Kaisa, an Alaskan Malamute puppy, who his niece rescued. Kaisa grew to become an indispensable part of Repin's reclusive life.

¶4 In September 2012, Kaisa fell ill. After a grim night, Robert Repin took Kaisa to an emergency veterinarian. The veterinarian diagnosed Kaisa with cancer

and prescribed medication for her. Repin then transported Kaisa to Kaisa's regular veterinarian, who recommended a visit to the WSU Veterinary Teaching Hospital.

¶5 On September 26, Robert Repin drove Kaisa from Cle Elum to Pullman and presented Kaisa to WSU's Veterinary Teaching Hospital. Jasmine Feist and another fourth-year veterinary student registered Kaisa with the hospital. Feist placed Kaisa in the intensive care unit and inserted a catheter in Kaisa's left front leg. Hours later, defendant Dr. Margaret Cohn-Urbach, an intern at the hospital, examined Kaisa. During this time, Repin remained with Kaisa.

¶6 Following radiographs

, Veterinary Teaching Hospital clinicians diagnosed Kaisa with metastatic cancer. Staff predicted Kaisa would live only several months. Robert Repin insisted on a consultation with an expert. Repin spoke, on the phone, with Dr. Kevin Choy, an oncologist, who agreed with the diagnosis of metastatic cancer. WSU veterinarians recommended euthanasia.

¶7 After reflection, Robert Repin directed the Veterinary Teaching Hospital to euthanize Kaisa. Repin viewed the WSU hospital to be the best at veterinary medicine. He did not wish Kaisa to undergo weeks of agony.

¶8 Robert Repin requested that he sign paperwork before the euthanasia because he did not trust his mental state after the procedure. He signed a Washington State University Veterinary Teaching Hospital consent for euthanasia form. The form read, in relevant part:

I, the undersigned, do hereby certify that I am the owner (or duly authorized agent of the owner) of the animal described above; that I hereby give the clinicians of the Washington State University Veterinary Teaching Hospital full and complete authority to humanely destroy the aforementioned animal....

....

I hereby release the Washington State University Veterinary Teaching Hospital, their agents, and representatives, from any and all liability for said animal.

Clerk's Papers (CP) at 126. Repin denies seeing the release language because of his distraught state of mind. No hospital employee discussed the language with him. Repin checked the form's box directing Kaisa's remains be returned to him rather than studied at the hospital. Repin paid $260.56 for the euthanasia.

¶9 Robert Repin and a Veterinary Teaching Hospital attendant walked Kaisa from the intensive care unit to the euthanasia room, euphemistically labeled the quiet room. Dr. Margaret Cohn-Urbach then described the procedure to Repin. Cohn-Urbach advised that Kaisa would be administered a mild sedative to relax her and thereafter dispensed Euthasol, a drug that would stop the Malamute's heart and allow a peaceful death. According to Dr. Cohn-Urbach, she informed Robert Repin that, as Kaisa passes, she may have deep gasps, tremors, and other adverse effects. Repin claims Cohn-Urbach only warned that Kaisa might take a deep breath and exhibit a slight leg twitch.

¶10 Robert Repin laid on the quiet room floor with Kaisa. Dr. Margaret Cohn-Urbach told Robert Repin the hospital procedure would commence. According to Margaret Cohn-Urbach and Jasmine Feist, Feist performed the euthanasia, while Cohn-Urbach supervised. Repin contends that Cohn-Urbach performed the procedure.

¶11 According to Robert Repin, he heard Jasmine Feist exclaim: "[O]h, look, Kaisa has chewed off the end of her catheter, should I go get another one?" CP at 62. Margaret Cohn-Urbach responded: "[N]o. I will show you how to still make this one work." CP at 62. Repin did not look at the catheter and never observed Kaisa chewing the catheter. Feist and Cohn-Urbach deny any such conversation or Kaisa chewing the catheter.

¶12 Robert Repin contends that no hospital staff member flushed the catheter to ensure patency, a medical term for open or unobstructed. Dr. Margaret Cohn-Urbach and Jasmine Feist both declare that one of them flushed 20 milliliters (ml) of saline solution through the catheter. Each avers that the saline flushed unimpeded and that she lacked any concern regarding patency.

¶13 Kaisa slept on the quiet room floor when the veterinarians began the euthanasia. After the flushing, Either Dr. Margaret Cohn-Urbach or Jasmine Feist injected 1.1 ml of Acepromazine into the catheter. Five to ten minutes later, either Cohn-Urbach or Feist started the second injection. Repin turned from observing the injection. Repin describes the ensuing events:

[Kaisa] woke up screaming. She was on her feet panicking, screaming in agony. I said, What the fuck is going on here? I said, this can't fucking be happening. I had to wrestle [Kaisa] back to the floor. I had to hold her down and listen to her scream. [Dr. Cohn-Urbach] and [Feist] had backed up against the wall. They didn't know what the fuck to do. Jasmine said, My God, it's not working. What should we do, she says? My dog didn't know what the fuck was going on. She would have tore those girls apart if I let go of her. All she knew was she was in fucking pain and she wanted to get out of there and I had to hold her down.... [Feist] said somewhere, What do we do? Should I go get another catheter? [Dr. Cohn-Urbach] says, I'm out of medication. I said, This can't be fucking happening.

CP at 67-68.

¶14 According to Robert Repin, Dr. Margaret Cohn-Urbach left the quiet room and retrieved more Euthasol. Repin believes five to seven minutes passed between the two injections of Euthasol, during which time Kaisa constantly struggled on her two front feet, while Repin toiled to restrain her. Kaisa's agony never ceased. On Cohn-Urbach's return, Repin rolled Kaisa on her back to afford Cohn-Urbach a clear shot at her right forelimb. Jasmine Feist and Repin restrained Kaisa as Cohn-Urbach injected Euthasol into the right forelimb. Fifteen seconds later, Kaisa expired.

¶15 According to Jasmine Feist, Kaisa lifted her head and upper torso and uttered one loud howl at the end of the first Euthasol injection. Kaisa did not scream in agony. Dr. Margaret Cohn-Urbach leaped to her feet and exited the quiet room. Robert Repin grabbed Kaisa around the neck and held her. Kaisa lay down and emitted large breaths. Kaisa died after she slouched. Feist estimates Dr. Cohn-Urbach left the room for up to two minutes.

¶16 According to Dr. Margaret Cohn-Urbach, Kaisa uttered three howls and gazed at her left leg, which Jasmine Feist handled. Kaisa did not act violently or thrash. As Kaisa reacted, Cohn-Urbach observed Robert Repin's unhappiness. Dr. Cohn-Urbach decided to hurry the euthanasia. She left the quiet room for more Euthasol and returned within two minutes. Cohn-Urbach injected the Euthasol directly into the cephalic vein in Kaisa's right leg. As Dr. Cohn-Urbach administered the second dose of Euthasol, Kaisa howled again. After the second injection, Kaisa died.

¶17 After Kaisa expired, Dr. Margaret Cohn-Urbach offered Robert Repin a trash bag for Kaisa's remains, a suggestion that offended Repin. Repin removed Kaisa on a gurney from the Veterinary Teaching Hospital to his car, while colorfully expressing displeasure.

¶18 Dr. Margaret Cohn-Urbach wrote in her clinical notes concerning the euthanasia:

During the euthanasia procedure, Kaisa showed a reaction to the injection of 20ml of Euthasol through an 18G catheter in the left cephalic vein. The catheter was tested prior to injection of the Euthasol

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