Turner v. Wash. State Dep't of Soc. & Health Servs.

• Citation: 493 P.3d 117
• Decision Date: 12 August 2021
• Docket Number: No. 99243-6,99243-6
• Parties: Kathy Arleen TURNER, individually and as the Personal Representative of the Estate of Kent Allen Turner, Deceased, Appellant, v. WASHINGTON STATE DEPARTMENT OF SOCIAL & HEALTH SERVICES; Lewis-Mason-Thurston Area Agency on Aging; Res-Care Washington, Inc., a Delaware corporation; and Life Therapeutic Works, LLC, a Washington Limited Liability Corporation, Respondents.
• Court: United States State Supreme Court of Washington

493 P.3d 117

Kathy Arleen TURNER, individually and as the Personal Representative of the Estate of Kent Allen Turner, Deceased, Appellant,

v.WASHINGTON STATE DEPARTMENT OF SOCIAL & HEALTH SERVICES; Lewis-Mason-Thurston Area Agency on Aging; Res-Care Washington, Inc., a Delaware corporation; and Life Therapeutic Works, LLC, a Washington Limited Liability Corporation, Respondents.

No. 99243-6

Supreme Court of Washington.

Argued March 11, 2021

Filed: August 12, 2021

Bradley Jerome Moore, A. Melanie Nguyen, Stritmatter Kessler Whelan Koehler Moore, 3600 15th Ave., W. Ste. 300, Seattle, WA, 98119-1330, Brian F. Ladenburg, B.F. Ladenburg, Inc., 821 2nd Ave., Ste. 2100, Seattle, WA, 98104-1516, Philip Albert Talmadge, Talmadge/Fitzpatrick, 2775 Harbor Ave., Sw, Third Floor Ste. C, Seattle, WA, 98126-2138, Gary Manca, Talmadge/Fitzpatrick, 2775 Harbor Ave., Sw, Third Floor, Suite C, Seattle, WA, 98126, for Appellant(s).

Eron Zachary Cannon, Jennifer M. Smitrovich, Fain Anderson Vanderhoef, 701 5th Ave., Ste. 4750, Seattle, WA, 98104-7089, Jean Magladry, Law Office of Jean Magladry PLLC, 536 Holland Hills Rd. #4, Basalt, CO, 81621, Tiersa Justice, Law Office of Tiersa Justice PLLC, 1408 140th Pl. Ne Ste. 150, Bellevue, WA, 98007-3964, Dianna Caley, Dianna Caley PLLC, 5400 Carillon Pt., Kirkland, WA, 98033-7357, Joseph Michael Diaz, Attorney General of Washington, Po Box 2317, Tacoma, WA, 98401-2317, Sara Avet Cassidey, Washington Attorney General's Office, 7141 Cleanwater Dr. Sw, Po Box 40126, Olympia, WA, 98504-0126, Mark L.B. Wheeler Jr., John A. KeslerIII, Frederick Dee Gentry, Bean, Gentry, Wheeler & Peternell, PLLC, 910 Lakeridge Way Sw, Olympia, WA, 98502-6036, Christopher Joseph Kerley Evans, Craven & Lackie, PS, 818 W. Riverside Ave., Ste. 250, Spokane, WA, 99201-0994, for Respondent(s).

Janell Marie Middleton, Attorney at Law, Po Box 40124, John Paul Desjardien, Washington State AGO, 7141 Cleanwater Dr. Sw, Olympia, WA, 98504-0124, for Amicus Curiae on behalf of Wa. State Health Care Authority.

Valerie Davis McOmie, Attorney at Law, 4549 Nw Aspen St., Camas, WA, 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Ave., Ste. 1300, Spokane, WA, 99201-0305, for Amicus Curiae on behalf of Wa. State Association for Justice Foundation

Eleanor Hamburger, Sirianni Youtz Spoonemore Hamburger PLLC, 3101 Western Avenue, Suite 350, Seattle, WA, 98121, Mark Whitburn, Sean E. Pevsner, Whitburn & Pevsner, PLLC, 2000 E. Lamar Blvd., Suite 600, Arlington, TX, 76006, for Amicus Curiae on behalf of National Council On Independent Living.

JOHNSON, J.

¶ 1 This case primarily involves the existence and scope of any duty owed by the Washington State Department of Social and Health Services (DSHS) and area agencies on aging (AAAs) to individuals who qualify for and receive state long-term care services. Kent Turner suffered from multiple sclerosis (MS), which caused loss of his motor skills. When his wife, Kathy Turner,¹ could not, due to her health issues, provide necessary in-home assistance, Kent moved into a nursing home and then into an apartment, where he died in a fire. Kent's estate, through Kathy Turner, sued DSHS and Lewis-Mason-Thurston Area Agency on Aging (LMTAAA)—the AAA with case management responsibilities for Kent's care—for negligence and for abuse or neglect. DSHS and LMTAAA moved for summary judgment, which the trial court granted. The trial court ruled that no special relationship was formed and only an ordinary duty of care was owed. The trial court further held that no breach occurred and causation was lacking. We affirm the trial court's summary judgment dismissal of the claims against DSHS and LMTAAA.²

FACTS AND PROCEDURAL HISTORY

¶ 2 In this case, it is helpful to provide some background on how long-term care is administered and the statutory role of both DSHS and LMTAAA. Long-term care services are paid in part through Medicaid and are administered by DSHS.³ Ch. 74.39 RCW; ch. 74.39A RCW. The statutorily enumerated purposes of long-term care services include safety and cost, but they also include promoting "individual choice, dignity, and the highest practicable level of independence." RCW 74.39A.007(1). In an effort to align promoting choice and independence with limiting the State's cost, long-term care services offered in community settings were expanded as an alternative option to services received in institutional settings. RCW 74.39A.030. The expansion not only allowed the State to save the costs associated with care received in a nursing facility but also advanced the dignity and choices of the clients who could receive care in independent living situations in the community.

¶ 3 DSHS's responsibilities in administering long-term care services are established by statute and regulation. Summarizing this process, first, a client must apply for long-term care services by requesting an assessment and submitting a Medicaid application. WAC 388-106-0025. DSHS is then responsible for conducting an assessment, advising a client of the appropriate level of care, and establishing a plan of care based on the assessment in order to facilitate informed choices by individuals who qualify for long-term care services. RCW 74.42.058(1) ; RCW 74.39A.040. These assessments are called the Comprehensive Assessment Reporting Evaluation (CARE assessment), which determine eligibility for long-term care services by evaluating an individual's functional limitations and ability to perform activities of daily living. WAC 388-106-0045 to - 0140.⁴ The assessment decides the level of care the individual is eligible to receive supported by Medicaid, and the individual must consent to the plan of care developed by DSHS. RCW 74.39A.040(3) ; WAC 388-106-0045(3). Given the long-term care services program's promotion of choice and independence, those receiving long-term care are provided with considerable control over their care. An individual has the right to "turn down services[ ] and not accept case management services," to "make choices about services you want or don't want," to "[n]ot be forced to answer questions or do something you don't want to," and to "[t]ake part in and have your wishes included in planning your care." WAC 388-106-1300(4), (5), (9), (13).

¶ 4 Once a person qualifies for and is receiving care, DSHS provides individual case management services for those receiving care in a nursing facility. RCW 74.42.058. DSHS also contracts with AAAs to provide case management services for those receiving long-term care services in the community. RCW 74.39A.090(2). DSHS must monitor the quality of AAAs, and it is permitted to step in and temporarily provide case management responsibilities if the AAA is not performing its contractual duties. RCW 74.39A.090(3) - (4). AAAs must also develop a care plan for clients based on DSHS's initial care plan, and it must monitor the implementation of the care plan to "verify that it adequately meets the needs of the consumer through activities such as home visits, telephone contacts, and responses to information received by the area agency on aging indicating that a consumer may be experiencing problems relating to his or her home care." RCW 74.39A.095(1)(a), (b). At the time of Kent's death, DSHS could terminate a contract with an individual provider if they threatened the safety or health of a client. See former RCW 74.39A.095(7) (2014). DSHS is also authorized to completely terminate a client's long-term services. WAC 388-106-0047(2)-(3).

¶ 5 With that backdrop, this case arises out of Kent's tragic death from a fire in his apartment. Kent was a military veteran who transitioned into work as a police officer and eventually as a correctional facility officer. In 2007, Kent was diagnosed with MS. Three years later, Kent was forced into early disability retirement at the age of 48 because his MS progressed to the point where he used a wheelchair and needed assistance with his mobility limitations.

¶ 6 Kathy became Kent's caregiver once he retired, and they lived in an apartment in Olympia. She had to help Kent with many activities of daily living, including bathing, dressing, getting in and out of his electric wheelchair, and using the restroom. Kathy was employed, and while she worked, Kent was able to function in his wheelchair without assistance.

¶ 7 In July 2013, Kathy was diagnosed with squamous cell carcinoma

, which required surgery and chemotherapy treatment. Because of her cancer treatment, Kathy knew that she could not continue to provide the needed assistance. Kathy looked into getting in-home care for Kent, but the family was unable to afford it. An application for DSHS assistance was submitted.

¶ 8 On July 31, 2013, DSHS performed an initial CARE assessment to determine Kent's eligibility for long-term care services and to establish a plan of care. The assessment found that Kent's general functional limitations were "[g]eneral weakness, [p]oor hand/eye coordination, [w]eak grip, [l]imited fine motor control." Clerk's Papers (CP) at 830. Based on his limitations, the assessment found that Kent needed assistance with transferring to and from his wheelchair, going to the bathroom, getting dressed, bathing, and doing chores. Once in his wheelchair, Kent was able to independently operate his wheelchair both inside and outside the apartment. The assessment concluded that Kent was eligible for DSHS assistance, and it noted that the planned and recommended living situation was to receive care in a nursing facility. It also noted that Kent's long-term goal was to move back home once Kathy recovered. A service summary for the assessment included a paragraph stating that 24-hour care was available in a residential setting only and that Kent's participation in the long-term care services program was voluntary.⁵ Kent signed a service summary with the same language each time an assessment was done.

¶ 9 On August 5, 2013, Kent moved into Puget Sound Healthcare Center (PSHC)....