Strickland v. Deaconess Hosp.

• Decision Date: 24 March 1987
• Docket Number: No. 7149-9-III,7149-9-III
• Citation: 735 P.2d 74,47 Wn.App. 262
• Parties: Gilbert STRICKLAND; James Weaver and Dawn Weaver, husband and wife; Robert Weaver and Gaylene Weaver, husband and wife, Appellants, v. DEACONESS HOSPITAL; Donald D. Storey, M.D., and Jane Doe Storey, his wife; Associated Internists, P.S., a Washington corporation, Respondents.
• Court: Washington Court of Appeals

Page 262

47 Wn.App. 262

735 P.2d 74

Gilbert STRICKLAND; James Weaver and Dawn Weaver, husband and wife; Robert Weaver and Gaylene Weaver husband and wife, Appellants, v. DEACONESS HOSPITAL; Donald D. Storey, M.D., and Jane Doe Storey, his wife; Associated Internists, P.S., a Washington corporation, Respondents.

No. 7149-9-III.

Court of Appeals of Washington Division 3, Panel Four.

March 24, 1987.

As Amended April 2, 1987.

Review Denied July 1, 1987.

Leonard W. Schroeter, Schroeter, Goldmark & Bender, Seattle, for appellants.

Patrick E. Connelly, on the brief, MacGillivray & Jones, Dan W. Keefe, Keefe & King, William D. Symmes/Leslie R. Weatherhead, Witherspoon, Kelley, Davenport & Toole, Spokane, for respondents.

THOMPSON, Judge.

The personal representatives for Gilbert Strickland and Robert Weaver, ¹ and the Weavers ² appeal the summary judgment dismissal of their claims of outrage, and constitutional and common law violations of privacy. We affirm.

On October 21, 1981, Gilbert Strickland suffered cardiopulmonary failure and was admitted to Deaconess Hospital where he was placed on a respirator in intensive care. Mr. Strickland's treating physician, Dr. Donald D. Storey, began to "wean" Mr. Strickland from his respirator within a day or two. On October 26, without obtaining Mr. Strickland's consent, Dr. Storey entered a "no code" order on the medical chart, which meant if the patient experienced cardiac or respiratory arrest, no resuscitation measures would be implemented. Dr. Storey testified he obtained the consent of Mr. Strickland's mother in Georgia prior to entering the order on the chart, but she disputes that fact.

On October 27, 1981, James and Robert Weaver came to visit Mr. Strickland at the hospital. The Weavers were the sons of Joan Weaver, whose marriage to Mr. Strickland was invalidated upon discovery that she was still bound by a previous marriage. Neither James nor Robert was adopted by Mr. Strickland, and it had been many years since they had been members of the Strickland household. Observing Mr. Strickland's distress after removal of the respirator, the Weavers demanded he be reconnected. This occurred, and Dr. Storey withdrew the "no code" order.

Mr. Strickland recovered and checked himself out of the hospital November 8, 1981. In February 1983, Mr. Strickland and the Weavers brought an action against the hospital, Dr. Storey, and Associated Internists, P.S., on the theories of negligence, lack of informed consent, and outrage. The complaint was amended to include a constitutional right to privacy claim. Later in 1983, both Mr. Strickland and Robert Weaver died, and in September 1984, the hospital, Dr. Storey, and Associated Internists moved for summary judgment on the grounds: (1) neither Mr. Strickland's nor Robert Weaver's causes of action survived their deaths, and (2) the remaining Weavers lacked standing as relatives to assert claims of emotional distress/outrage.

The trial court granted summary judgment, dismissing the claims. The personal representatives for Mr. Strickland and Robert Weaver, and the Weavers appeal.

We are first asked to determine whether Mr. Strickland's claims involving his constitutional right to privacy and common law right to be free from bodily invasion were barred under the general survival statute. RCW 4.20.046(1) provides in relevant part:

All causes of action by a person or persons against another person or persons shall survive to the personal representatives of the former and against the personal representatives of the latter, whether such actions arise on contract or otherwise, and whether or not such actions would have survived at the common law or prior to the date of enactment of this section: Provided, however, That no personal representative shall be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased.

This statute applies to actions brought by a personal representative on behalf of the estate for injuries suffered by a decedent that did not cause the decedent's death. Higbee v. Shorewood Osteopathic Hosp., 105 Wash.2d 33, 37-38, 711 P.2d 306 (1985); Walton v. Absher Constr. Co., 101 Wash.2d 238, 245, 676 P.2d 1002 (1984). Although this statute provides all causes of action survive to the personal representative, the original statute was amended to add a proviso precluding recovery of damages for "pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased". House Journal, 37th Legislature (1961), at 923; Higbee, 105 Wash.2d at 36, 711 P.2d 306.

That limitation precludes Mr. Strickland and Robert Weaver from recovering damages for outrage; however, we are asked to determine whether Mr. Strickland's constitutionally-based privacy claims escape the application of the proviso. Although the issue is ordinarily framed in terms of an individual's decision to refuse life sustaining treatment, we adhere to the fundamental common law and constitutional principles that "competent adults have a right to determine what shall be done to their own bodies". In re Schuoler, 106 Wash.2d 500, 506, 723 P.2d 1103 (1986); In re Colyer, 99 Wash.2d 114, 120-21, 660 P.2d 738 (1983). The merits of Mr. Strickland's case have not been reached and we make no judgment as to the facts alleged by plaintiff since no trial has occurred.

Nevertheless, notwithstanding the merits of the claims and the importance of the issues raised as they pertain to patient rights, recovery under the survival statute is limited to the prospective net accumulations of the deceased, Criscuola v. Andrews, 82 Wash.2d 68, 70, 507 P.2d 149 (1973), and is not provided for injuries "personal to that individual and essentially represent[ing] pain and suffering". Wooldridge v. Woolett, 96 Wash.2d 659, 666, 638 P.2d 566 (1981).

In setting forth the basis for the right of personal privacy under the Constitution, the court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ruled "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' are included in this guarantee of personal privacy ". (Citations omitted. Italics ours.) Roe, 410 U.S. at 152, 93 S.Ct. at 726. Damages under this theory are clearly "personal to and suffered by a deceased", RCW 4.20.046(1), and as such do not survive to the personal representative.

Mr. Strickland's constitutional claim is also being advanced under title 42 U.S.C. § 1983, which was intended to create "a species of tort liability' in favor of persons who are deprived of 'rights, privileges, or immunities secured' to them by the Constitution". Carey v. Piphus, 435 U.S. 247, 253, 98 S.Ct. 1042, 1046, 55 L.Ed.2d 252, 258 (1978). The application of state survivorship statutes to section 1983 actions in cases where the constitutional deprivation does not cause death was addressed in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). Robertson held that since no federal survival provision existed, state law would apply in section 1983 actions if it was not inconsistent with federal law, i.e., had no "independent adverse effect on the policies underlying § 1983." Robertson, 436 U.S. at 594, 98 S.Ct. at 1997. Although an adverse effect might be found where state law does not provide survival of any tort actions or where it significantly restricts the type of actions that survive, the section 1983 policies of (1) compensating those injured by a deprivation of rights and (2) preventing the abuse of state power, are not undermined by abating the action against "one who is merely suing as the executor of the deceased's estate". Robertson, 436 U.S. at 592, 98 S.Ct. at 1996.

We recognize the policies behind section 1983 go beyond compensating the individual and seek to deter state abuse; nonetheless, the damages available under this section are personal and in the nature of anxiety, emotional distress, and humiliation. See Carey, 435 U.S. at 262-64, 98 S.Ct. at 1051, 1052. See also Brink v. Griffith, 65 Wash.2d 253, 258, 396 P.2d 793 (1964) (invasion of privacy action primarily concerned with compensation for injured feelings or mental suffering). The summary judgment ruling was correct.

The next issue is whether the Weavers have standing to bring a claim of outrage. Washington has adopted the elements of outrage as stated in the Restatement (Second) of Torts § 46 (1965):

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress ...

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time ...

(Italics ours.) Lund v. Caple, 100 Wash.2d 739, 742, 675 P.2d 226 (1984); Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 737 n. 1, 565 P.2d 1173 (1977); Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291, 77 A.L.R.3d 436 (1975).

The Weavers contend the closeness of the relationship which developed during the years they were raised in Mr. Strickland's household brings them within the class of "immediate family" entitled to sue for outrage. They point to Grimsby's reference to comment 1 of section 46 of the Restatement, which states in part:

Furthermore, the decided cases in which recovery has been allowed have been those in which the plaintiffs have been near relatives, or at least close associates, of the person attacked.

(Italics ours.) Restatement, at 79. The respondents argue the Weavers were not adopted, nor were they stepchildren, since Mr. Strickland's marriage to their mother was invalidated.

In adopting the Restatement elements of outrage, the Grimsby court explained their liability-limiting nature, Grimsby, at 59, 530 P.2d 291; moreover, in the context of...