Wynn v. Earin
| Decision Date | 22 December 2005 |
| Docket Number | No. 22811-8-III.,22811-8-III. |
| Citation | 125 P.3d 236,131 Wn. App. 28 |
| Court | Washington Supreme Court |
| Parties | Pardner WYNN, Appellant, v. Jolene EARIN and John Doe Earin, as Husband and Wife and Their Marital Community, Respondents. |
Mary E. Schultz, Attorney at Law, Spokane, WA, for Appellant.
James B. King, Christopher J. Kerley, Attorneys at Law, Spokane, WA, for Respondents.
¶ 1 Washington's Health Care Information Act prohibits disclosure of health care information without specific procedural safeguards, which include the consent of the patient. Chapter 70.02 RCW. But an expert witness has common law immunity for disclosing health care information during a trial, so long as the information was obtained in anticipation of the litigation. Here, a former patient sued his marriage guidance counselor for violating the Health Care Information Act by disclosing information in his child custody proceedings. The court concluded that the testimony was protected by witness immunity. We disagree and reverse in part.
¶ 2 In September 1997, Pardner Wynn consulted certified mental health professional Jolene Earin for help with his marriage. She assured him of confidentiality. And Mr. Wynn divulged personal information. Ms. Earin took notes and kept records. Mr. Wynn's wife, Cynthia, also started counseling with Ms. Earin. But by May of 1998, Mr. Wynn viewed Ms. Earin as sympathetic to his wife and antagonistic to him. So he stopped seeing her. Ms. Earin continued to counsel Cynthia. The Wynns eventually became embroiled in a bitter dissolution and custody battle. The court appointed a guardian ad litem for the children.
¶ 3 Mr. Wynn suggested that the guardian ad litem talk to Ms. Earin and gave a signed, written release to the guardian to obtain his counseling records. The guardian ad litem telephoned Ms. Earin. And Ms. Earin, despite having no written release in hand, freely divulged Mr. Wynn's personal information. Ms. Earin discussed Mr. Wynn's therapy sessions without notes, based on her recollections from three years before. Mr. Wynn alleged that Ms. Earin violated multiple provisions of the Health Care Information Act as well as the prevailing standard of care for mental health counselors (malpractice).
¶ 4 The guardian ad litem included Ms. Earin's information in her report to the court. Mr. Wynn read the report. He thought Ms. Earin's information was inaccurate, incomplete, and biased. He served Ms. Earin with a subpoena duces tecum to appear for deposition in 24 days and to bring records of all counseling with him and his wife, both joint and individual. Ms. Earin responded with a sworn declaration that the records were not accessible. At that time, the records were in Ms. Earin's basement. She transferred Mr. Wynn's records from her basement to her car, then left the unlocked car in her driveway. The records were then allegedly stolen and were never produced.
¶ 5 Ms. Earin testified on behalf of Cynthia Wynn at the custody hearing. She again disclosed information about Mr. Wynn. It is not clear from the record whether she was subpoenaed. But she did not notify Mr. Wynn or his counsel of the third party disclosure request. Mr. Wynn alleged that, as a witness, Ms. Earin's answers exceeded the scope of the questions.
¶ 6 Mr. Wynn sued for emotional distress caused both by Ms. Earin's alleged violations of the Health Care Information Act and by her alleged malpractice negligence. He alleged that Ms. Earin's acts constituted a "continuum" of misconduct that proximately caused his damages. He sued for actual damages and attorney fees under the Health Care Information Act, RCW 70.02.170, as well as traditional damages for professional negligence.
¶ 7 Dismissed Claims. The court granted Ms. Earin's pretrial motion for blanket immunity from any claims related to the custody proceedings. The court also dismissed Mr. Wynn's claims for Ms. Earin's filing a false declaration and failing to produce Mr. Wynn's records in response to his subpoena. The court ruled that a subpoena violation is governed by the court rules,1 and is not a written request for records under the Act.2 The court allowed Mr. Wynn to amend his complaint to allege that the subpoena response violated a different provision of the Health Care Information Act. The Act precludes third parties from obtaining records without compulsory process to the provider and notice to the patient. RCW 70.02.060. Before the case went to the jury, however, the court changed its mind and dismissed these claims altogether.
¶ 8 Dismissed Juror. After the jury was sworn, a juror asked to be excused. She said her belief in the importance of professional confidentiality was so strong that it was unfair to Ms. Earin for her to remain on the jury. To satisfy the court, the juror listened to the testimony of the first witness, Mr. Wynn's expert on the professional confidentiality standard of care for mental health care providers. The juror then renewed her request. The court held a conference in chambers and then made a record of excusing the juror and seating an alternate. Mr. Wynn objects to the removal of this juror.
¶ 9 Jury Instructions. When the court drafted jury instructions, it recognized that the overlapping statutory and common law claims might confuse the jury.3 The judge was of the opinion that Mr. Wynn's case against Ms. Earin boiled down to a negligence action in which the statutory violations were evidence of the breach of duty element: "Part of the standard of care is whether or not the Defendant complied with various statutes that govern her profession." Report of Proceedings (RP) at 1142. The court concluded that the statutory claim was, then, "subsumed into the negligence claim," RP at 1131, and that separating the two sources of duty unnecessarily complicated things. RP at 1142.
¶ 10 The judge also consolidated the statutory and negligence claims on the questions of proximate cause and damages. Mr. Wynn alleges a series of bad acts and claimed those acts caused his emotional distress damages. The jury would, accordingly, determine whether each act breached a duty and contributed to the harm, and then assess damages for the entire injury.
¶ 11 Key Instructions and Special Verdicts. The court directed a verdict that Ms. Earin violated the Health Care Information Act by talking to the guardian ad litem on the phone without having Mr. Wynn's written release in front of her. The jury was asked whether this was also negligence. The jury found it was also negligence but that it was not a proximate cause of harm to Mr. Wynn.
¶ 12 The court directed a second verdict that leaving health records in an unlocked car violated the Health Care Information Act and that this was also negligence as a matter of law. The jury was asked if this was a proximate cause of Mr. Wynn's damages and answered that it was.
¶ 13 Damages. The jury awarded $2,790 for economic damages, the amount of Mr. Wynn's counseling expenses. The jury awarded zero noneconomic damages. Mr. Wynn moved for a judgment notwithstanding the verdict, asserting that these verdicts were inconsistent. The court denied the motion.
¶ 14 Fee Award. Mr. Wynn requested $119,432 in attorney fees plus $11,006 in costs, pursuant to the health care statute's remedies provision, RCW 70.02.170, based on the two directed verdicts that the statute was violated. The judge segregated the work she thought had been necessary to establish the statutory violations, estimated that this was 10 percent of the total effort, and awarded $11,900 in fees and $1,100 in costs.
¶ 15 Mr. Wynn challenges the court's grant of witness immunity and the court's interpretation of chapter 70.02 RCW. He contends the loss of these claims undermined his continuum theory of liability. He argues that Ms. Earin's acts should not be viewed singly as separate potential causes of his harm. Rather each incident was part of an ongoing and continuing course of conduct throughout his custody litigation.
¶ 16 Mr. Wynn assigns error to the dismissal of his claims based both on witness immunity and the court's statutory interpretation. He challenges the dismissal of the juror and the sufficiency of the jury instructions. He contends the court denied him statutory damages by not making its own damages determination in addition to the jury award. He also assigns error to the denial of judgment notwithstanding the verdict on noneconomic damages and the denial of full attorney fees and costs.
¶ 17 A key component of Mr. Wynn's theory of the case (ongoing violations of the Health Care Information Act and malpractice) was the claim that Ms. Earin violated the statute and the standard of care by contacting the lawyers representing his wife and offering to testify against him in the custody proceedings. He claimed that Ms. Earin testified without a subpoena, contrary to the statute. The record includes a letter to Ms. Earin from the lawyers stating that a subpoena is enclosed. There is no suggestion, however, that Ms. Earin notified Mr. Wynn as the statute requires to enable him to seek a protection order. RCW 70.02.060(1). Mr. Wynn also claimed that Ms. Earin violated the statute by testifying beyond the scope of the questions. And Ms. Earin's own expert testified that this violated the professional confidentiality standard which requires a counselor, if subpoenaed, to respond strictly to the questions presented and to volunteer nothing.
¶ 18 The court dismissed these claims on Ms. Earin's motion based on blanket witness immunity. Mr. Wynn contends that the loss of these claims prejudiced him by gutting his "continuum theory" of the case — that is, that the conduct here was ongoing and involved multiple violations of the Health Care Information Act and ongoing negligence.
¶ 19 Mr. Wynn argues that witness immunity is broad but not absolute. It generally protects witnesses...
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