Thompson v. Grays Harbor Community Hosp.

• Citation: 675 P.2d 239,36 Wn.App. 300
• Decision Date: 23 December 1983
• Docket Number: No. 5551-1-II,5551-1-II
• Parties: Dr. Shahnaz THOMPSON, Appellant, v. GRAYS HARBOR COMMUNITY HOSPITAL; Dr. James D. Leitzel and Jane Doe Leitzel, husband and wife; Helen Jordan and John Doe Jordan, husband and wife; Jane Clark and John Doe Clark, husband and wife; Ken Widders; Dr. Charles Ward and Jane Doe Ward, husband and wife; Dr. Robert Wachtel and Jane Doe Wachtel; husband and wife; Dr. Wayne Howard Bryant and Jane Doe Bryant, husband and wife; R.J. Vanderslice and Ruth Vanderslice, husband and wife; Dr. Robert D. Fulton and Jane Doe Fulton, husband and wife; and Dr. Peter Koeniger and Electra Koeniger, husband and wife, Respondents.
• Court: Court of Appeals of Washington

Page 300

36 Wn.App. 300

675 P.2d 239

Dr. Shahnaz THOMPSON, Appellant, v. GRAYS HARBOR COMMUNITY HOSPITAL; Dr. James D. Leitzel and Jane Doe Leitzel, husband and wife; Helen Jordan and John

Doe Jordan, husband and wife; Jane Clark and John Doe

Clark, husband and wife; Ken Widders; Dr. Charles Ward and

Jane Doe Ward, husband and wife; Dr. Robert Wachtel and

Jane Doe Wachtel; husband and wife; Dr. Wayne Howard

Bryant and Jane Doe Bryant, husband and wife; R.J.

Vanderslice and Ruth Vanderslice, husband and wife; Dr.

Robert D. Fulton and Jane Doe Fulton, husband and wife; and

Dr. Peter Koeniger and Electra Koeniger, husband and wife,

Respondents.

No. 5551-1-II.

Court of Appeals of Washington,

Division 2.

Dec. 23, 1983.

John A. Hoglund, Olympia, for appellant.

A. Clarke Johnson, Tacoma, for respondents.

REED, Judge.

Dr. Shahnaz Thompson urges us to restore a jury verdict awarding her $90,000 damages against Grays Harbor Community Hospital for tortious interference with her medical practice. The verdict was set aside by the trial court as it granted the hospital's motion for judgment n.o.v. and in the alternative, a new trial. The hospital defends the judgment n.o.v. on the grounds: (1) that the evidence was insufficient to support the jury's verdict; and (2) the verdict, based on vicarious liability, was inconsistent with the jury's exoneration of the hospital's named agents. The hospital defends the granting of a new trial on the ground that it was within the trial court's discretion to do so. For reasons that follow, we disagree and reverse.

Dr. Thompson, a pediatrician, opened a practice in Grays Harbor County in 1975. At first her pediatrics workload increased. Later, that portion of her practice attributable to pediatrics took a decidedly downward trend. Dr. Thompson believed this decline was caused by doctors and other staff persons at Grays Harbor Community Hospital intentionally demeaning her and interfering with her practice. She brought this lawsuit naming the hospital and several of the hospital personnel individually as defendants. Dr. Robert Patton, an economics expert appearing on behalf of Dr. Thompson, testified that during the period of time the arguably tortious conduct occurred, Dr. Thompson's pediatrics practice deteriorated drastically. He estimated that this decline represented a loss to Dr. Thompson in excess of $100,000. Rebuttal testimony, however, suggested that the decline coincided with an increase in the number of pediatricians practicing in the area and with the plaintiff's loss of privileges at Grays Harbor Community Hospital. The hospital was a primary source of new pediatric patients. In addition, other witnesses expressed the opinion that Dr. Thompson lost patients because of her abrasive personality and questionable medical practices and beliefs.

We consider first the trial court's order granting judgment notwithstanding the jury's verdict. When ruling on a motion for judgment n.o.v., a trial judge exercises no discretion. Sepich v. Department of Labor & Indus., 75 Wash.2d 312, 450 P.2d 940 (1969). Indeed, the motion must be denied unless the court can say, as a matter of law, after viewing the evidence and reasonable inferences therefrom most favorably to the nonmoving party, there is no substantial evidence supporting the verdict. Belli v. Shaw, 98 Wash.2d 569, 576, 657 P.2d 315 (1983); Hojem v. Kelly, 93 Wash.2d 143, 145, 606 P.2d 275 (1980). Substantial evidence must be more than a mere scintilla and be of such character as would convince an unprejudiced, thinking mind of the truth of the declared premise. Arnold v. Sanstol, 43 Wash.2d 94, 98, 260 P.2d 327 (1953). In other words, the motion for judgment n.o.v. should have been denied if Dr. Thompson established a prima facie case. See Hemmen v. Clark's Restaurant Enterprises, 72 Wash.2d 690, 434 P.2d 729 (1967).

To establish a prima facie case, Dr. Thompson had the burden of producing evidence that she "had a relationship with others contemplating a contract, with at least a reasonable expectancy of fruition, that this relationship was known, or reasonably apparent, to the interferor, and that the interference which caused the termination of the relationship or expectancy was intentional." King v. Seattle, 84 Wash.2d 239, 247, 525 P.2d 228 (1974). ¹ Further, Dr. Thompson was required to produce evidence that the tortious acts of the hospital's agents were the proximate cause of her damages--damages which Dr. Thompson also had to establish with reasonable certainty.

Looking at the evidence in a light most favorable to Dr. Thompson, as we must, we conclude that there was sufficient evidence to establish a prima facie case of tortious interference with her business relationships and expectations. Various parents testified they took their children to the emergency room at Grays Harbor Community Hospital and asked for Dr. Thompson. According to the witnesses the hospital staff made them wait longer, told them falsely Dr. Thompson was not available and made disparaging remarks about her. In some cases the parents were encouraged to have their children treated by the house physician instead of by Dr. Thompson. Some of the parents followed this advice. ² If believed, this evidence suffices to establish the elements of the tort of intentional interference with Dr. Thompson's business relationships and expectancies, as that tort was defined for the jury. It also establishes injury through loss of patients.

The more troublesome proof is of the causal link between the dramatic downturn in Dr. Thompson's pediatric practice and the tortious conduct of hospital employees. The evidence on this issue was highly conflicting. The hospital presented evidence forcefully suggesting that there were other or additional reasons why Dr. Thompson's practice floundered. We must, however, disregard conflicting evidence unfavorable to Dr. Thompson. Looking only at the tortious conduct of the hospital staff and the coinciding decline in Dr. Thompson's practice, it is within the realm of reasonable inference that the tortious conduct was the proximate cause of the business decline. A verdict does not rest on speculation or conjecture when founded upon reasonable inferences drawn from circumstantial facts. State Farm Ins. Co. v. Padilla, 14 Wash.App. 337, 540 P.2d 1395 (1975).

The only element of a prima facie case that remains unsettled is whether Dr. Thompson established her damages with reasonable certainty. Regarding her claimed economic loss, our inquiry need go no further than the testimony of Dr. Robert Patton. He testified that the decline in Dr. Thompson's practice represented a loss exceeding $100,000. Added to this was testimony that Dr. Thompson suffered mental distress, anguish and inconvenience, elements which the jury was instructed they could consider in awarding her compensation. Consequently, there was substantial evidence from which a jury could have fixed the amount of Dr. Thompson's loss with reasonable certainty. Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041 (1976); Reefer Queen Co. v. Marine Const. and Design Co., 73 Wash.2d 774, 440 P.2d 448 (1968).

Although Dr. Thompson presented sufficient evidence to establish a prima facie case, judgment notwithstanding the verdict must stand if there are circumstances which relieve the hospital of liability as a matter of law. Cf. King v. Seattle, supra. In her lawsuit, Dr. Thompson named certain doctors and nurses, employees of Grays Harbor Community Hospital, as individual defendants. All of the named employees were exonerated either by dismissal prior to submission of the case to the jury, or by the verdict. Consequently, the hospital maintains that it is relieved of any liability it might otherwise have under the theory of respondeat superior ³ because of the rule of Doremus v. Root, 23 Wash. 710, 63 P. 572 (1901): "If the employee who causes the injury is free from liability therefor, his employer must also be free from liability." See also, Brink v. Martin, 50 Wash.2d 256, 310 P.2d 870 (1957); Restatement (Second) of Agency § 217B(2) (1958); Annot: Inconsistent Verdict--New Trial, 16 A.L.R.2d 969 (1951). Dr. Thompson, however, argues that the rule of Doremus does not control in the instant context because the jury could have based the hospital's derivative liability on the tortious conduct of certain unnamed employees. Specifically, Dr. Thompson points to the testimony of various witnesses implicating unidentified nurses and other hospital staff in arguably tortious conduct.

We agree with Dr. Thompson. The Doremus rule has no application where the liability of the principal is not based solely on the acts of the named agent. Hansch v. Hackett, 190 Wash. 97, 66 P.2d 1129 (1937); Senske v. Washington Gas & Elec. Co., 165 Wash. 1, 4 P.2d 523 (1931). The Hansch case was a negligence action against a doctor and a hospital. The court upheld a jury verdict which exonerated the doctor but found the hospital liable, because the proof was such that the jury could have found one or more of four other hospital employees negligent. Thus, a finding that the only named employee was not negligent did not ipso facto release the hospital from liability. Hansch, 190 Wash. at 101-02, 66 P.2d 1129. In the instant case testimony establishing tortious conduct of other unnamed employees of the hospital was admitted without objection. Thus, the issue of liability based on these acts was "tried by implied consent of the parties ... as if [it] had been raised in the pleadings." CR 15(b). Fenton v. Contemporary Dev. Co., 12 Wash.App. 345, 349, 529 P.2d 883 (1974); Meeker v. Howard, 7 Wash.App. 169, 175, 499 P.2d 53 (1972). As stated in Curtis v. Puget Sound Bridge & Dredging Co., 133 Wash. 323, 327-28, 233 P. 936 (1925), which is quoted in length in Senske:

[A]lthough it is true that the respondents drew their complaint on the theory that Case was the one who, as a representative...