# Estate of Torres v. Kennewick School District No 17 > District Court, E.D. Washington · June 2, 2023 URL: https://www.frixlaw.com/law-library/cases/10698293 ## Case - **Court:** District Court, E.D. Washington - **Decided:** June 2, 2023 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10698293 ## Opinion text 1 Jun 02, 2023 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ESTATE OF JONNY TORRES, by and No. 4:19-CV-05038-MKD through his Personal Representative 8 Manuel Banda; JAMIE VALENCIA, ORDER GRANTING parent of Jonny Torres; MARIA M. DEFENDANTS CITY OF 9 TORRES, parent of Jonny Torres, KENNEWICK, DAVID DAY, ANTHONY MARSH, MARK COOK, 10 Plaintiffs, AND CHRISTOPHER JOHNSON’S MOTION FOR SUMMARY 11 v. JUDGMENT 12 KENNEWICK SCHOOL DISTRICT ECF No. 374 NO. 17, a quasi-government agency 13 and agents thereof with knowledge and responsibility; TAMARA VASQUEZ, 14 individually and in her capacity as nurse at Highland Middle School; 15 CITY OF KENNEWICK, d/b/a Kennewick Fire Department and City 16 of Kennewick Ambulance and agents thereof with knowledge and 17 responsibility; and DAVID DAY, ANTHONY MARSH, MARK COOK, 18 and CHRISTOPHER JOHNSON, in their capacity as medical responders for 19 City of Kennewick, 20 Defendants. 1 Before the Court is Defendants City of Kennewick (the “City”), David Day, 2 Anthony Marsh, Mark Cook, and Christophers Johnson’s (collectively the “City 3 Defendants”) Motion for Summary Judgment. ECF No. 374. On May 11, 2023, 4 the Court held a hearing on the motion. ECF No. 406. Marshall Casey and 5 Marcus Sweetser appeared on behalf of Plaintiffs the Estate of Jonny Torres, Jamie 6 Valencia, and Maria Torres (collectively “the Estate”). Joel Comfort appeared on 7 behalf of the City Defendants. Rachel Platin appeared on behalf of Defendants 8 Kennewick School District No. 17 (“KSD”) and Tamara Vasquez (collectively the 9 “KSD Defendants”). 10 The Estate pursues claims arising out of the acts and omissions of the City’s 11 emergency medical responders in rendering medical aid to decedent Jonny Torres 12 (hereinafter “Torres”). ECF No. 117 at 28-29 ¶¶ 8.1-8.5. The City Defendants 13 move for summary judgment, arguing that (1) the claims against them expired 14 under the applicable statute of limitations prior to the claims being filed and (2) 15 they are entitled to statutory immunity. ECF No. 374 at 2. 16 For the reasons stated herein, the Court denies the City Defendant’s Motion 17 for Summary Judgment on the statute of limitations grounds and grants the motion 18 on statutory immunity grounds. 19 20 1 BACKGROUND 2 The following facts are not genuinely in dispute.1 On September 7, 2017, 3 Torres suffered a severe asthma attack. ECF No. 375 at 2 ¶ 1; ECF No. 388 at 2 ¶ 4 1. At approximately 4:36 p.m., his family called 911. ECF No. 388 at 2 ¶1. 5 Defendants Day, Marsh, Cook, and Johnson, all emergency medical responders, 6 arrived at 4:45 p.m. ECF No. 375 at 2 ¶¶ 2-3; ECF No. 388 at 2 ¶¶ 2-3; ECF No. 7 376-2 at 7. Day, and possibly Johnson, entered the Torres home. ECF No. 388 at 8 2-3 ¶ 4. Torres was sitting rigidly and struggling to breath, using an albuterol 9 treatment, his limbs were pale, and he was only able to speak at a whisper, saying 10 “help me.” ECF No. 375 at 2-3 ¶ 4; ECF No. 388 at 2-3 ¶ 4. 11 12 13 1 The City Defendants filed along with their Motion for Summary Judgment a 14 Statement of Material Facts Not in Dispute. ECF No. 375. The Estate filed a 15 Statement of Disputed Material Facts and Submission of Undisputed Facts 16 Precluding Summary Judgment. ECF No. 388. The City Defendants did not file a 17 Reply Statement of Material Facts Not in Dispute as set forth in LCivR 18 56(c)(1)(C). Pursuant to LCivR 56(e), the Court will consider undisputed facts not 19 controverted pursuant to the procedures in LCivR56(c). See Fed. R. Civ. P. 20 56(e)(2). 1 The medical responders, with the help of Torres’s father, moved him to a cot 2 placed at the front door, and then to the ambulance. ECF No. 384-1; ECF No. 388 3 at 2-3 ¶ 4. While still in the home, Day determined that the medical responders 4 would administer epinephrine intravenously. ECF No. 388 at 2-3 ¶ 4; ECF No. 5 389-6 at 55:12-22. At 4:50 p.m., the medical responders departed for Trios 6 Hospital in Kennewick, Washington. ECF No. 376-2 at 7; ECF No. 375 at 2-3 ¶ 4; 7 ECF No. 388 at 2-3 ¶ 4. 8 While in the ambulance, the paramedics took Torres’s vitals. ECF No. 388 9 at 3-4 ¶ 6. Day was concerned about his heart rate, which was low, and slow 10 breathing and low oxygen levels. ECF No. 388 at 3-4 ¶ 6; ECF No. 389-6 at 43:6- 11 16. The paramedics started to hook up a DuoNeb and Marsh began an IV into 12 Torres’s right hand. ECF No. 389-6 at 52:14-24. The paramedics started to push 13 epinephrine through the IV as the ambulance began to move. ECF No. 389-6 at 14 53:1-8. Marsh administered 0.3 mg of epinephrine over a 30-second window. 15 ECF No. 388 at 3-4 ¶ 6; ECF No. 389-7 at 28:4-7. Torres began vomiting and 16 seizing and lost consciousness. ECF No. 384-4 at 3. 17 At 4:58 p.m., the ambulance arrived at the hospital. ECF No. 388 at 4 ¶ 6; 18 ECF No. 376-2 at 7. Torres spent 18 days on life support and died on 19 September 25, 2017. ECF No. 375 at 3 ¶ 7; ECF No. 388 at 4 ¶ 7. 20 1 On or about December 1, 2017, the City produced to the Estate’s counsel 2 copies of an 8-page report of care rendered in the ambulance. ECF No. 375 at 3 ¶ 3 8; ECF No. 388 at 5 ¶ 8; ECF No. 376-2 at 4-11; ECF No. 384-4 at 2-8. The 4 records are eight pages of documentation containing a narrative of the event by 5 Day, Torres’s vitals, recorded observations, medications given, and heart monitor 6 readings. ECF No. 376-2 at 4-11. 7 On March 13, 2019, the Estate filed a Complaint against KSD and 8 Nurse Vazquez, alleging that their negligence resulted in Torres’s death. ECF No. 9 1 at 16-25.2 Initial Disclosures from the Estate’s counsel, dated as received by 10 KSD’s counsel on June 17, 2019, indicate that the ambulance records were in the 11 Estate’s possession. ECF No. 375 at 3 ¶ 10; ECF No. 388 at 5 ¶ 10; ECF No. 376- 12 1. On February 11, 2021, KSD and Nurse Vasquez moved to amend their Answer 13 to allege that the City Defendants caused Torres’s death. ECF No. 90. The Estate 14 15 16 2 The background presented in this order is that which is relevant to the City 17 Defendants’ Motion for Summary Judgment. The Estate separately pursues claims 18 against KSD and Nurse Vasquez, a nurse at one of KSD’s schools, for wrongful 19 death and survival, school negligence and gross negligence, and under the ADA 20 and Section 1983. ECF No. 117 at 20-28. 1 opposed, but sought leave to amend its complaint to add the City Defendants in the 2 event that the Court permit an amended answer. ECF No. 92 at 14. 3 On May 18, 2021, Judge Peterson granted leave to file an amended answer 4 and amended complaint. ECF No. 115. On May 19, 2021, the KSD Defendants 5 filed an Amended Answer to the First Amended Complaint, which alleged that 6 “[t]he damages and injuries claimed by Plaintiffs were caused by the actions and/or 7 inactions of an at-fault non-party – the City of Kennewick” and that “[t]he actions 8 and inactions of the City of Kennewick were the sole proximate cause of the 9 damages and injuries claimed by Plaintiffs herein and/or an 10 intervening/superseding act.” ECF No. 116 at 24 ¶¶ F-G. On May 24, 2021, the 11 Estate filed a Second Amended Complaint that included claims of medical 12 negligence against the City Defendants. ECF No. 117 at 28-29 ¶¶ 8.1-8.5. 13 On June 28, 2021, the City Defendants provided an additional supplemental 14 narrative authored by Day sometime after Torres’s death to preserve Day’s 15 recollection of the event. ECF No. 384-1 at 2; ECF No. 395-1 at 14:3-17. 16 Now, the City Defendants move for summary judgment on all claims against 17 them. ECF No. 374. 18 LEGAL STANDARD 19 A district court must grant summary judgment “if the movant shows that 20 there is no genuine dispute as to any material fact and the movant is entitled to 1 judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 2 477 U.S. 317, 322-23 (1986); Barnes v. Chase Home Fin., LLC, 934 F.3d 901, 906 3 (9th Cir. 2019). “A fact is ‘material’ only if it might affect the outcome of the 4 case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the 5 issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, 6 LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (quoting Anderson v. Liberty Lobby, 7 Inc., 477 U.S. 242, 248 (1986)). 8 The moving party bears the initial burden of informing the district court of 9 the basis for its motion and identifying the portions of the record and the evidence 10 that demonstrate the absence of a genuine dispute of material fact. Celotex, 477 11 U.S. at 323 (quoting former Fed. R. Civ. P. 56(c)). After the moving party has 12 satisfied its burden, to survive summary judgment, the non-moving party must 13 demonstrate with evidence on the record “specific facts” showing that there is a 14 genuine dispute of material fact for trial. Celotex, 477 U.S. at 324. “The mere 15 existence of a scintilla of evidence in support of the plaintiff's position will be 16 insufficient[.]” Anderson, 477 U.S. at 252. 17 The court “must view the evidence in the light most favorable to the 18 nonmoving party and draw all reasonable inference in the nonmoving party’s 19 favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Credibility 20 determinations, the weighing of the evidence, and the drawing of legitimate 1 inferences from the facts are jury functions, not those of a judge . . . .” Anderson, 2 477 U.S. at 255. 3 DISCUSSION 4 The City Defendants argue that the Estate’s claims are time barred by RCW 5 4.16.350, and that they are immune from liability per RCW 18.71.210. ECF No. 6 374 at 2. 7 I. RCW 4.16.3503 8 RCW 4.16.350 provides that 9 Any civil action for damages for injury occurring as a result of health care . . . shall be commenced within three 10 years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or 11 his or her representative discovered or reasonably should have discovered that the injury or condition was caused by 12 said act or omission, whichever period expires later. 13 “The statute of limitations is an affirmative defense on which the defendant bears 14 the burden of proof.” Young Soo Kim v. Choong-Hyun Lee, 300 P.3d 431, 433 15 (Wash. Ct. App. 2013). “Summary dismissal under a statute of limitations should 16 be granted solely when the pleadings, depositions, interrogatories, admissions and 17 18 3 In diversity jurisdiction cases, state statutes of limitations apply. Albano v. Shea 19 Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir. 2011); Alonzo v. ACF Property 20 Mgmt., Inc., 643 F.2d 578, 580 (9th Cir. 1981). 1 affidavits in the record demonstrate that there is no genuine issue of material fact 2 as to when the statutory period commenced.” Webb v. Neuroeduc. Inc., P.C., 88 3 P.3d 417, 419 (Wash. Ct. App. 2004). “In order to defeat a motion for summary 4 judgment based on the statute of limitations, malpractice claimants must provide 5 some evidence that the defendant’s negligent act occurred within the limitations 6 period.” Williams v. Gillies, 495 P.3d 862, 864 (Wash. Ct. App. 2021) (citing 7 Young Soo Kim, 495 P.3d at 864). 8 It is undisputed that any care attributable to the City Defendants occurred on 9 September 7, 2017. ECF No. 375 at 2-3 ¶ 2-6; ECF No. 388 at 2-3 ¶ 2-6. The 10 Estate did not commence its action against the City Defendants until May 24, 11 2021. ECF No. 117. The Estate does not argue that its action against the City 12 Defendants fell within of the three-year limit, but argues that RCW 4.16.350’s 13 discovery rule applies. ECF No. 387 at 3-16. 14 A. Discovery Rule 15 The discovery rule extends the deadline to file medical malpractice actions 16 to within one year of when the plaintiff “discovered or reasonably should have 17 discovered” that the injury was caused by the act or omission. Adcox v. Children’s 18 Orthopedic Hosp. & Medical Ctr., 864 P.2d 921, 933 (Wash. 1993). “The 19 question of when the elements of a cause of action should have been discovered to 20 begin the running of the statute of limitations is a question of fact.” Webb, 88 P.3d 1 at 419-20. “If the plaintiff has that information, ‘the statute will run even if she is 2 advised by a physician or an attorney that she has no cause of action.’” 3 Barrowman v. Wright Med. Tech. Inc., No. C15-0717JLR, 2017 WL 4882654, at 4 *3 (W.D. Wash. Oct. 30, 2017) (quoting Gevaart v. Metco Cosntr. Inc., 760 P.2d 5 348, 350 (Wash. 1988)) (hereinafter Barrowman II).4 6 The Court first addresses the City Defendants’ argument that the evidence 7 leaves no genuine dispute of fact as to whether the Estate should have discovered 8 its claim against them at least as early as June 2019. ECF No. 374 at 8. The Court 9 then considers the Estate’s argument that another facially logical explanation for its 10 damages raises a jury question over whether it should have discovered a claim 11 against the City Defendants.5 ECF No. 387 at 6-7. 12 13 4 Barrowman II is an order denying reconsideration of an earlier order, found at 14 Barrowman v. Wright Med. Tech. Inc., No. C15-0717JLR, 2017 WL 4161688 15 (W.D. Wash. Sept. 19, 2017) (hereinafter Barrowman I). 16 5 The Estate also argues that intentional concealment requires the statute of 17 limitations be tolled. ECF No. 387 at 8-15. The statute of limitations is “tolled 18 upon proof of intentional concealment until the patient or the patient’s 19 representative has actual knowledge of the concealment.” Cox v. Oasis Physical 20 Therapy, PLLC, 222 P.3d 119, 124 (Wash. Ct. App. 2009). The Estate points to no 1 i. Evidence of Discovery 2 To determine when the Estate should have “reasonably suspect[ed] that a 3 specific wrongful act has occurred[,]” it is necessary to first define the factual basis 4 of the Estate’s claim against the City. Barrowman II, 2017 WL 4882654, at *3. 5 The City Defendants characterize the Estate’s claim against them as based upon 6 “the administration of IV epinephrine to Jonny Torres[.]” ECF No. 374 at 10. The 7 City Defendants argue that it is undisputed that the Estate knew the medical 8 responders used IV epinephrine when treating Torres since at least June 17, 2019, 9 therefore the time to file suit expired June 17, 2020. ECF No. 374 at 8. The City 10 Defendants suggest that knowledge of the mere fact that IV epinephrine was used 11 is notice of a potential claim against it. 12 Indeed, it was these ambulance records that sparked KSD’s efforts to amend 13 14 proof of intentional concealment and the argument more directly alleges that the 15 City Defendants failed to provide accurate and complete information because 16 Day’s supplemental narrative, discussed in more detail below, was not produced 17 until a later date. ECF No. 387 at 10-11. The cases the Estate relies upon, like 18 Winbun v. Moore, do not explore the doctrine of intentional concealment. 18 P.3d 19 576, 582 (Wash. 2001). The Court finds no intentional concealment on the part of 20 the City Defendants in the evidence presented. 1 its answer to assert fault against the City. ECF No. 91 at 3. KSD presented the 2 records to Dr. David Cornfield, a pediatric intensivist. ECF No. 91 at 3 ¶ 3. On 3 May 14, 2020, Dr. Cornfield told KSD his opinion that the medical responders 4 were negligent. ECF No. 91 at 3 ¶ 3. However, KSD did not act upon 5 Dr. Cornfield’s opinion, and instead hired Dr. Steven Simons, a pulmonologist. 6 ECF No. 91 at 4 ¶ 5. On June 18, 2020, Dr. Simons told KSD his opinion that the 7 medical responders were not negligent. ECF No. 91 at 4 ¶ 6. KSD abandoned the 8 theory and told opposing counsel it would not be pursuing a third-party fault 9 defense. ECF No. 90 at 3; ECF No. 92-2 at 36:10-14. 10 On January 28, 2021, the Estate disclosed experts Dr. Roger Katz, a 11 pediatric allergist and immunologist, and Dr. William Smock, an emergency 12 medicine expert. ECF No. 91 at 4-5 ¶ 7. Contrary to Dr. Cornfield’s opinion, the 13 Estate’s experts considered the ambulance records but did not conclude that the 14 medical responders were negligent. ECF No. 93-3 at 15; ECF No. 376-3 at 8, 14. 15 KSD then disclosed their own emergency medicine expert, Dr. Fred Abrahamian. 16 ECF No. 91 at 5 ¶ 8. On February 2, 2021, Dr. Abrahamian told KSD his opinion 17 that the medical responders were negligent. ECF No. 91 at 5 at ¶ 9. KSD returned 18 to Dr. Cornfield and asked that he prepare an expert report regarding the medical 19 responders, which he did, dated February 10, 2021. ECF No. 91 at 6 ¶ 10; ECF 20 No. 91-4. 1 Dr. Cornfield’s February 10, 2021 report explains that “[s]uch a treatment, 2 both the dose and rate of administration is both highly unusual and nonstandard in 3 the presence of a perfusing heart rate and rhythm.” ECF No. 91-4 at 3. This 4 revelation prompted KSD to seek leave to amend its answer to assert as a defense 5 the fault of the medical responders. ECF No. 90. On May 18, 2021, Judge 6 Peterson granted leave to amend.6 ECF No. 115. 7 In short, KSD, through experts, reached the conclusion that the medical 8 responders were negligent for using IV epinephrine with only the ambulance 9 reports. That the Estate’s experts had not come to the same conclusion does not 10 prevent the discovery rule from running, because “[t]he key consideration under 11 the discovery rule is the factual, as opposed to the legal, basis of the cause of 12 action.” Adcox, 864 P.2d at 933; see also Barrowman II, 2017 WL 4882654, at *3. 13 However, the opposite is also true. “[A] mere inquiry by the plaintiff or her 14 attorney into a possible cause of action is not enough to establish, as a matter of 15 law, that the plaintiff discovered all the essential elements of that action.” Olson v. 16 17 6 Judge Peterson further granted leave for the Estate to amend its complaint to add 18 the City Defendants. ECF No. 115 at 21. Judge Peterson reserved consideration of 19 “any subsequent motion practice related to the statute of limitations at the 20 appropriate time.” ECF No. 115 at 21. 1 Silverling, 758 P.2d 991, 995 (Wash. Ct. App. 1988). An expert’s opinion that 2 there is no cause of action will not prevent the discovery rule from triggering, and, 3 counterfactually, another party’s expert’s opinion that a cause of action exists does 4 not necessarily mean that the rule is triggered. 5 The factual basis of the Estate’s claim against does not begin and end with 6 the fact that the medical responders used IV epinephrine. “To discover a breach in 7 a medical malpractice action . . . the plaintiff need only have had, or should have 8 had, information that the provider was possibly negligent.” McFadden v. Sound 9 Inpatient Physicians, PLLC, No. 72708-7-I, 2015 WL 6873463, at *2 (Wash. Ct. 10 App. Nov. 9, 2015) (quotations omitted) (citing Zaleck v. Everett Clinic, 802 P.2d 11 826, 828 (Wash. Ct. App. 1991)). 12 The circumstances surrounding the medical responders’ use of IV 13 epinephrine is relevant factual information for the Estate’s claim. Later-discovered 14 information may have been needed to put the Estate on reasonable notice of a 15 possible claim against the City. The Estate highlights Day’s supplemental 16 narrative that it did not receive until June 28, 2021. ECF No. 384-1 at 2; ECF No. 17 387 at 9; ECF No. 388 at 8 ¶ 25; ECF No. 395-1 at 14:3-17. The supplemental 18 narrative tends to suggest that Day may have made the decision to administer IV 19 epinephrine based on insufficient information. ECF No. 384-1 at 2. 20 Further, according to depositions of Day, taken September 15, 2021, and 1 Marsh, taken August 25, 2021, the ambulance records are inaccurate.7 Torres’s 2 blood pressure is inaccurately noted in the narrative. ECF No. 389-6 at 41:7-16. 3 His pulse oximetry reading of 60 at 4:54 p.m. is noted as “at room air” but he was 4 actually on oxygen at the time. ECF No. 389-6 at 130:14-17. The report 5 inaccurately indicates that the IV was established, epinephrine pushed, and 6 DuoNeb administered within one second of each other. ECF No. 384-2 at 115:1-9. 7 Observations of Torres’s presentation in the report do not correlate with Marsh’s 8 observations. ECF No. 384-2 at 115:10-17. The time at which the medical 9 responders administered IV epinephrine, compared to when compressions were 10 given, is “very inaccurate” and “very confusing” according to Day. ECF No. 384- 11 3 at 168:13-169:6. In light of these comments, the facts the Estate discovered upon 12 receipt of the ambulance records were likely inaccurate, and the true factual basis 13 14 7 The Estate explains that “[t]he city defendants have also admitted the following 15 parts of their ambulance records are inaccurate” and points to fifteen specific 16 instances of inaccuracy. ECF No. 387 at 10 n.3. However, the Estate does not 17 “support the assertion by . . . citing to particular parts of materials in the record” as 18 required by Fed. R. Civ. P. 56(c). The Estate provides some excerpts of Day and 19 Marsh’s depositions, upon which the Court relies, among other excerpts in the 20 record. 1 of its claim would not have been discovered until much later.8 2 ii. Another Facially Logical Explanation 3 A plaintiff may demonstrate that he was not unreasonable in failing to 4 discover medical negligence where “another ‘facially logical explanation’ for the 5 injury exists.” Webb, 88 P.3d at 420 (quoting Winbun, 18 P.3d at 582). In other 6 words, “[a] plaintiff has no duty to seek out evidence of medical negligence if 7 another ‘facially logical explanation’ for the injury exists.’” Id. This principle, 8 articulated by the Washington Court of Appeals in Lo v. Honda Motor Co., holds 9 that “the day has not yet come when attorneys must automatically suspect medical 10 malpractice to be a proximate cause of every adverse medical outcome.” 869 P.2d 11 12 8 The Estate’s failure to depose Day and Marsh earlier is not, in and of itself, 13 dispositive of their claims. In Winbun, the Washington Supreme Court rejected the 14 notion that “knowledge the plaintiff presumably would have discovered, if she had 15 timely made the necessary inquiry, must be imputed to the plaintiff as a matter of 16 law.” 18 P.3d at 582. Similarly, here, the Court declines to impute facts 17 discovered in the Day and Marsh depositions to the Estate due to their failure to 18 depose Day and Marsh earlier. The relevant inquiry is whether the Estate 19 exhibited due diligence in pursuing its claims, and, as the Winbun court explained, 20 “due diligence [is] a question for the trier of fact.” Id. 1 1114, 1122 (Wash. Ct. App. 1994). 2 The Estate’s diligence in discovering its available causes of action must be 3 examined in light of the fact that it believed KSD’s negligence to be the sole cause 4 of its injuries. ECF No. 387 at 6. The Estate highlights medical opinion testimony 5 supporting its negligence claim against KSD. ECF No. 387 at 7. The Estate 6 argues that its claims against KSD were more apparent than those against the City 7 Defendants, and sufficed as a facially logical explanation for Torres’s death. ECF 8 No. 387 at 8. 9 The City Defendants rely on Barrowman, a Western District of Washington 10 case in which the plaintiffs, pursuing a claim against a medical device 11 manufacturer, sought to amend their complaint to add as a defendant the doctor 12 who installed the medical devices at issue long after the statute of limitations had 13 expired. Barrowman II, 2017 WL 4882654, at *2-3. The medical device 14 manufacturers asserted the doctor’s negligence as an affirmative defense. Id. at 15 *2-4. The plaintiffs moved to amend their complaint to add the doctor as a 16 defendant after the medical device manufacturers disclosed an expert report on the 17 doctor’s negligence. Id. The Barrowman court discussed Lo, but found that 18 amendment would be futile because the expert report disclosed no new facts 19 triggering a discovery period, and that the medical device manufacturers had 20 alleged the doctor’s negligence years prior, giving notice of a potential claim. 1 Barrowman I, 2017 WL 4161688, at *7. The Barrowman court declined to extend 2 Lo to the facts of that case specifically because “Plaintiffs here claim to have 3 diligently explored—and dismissed—medical negligence as a potential cause of 4 action” before the discovery period had expired. Id. 5 The Estate does not similarly claim here. As explained above, the facts 6 available to the Estate before KSD raised an affirmative defense at the City 7 Defendants were marred by an inaccurate report. While the Estate’s experts 8 considered the ambulance report and did not identify potential negligence, the 9 Estate acted diligently upon the KSD Defendants’ assertion of an affirmative 10 defense against the City Defendants. 11 An overarching principle for application of the discovery rule requires 12 consideration of the plaintiff’s due diligence, and as the Washington Supreme 13 Court explained in Winbun, “due diligence [is] a question for the trier of fact.” 18 14 P.3d at 582 (citing Lo, 869 P.2d at 1122). The Winbun court’s finding that “[f]rom 15 the medical records that [the plaintiff] received, it was not readily apparent that 16 [the later-added defendant’s] conduct [caused injury]” is applicable to this case. 17 Id. at 582-83. The ambulance records were scarce and inaccurate, and the Estate 18 was “faced with a ‘facially logical explanation’ for [its] injuries.” Id. at 582. 19 The City Defendants have failed to demonstrate the absence of a genuine 20 dispute of fact as to when the Estate should reasonably have discovered that the 1 City Defendant’s acts or omissions caused the Estate’s injury. Webb, 88 P.3d at 2 419. The Estate has presented sufficient evidence to create a genuine issue of 3 material fact that it filed its claim earlier than the discovery rule’s one year 4 deadline. Williams, 495 P.3d at 864. The mere inclusion of IV epinephrine in the 5 ambulance records does not take the question of reasonable discovery from the 6 jury. Using IV epinephrine is not automatically a tort; it is the context in which it 7 is used that may constitute a tort. A jury may decide that the Estate reasonably 8 should have discovered its claim when it received the ambulance records, when it 9 received Day’s supplemental narrative, or when it deposed Day and Marsh, and 10 may consider KSD’s potential negligence as a sufficient facially logical 11 explanation for Torres’s death, thereby alleviating any duty to investigate the City 12 Defendants’ potential medical negligence.9 13 14 9 The Estate briefly raised at the hearing and in its response that filing a claim prior 15 to discovering sufficient information would run counter to Fed. R. Civ. P. 11. ECF 16 No. 387 at 4; see also Winbun, 18 P.3d at 583. The Estate lodged its claims against 17 the City Defendants on May 24, 2021, before receiving Day’s supplemental 18 narrative or deposing relevant witnesses. The Estate sought to amend its complaint 19 in response to KSD’s efforts to amend its answer, and it did so to “eliminate the 20 empty chair defense, and allow all issues to be resolved on the merits.” ECF No. 1 II. RCW 18.71.210 2 Paramedics in Washington are granted qualified immunity by statute for acts 3 and omissions performed during emergency medical services. Marthaller v. King 4 County Hosp., 973 P.2d 1098, 1101 (Wash. Ct. App. 1999). RCW 18.71.210(1) 5 provides that 6 No act or omission of any . . . paramedic . . . , done or omitted in good faith while rendering emergency medical 7 service under the responsible supervision and control of a licensed physician or an approved medical program 8 director or delegate(s) to a person who has suffered illness or bodily injury shall impose any liability upon: 9 (a) The . . . paramedic . . . ; 10 . . . (g) Any federal, state, county, city, or other local 11 governmental unit or employees of such a governmental unit. 12 13 92 at 7. The inquiry under Fed. R. Civ. P. 11 is separate from that of the discovery 14 rule. The Estate’s allegations against the City Defendants were made to the best of 15 counsel’s knowledge, information, and belief at the time, and were not meritless or 16 presented for improper purpose. Fed. R. Civ. P. 11(b)(1)-(4); see also Townsend v. 17 Holman Consulting Corp., 929 F.3d 1358, 1364 (9th Cir. 1990) (“[I]f a lawyer 18 discovers that his client has a potential cause of action only a short time before the 19 statute of limitations will expire, a more cursory inquiry will be tolerated than 20 when he has ample time to investigate.”). 1 Under the statute, paramedics are immune from liability for simple negligence as 2 long as they act in good faith. Marthaller, 973 P.2d at 1101. 3 The City Defendants argue that they are immune from suit because Day, 4 Marsh, Cook, and Johnson are all paramedics as defined by statute, and the Estate 5 sues the City solely in its capacity as operator of emergency medical services. 6 ECF No. 374 at 11. The Estate does not contest that the City Defendants are 7 within the category of persons anticipated by the statute or that the emergency care 8 rendered to Torres at least categorically falls within the protection of the statute. 9 See ECF No. 387 at 15-20. However, the Estate argues that the City Defendants 10 are not entitled to statutory immunity because they exceeded their “authorized 11 scope of care” and because their acts or omissions while treating Torres constitute 12 gross negligence, which the statute does not protect. ECF No. 387 at 18-19. 13 A. Scope of Care 14 The Estate argues that the care the City Defendants gave Torres was not 15 “under the responsible supervision and control of a licensed physician or an 16 approved medical program director or delegate(s)[,]” which is a prerequisite to 17 statutory immunity. RCW 18.71.210(1). The Estate argues that state regulations 18 give paramedics authorization for their operations, specifically, WAC 246-976- 19 182, which provides as follows: 20 (1) Certified EMS personnel are only authorized to provide patient care: 1 . . . 2 (c) Within the scope of care that is: 3 (i) Included in the approved instructional guidelines/curriculum for the individual's 4 level of certification; or (ii) Included in approved specialized training; 5 and (iii) Included in state approved county MPD 6 protocols. 7 (2) If protocols and regional patient care procedures do not provide off-line direction for the situation, the certified 8 person in charge of the patient must consult with their online medical control as soon as possible. Medical 9 control can only authorize a certified person to perform within their scope of practice. 10 (3) All prehospital providers must follow state approved 11 triage procedures, regional patient care procedures and county MPD patient care protocols. 12 The Estate contends that RCW 18.71.210’s prerequisite that paramedics operate 13 “under the responsible supervision and control . . . an approved medical program 14 director” equates to adherence to WAC-mandated protocols. 15 The Estate provides the Benton Franklin Counties Pre-Hospital Patient Care 16 Guidelines, revised Jun 2016 (“PCGs”). ECF No. 389-1. The introduction to the 17 protocols explains that “[a]ll EMS activities are supervised by the County Medical 18 Program Director . . . whose EMS authority includes recommending 19 certification/rectification of EMS personnel, training, and the development of 20 written protocols that specify the scope and practice of all EMS personnel in this 1 bi-county area.” ECF No. 381-1 at 3. 2 The PCGs “define the scope of practice of all EMS personnel” and provide 3 “a broad range of options in the management of patients at the scene.” ECF No. 4 389-1 at 3. The introduction explains that the written protocols “cannot cover 5 every situation that will be encountered in the field” and that “the EMT should not 6 be encumbered by requirements for immediate approval by Medical Control[.]” 7 ECF No. 389-1 at 3. The introduction indicates that “[a]ppropriate documentation 8 of any deviation in protocols is expected.” ECF No. 389-1 at 3. 9 The PCGs include a protocol for pediatric asthma, which indicates that 10 epinephrine should be administered after Albuterol, Ipatropium Bromide or 11 DuoNeb, and limited to an amount of “0.01 mg/kg of 1:1,000 SQ, (max: 0.3 cc).” 12 ECF No. 389-1 at 6. 13 The City Defendants do not argue that the protocol for pediatric asthma is 14 inapplicable, but offer the deposition testimony of Dr. Kevin Hodges, the County 15 Medical Program Director, who authored the protocols, to explain that the use of 16 IV epinephrine on Torres was not a deviation from the protocols or error. ECF No. 17 394 at 8-9. Dr. Hodges explains that the method of administering epinephrine, 18 subcutaneously or intravenously, is sometimes irrelevant where a patient is in an 19 extreme medical emergency. ECF No. 395-2 at 54:1-9. Dr. Hodges explains that 20 the protocols anticipate and allow the treatment that the medical responders gave 1 Torres. ECF No. 395-2 at 54:8-9. 2 While Dr. Hodges testifies that the IV epinephrine given was within 3 protocol, Marsh and Day testified that it was not. ECF No. 389-7 at 6:8-12; ECF 4 No. 389-6 at 117:3-9. Day testifies that he decided to use IV epinephrine before 5 departing in the ambulance, ECF No. 389-6 at 103:6-10, that he did not explicitly 6 document in plain terms that he deviated from the protocol, but did record that he 7 used IV epinephrine, ECF No. 389-6 at 118:1-119:3, and that he did not call the 8 hospital before administering IV epinephrine. ECF No. 389-6 at 107:7-22. 9 The Estate asserts that “[t]he law in Washington is clear: first responders 10 must operate under the authorized scope of care defined by state-approved 11 protocols.” ECF No. 387 at 16. However, it is not clear from case law that strict 12 adherence to protocols is necessary for RCW 18.71.210(1) to take effect. The 13 relevant language from the statute requires that the medical responders operate 14 “under the responsible supervision and control of a licensed physician or an 15 approved medical program director or delegate[.]” RCW 18.71.210(1). 16 The only case the Estate offers in support is Samuels v. Multicare Health 17 System, No. 51827-9-II, 2019 WL 4849288 (Wash. Ct. App. Oct. 1, 2019), review 18 denied 458 P.3d 772 (Wash. 2020). There, the plaintiff pursued medical 19 negligence claims based upon the defendant paramedics’ alleged failure to apply 20 prehospital stroke triage procedures to identify her stroke symptoms. Id. at *1. 1 The Washington Court of Appeals affirmed summary judgment, finding statutory 2 immunity under RCW 18.71.210. Id. at *5. The court considered the plaintiff’s 3 argument that the stroke protocol was not applied as required by the Washington 4 Administrative Code. Id. The court did not consider whether the paramedics’ 5 alleged failure to contact the medical program director precluded statutory 6 immunity because the undisputed evidence showed that “the protocols governed 7 the first responders’ interaction with [plaintiff] and they acted within those 8 protocols . . . .” Id. at *6. 9 The manner in which the Washington Court of Appeals rejected the 10 plaintiff’s argument is instructive. The court wrote, 11 Samuels argues that [the stroke protocol] was not administered to her . . . . Even assuming these facts in the 12 light most favorable to Samuels, they do not create any genuine issues of material fact of gross negligence based 13 on this record. 14 Id. at *5. Therefore, the Samuels court considered any departure from the relevant 15 protocols only as far as the departure was relevant evidence of gross negligence, 16 which is not protected, as explained below. 17 The Samuels court’s application of RCW 18.71.210 was made in light of 18 “the policy underlying the statute[,]” which is “ intended . . . ‘to protect first 19 responders from the unduly inhibiting effect the fear of personal liability would 20 have on the performance of their professional obligations.’” Id. (quoting 1 Marthaller, 973 P.2d at 1101) (alterations and internal quotations omitted). The 2 court explained that plaintiff’s interpretation of RCW 18.71.210 “would lead to 3 absurd results that would defeat qualified immunity and permit liability even where 4 the first responders acted in good faith and without gross negligence.” Id. at *7. 5 The theory that the Estate now pursues would be counter to the purposes of 6 RCW 18.71.210, and other Washington law, as well. The Estate, although not 7 explicitly, essentially seeks to impose negligence per se against paramedics for 8 anything less than strict adherence to protocols. The Court declines to recognize 9 the theory. First, the PCGs are not written in a manner indicating that any 10 deviation therefrom without prior approval equates to the failure to operate under 11 the supervision of the medical director or constitutes gross negligence. See ECF 12 No. 389-1 at 3 (“in situations the protocols do not specifically address, or where 13 there is a need for immediate intervention . . . the EMT should not be encumbered 14 by requirements for immediate approval by Medical Control or destination hospital 15 physician.”). 16 Second, outside of particular circumstances, “since 1986 Washington has 17 eliminated negligence per se for the violation of a regulation but allows the 18 violation of a regulation to be considered as evidence of negligence.” Walter Fam. 19 Grain Growers, Inc. v. Foremost Pump & Well Servs., LLC, 506 P.3d 705, 711 20 (Wash. Ct. App. 2022) (citing RCW 5.40.050); Gerlach v. Cove Apts., LLC, 471 1 P.3d 181, 193 (Wash. 2020). Insofar as a deviation from the PCGs may impose 2 liability, the deviation would only be evidence of negligence, and the City 3 Defendants are immune from negligence. 4 Finally, “[t]he doctrine of negligence per se is not a separate cause of action, 5 but creates an evidentiary presumption that affects the standard of care in a cause 6 of action for negligence.” Dent v. NFL, 968 F.3d 1126, 1130 (9th Cir. 2020). 7 Therefore, RCW 18.71.210(1)’s admonition that paramedics are immune from 8 “simple negligence” would extend to negligence per se. Marthaller, 973 P.2d at 9 1100. 10 There remains no genuine dispute of fact that the City Defendants operated 11 under the responsible supervision of the Medical Director when rendering care to 12 Torres, even if they did not strictly adhere to the step-by-step instructions of the 13 asthma protocol. The Estate may not overcome statutory immunity premised 14 solely upon the City Defendants’ alleged departure from PCGs. The City 15 Defendants may only be held liable for the departure if the departure constitutes 16 gross negligence, which the Court next considers. 17 B. Gross Negligence 18 RCW 18.71.210(5) provides that “[t]his section shall not apply to any act or 19 omission which constitutes either gross negligence or willful or wanton 20 misconduct.” “Gross negligence” is “negligence substantially and appreciably 1 greater than ordinary negligence” and includes the “failure to exercise slight 2 care[.]” Nist v. Tudor, 407 P.2d 798, 803-04 (Wash. 1965). The Washington 3 Supreme Court has instructed as follows: 4 To survive summary judgment in a gross negligence case, a plaintiff must provide substantial evidence of serious 5 negligence. In determining whether the plaintiff has provided substantial evidence, the court must look at all 6 the evidence before it, evidence that includes both what the defendant failed to do and what the defendant did. If 7 a review of all the evidence suggests that reasonable minds could differ on whether the defendant may have failed to 8 exercise slight care, then the court must deny the motion for summary judgment. But if a review of all the evidence 9 reveals that the defendant exercised slight care, and reasonable minds could not differ on this point, then the 10 court must grant the motion. 11 Harper v. Dep’t of Corr., 429 P.3d 1071, 1078 (Wash. 2018).10 To determine the 12 degree of care in a particular case, courts must focus their analysis on “the hazards 13 of the situation confronting the actor.” Id. at 1077 (citations omitted). 14 The Estate argues that “both the Estate and KSD’s experts agree that the 15 paramedics’ acts and omissions violated the applicable standard of care.” ECF No. 16 17 10 Somewhat relatedly, paramedics are immune from liability for simple negligence 18 only where “they act in good faith.” Marthaller, 973 P.2d at 1101 (citing RCW 19 18.71.210). The Estate does not argue that the City Defendants lacked good faith 20 in rendering care to Torres, and offers no evidence to dispute the finding. 1 387 at 18. Dr. Smock explains that the medical responders’ “failure . . . to follow 2 the treatment protocols, their failure to request a deviation of the treatment 3 protocol, and their failure to report their treatment deviation constitutes a gross 4 deviation of pre-hospital emergency medical care.” ECF No. 376-4 at 8 ¶ 4. 5 Dr. Cornfield opined that IV epinephrine in Torres’s case was “a dangerous and 6 reckless strategy[.]” ECF No. 389-9 at 3-4. 7 The Estate’s proffer of evidence that the paramedics failed a standard of care 8 is directed at the incorrect standard. To deny summary judgment, the Court must 9 find that “reasonable minds could differ on whether the defendant[s] may have 10 failed to exercise slight care[.]” Harper, 429 P.3d at 1078. 11 It is undisputed that the paramedics acted swiftly to take vitals, administer 12 CPR, and to intubate Torres. ECF No. 386-6 at 41:7-43:16, 52:25-53:25, 55:2-7. 13 According to Day’s deposition testimony, he did not believe that subcutaneous 14 epinephrine would “have any affect” before arriving at the hospital, which is why 15 he administered IV epinephrine. ECF No. 386-6 at 55:17-22. According to Marsh, 16 he suggested IV epinephrine because he “didn’t think [they] had ten minutes of 17 him still being conscious, as [Torres] was looking pretty bad.” ECF No. 389-7 at 18 27:5-19. The paramedics “felt especially with the severity of his asthma and also 19 the fact that his heart rate was hovering around 60 at that point, he was on the 20 border of being bradycardic, [and they] felt the IV [epinephrine] was appropriate.” 1 ECF No. 389-7 at 27:20-28:3. 2 The Marthaller court was presented with similar evidence. 973 P.2d at 3 1100, 1102. There, an expert testified that the defendant paramedics failed the 4 appropriate standard of care for endotracheal intubation, but the Washington Court 5 of Appeals found statutory immunity because there was no dispute that the 6 defendant paramedics acted with good faith. Id.; see also Samuels, 2019 WL 7 4849288, at *3 (finding statutory immunity although the plaintiff offered expert 8 testimony from a stroke expert and an emergency medicine expert as to the 9 standard of care). A similar result was reached in Estate of Morgan v. North 10 Kitsap Fire and Rescue, where the plaintiff presented the expert opinion of a 11 licensed paramedic who opined that the defendant paramedics breached the 12 standard of care. No. 30197-1-II, 2004 WL 811952, at *2, 2 n.4 (Wash. Ct. App. 13 Apr. 13, 2004). The court explained that the opinion “was not sufficient to show 14 that [the paramedic defendant] was grossly negligent or willful or wanton in his 15 actions, the standard set forth in RCW 18.71.210.” Id. at *2. 16 While there perhaps remains a genuine dispute, through competing expert 17 testimony, as to whether the City Defendants adhered to the standard of care 18 expected of paramedics, there is no evidence disputing that the paramedics 19 exercised at least “slight care,” and the Court finds that “reasonable minds could 20 not differ on this point.” Harper, 429 P.3d at 1078. 1 Even the experts who have opined that the City Defendants failed the 2 standard of care expected of them did not find a lack of slight care. Dr. Cornfield 3 opines that “there was no basis for administration of intravenous epinephrine via 4 push[,]” but admits that “the paramedics may have had concerns about the 5 potential efficacy of either intramuscular or subcutaneous epinephrine[.]” ECF 6 No. 389-9 at 3. Dr. Smock opines that the City Defendants exhibited a “gross 7 deviation of prehospital medical care” but does not opine that the City Defendants 8 failed to exercise slight care. ECF No. 376-4 at 3, 8. 9 As Washington courts have consistently held, a plaintiff must demonstrate 10 more than a breach of the applicable standard of care to survive summary judgment 11 under RCW 18.71.210. If the degree of fault between negligence and gross 12 negligence was always a jury question, statutory immunity would have little 13 significance in the courts. To allow such claims to go to trial would obviate the 14 purpose of the statute, which is to provide first responders with “immunity from 15 suit” and to shield them from the “fear of personal liability[.]” Marthaller, 973 16 P.2d at 1101. 17 Here, the paramedics acted expeditiously to treat Torres and their decision- 18 making was informed by their observations and training. Finding no genuine 19 dispute of fact as to whether the City Defendants exercised slight care, statutory 20 immunity is appropriate in this case. 1 CONCLUSION 2 The Court grants summary judgment in favor of the City Defendants as to 3 the Estate’s claims against the City Defendants. 4 Accordingly, IT IS ORDERED: 5 1. The City Defendant’s Motion for Summary Judgment, ECF No. 374, 6 is GRANTED. 7 2. All claims against the City Defendants are DISMISSED WITH 8 PREJUDICE, with all parties to bear their own costs and attorney fees. 9 3. The Clerk’s Office shall ENTER JUDGMENT in favor of the City 10 Defendants and against the Estate. 11 IT IS SO ORDERED. The District Court Executive is directed to file this 12 Order and provide copies to the parties. 13 DATED May 31, 2023. 14 s/Mary K. Dimke 15 MARY K. DIMKE UNITED STATES DISTRICT JUDGE 16 17 18 19 20 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10698293. Public record. Not legal advice.