Marci Peterhans, V. University Of Washington, Et Ano

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARCI PETERHANS, individually No. 86838-1-I

and AS GUARDIAN FOR COLIN

PETERHANS, DIVISION ONE

Appellant, PUBLISHED OPINION

v.

UNIVERSITY OF WASHINGTON, a

Washington State Agency, and THE

STATE OF WASHINGTON,

Respondent.

FELDMAN, J. — Marci Peterhans, individually and as Colin Peterhans’

guardian, alleges that Colin was negligently discharged from Harborview Medical

Center’s psychiatric department following involuntary treatment under the

Involuntary Treatment Act (ITA), RCW 71.05, which requires proof of bad faith or

gross negligence. 1 Finding insufficient evidence to establish such a claim, the trial

court dismissed it on summary judgment. Peterhans appeals that ruling as well as

the trial court’s earlier ruling granting reconsideration of an order dismissing

Peterhans’ complaint under CR 41(a). We affirm.

1 Because this matter involves both Colin and Marci Peterhans, we refer to Colin by his first name

to avoid confusion. And, given her role as plaintiff, we refer to Marci Peterhans as “Peterhans.”

Also, as used herein, “Defendants” refers to the University of Washington and the State of

Washington as set forth in Peterhans’ complaint and discussed in section I of this opinion.

No. 86838-1-I

I

Because the principal issue in this appeal is whether the trial court erred in

granting Defendants’ motion for summary judgment, the facts herein are set forth

in the light most favorable to Peterhans, the non-moving party, based on the

evidence submitted on summary judgment. Harper v. State, 192 Wn.2d 328, 340,

429 P.3d 1071 (2018).

On August 12, 2020, Colin was admitted to Harborview for involuntary

treatment under the ITA after overdosing on lithium medication. Colin has an

“extensive psychiatric history,” which includes a history of suicide attempts. At the

time he was admitted, Colin had a number of risk factors for suicide, including his

“psychiatric diagnoses, psychotic symptoms, history of substance use, recent

psych hospitalizations within the past year, and recent suicide attempt.” Six weeks

later, on September 26, Colin “seriously assaulted” a Harborview staff member and

was placed in seclusion. He remained in seclusion following this event as he was

unable to say he would not assault again. Around this same time, Colin also

engaged in self-harm—he cut his hand—and refused treatment.

Harborview psychiatrist Dr. Sharon Romm discharged Colin from

Harborview on September 28. According to the discharge summary, “[i]t was

believed that he wasn’t benefitting from hospitalization so discharge was planned.”

The discharge summary also indicates Colin “denied [suicidal ideation] at time of

discharge.” When Peterhans learned Colin would be discharged, she contacted

Dr. Romm and asked her “to keep Colin there at Harborview until [she] could get

a plane and fly back to be there for him.” Peterhans testified she “spoke to two

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providers that day, one of whom told [her] something to the effect that ‘they would

no longer be Colin’s babysitter.’”

Colin left Harborview at approximately 4 p.m. He was given one week of

medication (so limited due to previous overdose attempts) and agreed to continue

taking the medication following discharge. A taxi transported Colin to his

apartment, where he discovered that someone had stolen his belongings.

Following that discovery, Colin jumped from his fifth-floor apartment window. He

arrived at Harborview’s emergency department just after midnight on September

29, having suffered a permanent brain injury leaving him in a coma-like state.

In April 2023, Peterhans, individually and as guardian for Colin, sued the

University of Washington and the State of Washington, asserting that Dr. Romm—

their employee at Harborview—caused Colin’s injuries by negligently discharging

him from Harborview’s psychiatric facility. Although Defendants filed an answer

largely denying Peterhans’ allegations, they do not dispute, as Peterhans’

complaint alleges, that the University manages the hospital and that employees of

Harborview, including Dr. Romm, are State employees.

On May 3, 2024, Defendants filed a motion for summary judgment arguing

that Peterhans could not establish liability. The trial court heard oral argument on

the motion on May 31, 2024. At the conclusion of the hearing, the court informed

the parties it intended to issue a written ruling later that day. Shortly after the

hearing, Peterhans’ counsel e-mailed the court and Defendants’ counsel indicating

Peterhans would immediately seek voluntary dismissal under CR 41.

Approximately 20 minutes later, Peterhans submitted a formal motion for voluntary

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dismissal, and the trial court promptly entered an order dismissing the case without

prejudice.

The next court day, June 3, Peterhans refiled her complaint, which was

assigned to a different judge. Defendants then filed a motion for reconsideration

of the previous dismissal order, arguing Peterhans could not voluntarily dismiss

the case after it had been submitted to the court for a decision on summary

judgment. The court granted the motion for reconsideration and vacated the

voluntary dismissal order. The court then turned again to Defendants’ summary

judgment motion and granted it. Peterhans appeals.

II

A

Peterhans argues the trial court erred when it granted Defendants’ motion

for reconsideration regarding the court’s previous dismissal order. We disagree.

CR 41(a) addresses “voluntary dismissal” and distinguishes between

“mandatory” and “permissive” dismissal. Only mandatory dismissal is relevant

here. Addressing that issue, CR 41(a)(1)(B) provides in relevant part, “any action

shall be dismissed by the court . . . [u]pon motion of the plaintiff at any time before

plaintiff rests at the conclusion of plaintiff’s opening case.” The trial court’s

application of CR 41(a)(1)(B) is a question of law, which we review de novo.

League of Women Voters of Wash. v. King County Records, Elections & Licensing

Servs. Div., 133 Wn. App. 374, 378, 135 P.3d 985 (2006) (“Where we are required

to review the application of a court rule to the facts . . . our review is . . . de novo.”).

In the context of a summary judgment proceeding, a plaintiff has a right to

voluntary dismissal until the summary judgment motion has been submitted to the

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court for determination. Paulson v. Wahl, 10 Wn. App. 53, 57, 516 P.2d 514

(1973). Where a motion for voluntary dismissal has been filed before the hearing

on summary judgment has begun, the motion must be granted as a matter of right.

Greenlaw v. Renn, 64 Wn. App. 499, 503, 824 P.2d 1263 (1992). But once the

trial court has announced its oral decision, a plaintiff has no right to voluntary

dismissal. Beritich v. Starlet Corp., 69 Wn.2d 454, 458-59, 418 P.2d 762 (1966).

The facts of this case lie between those in Greenlaw and Beritich. The

summary judgment hearing had begun and the parties had concluded their oral

arguments, but the trial court had not yet announced its decision. We hold that,

under these circumstances, the motion for summary judgment had been submitted

to the court for determination for purposes of applying the above legal principles,

notwithstanding the fact that the court had not yet rendered a decision. Absent

such a rule, claimants could unilaterally dismiss an action whenever the court

expresses skepticism regarding the party’s claims at a summary judgment hearing,

which would allow improper judge shopping and waste both private and judicial

resources. Applying this rule here, Peterhans was not entitled to voluntary

dismissal under CR 41(a)(1)(B).

Nor did Defendants waive this argument, as Peterhans claims, by failing to

object to Peterhans’ dismissal motion during the short interval between the time

Peterhans filed the motion and the time the trial court granted it. “[T]he purpose of

the error preservation requirement is to allow the trial court an opportunity to

correct the error by bringing it to the court’s attention.” Salas v. Hi-Tech Erectors,

168 Wn.2d 664, 671 n.2, 230 P.3d 583 (2010). Here, Defendants appropriately

brought the asserted error to the trial court’s attention by filing a timely motion for

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reconsideration of the previous dismissal order, thereby allowing the trial court to

correct the asserted error, which it did. Peterhans’ waiver argument therefore fails.

B

Peterhans next argues the trial court erred when it granted Defendants’

motion for summary judgment dismissing her claims. We again disagree.

Because Colin received treatment under the ITA, Peterhans cannot hold

Defendants liable for professional negligence in the same way she could in an

ordinary medical setting. Addressing that issue, the ITA states:

No officer of a public or private agency, nor the superintendent,

professional person in charge, his or her professional designee, or

attending staff of any such agency . . . designated crisis responder,

nor the state . . . shall be civilly or criminally liable for performing

duties pursuant to this chapter with regard to the decision of whether

to admit, discharge, release, administer antipsychotic medications,

or detain a person for evaluation and treatment: PROVIDED, That

such duties were performed in good faith and without gross

negligence.

RCW 71.05.120(1) (emphasis added). Thus, Defendants cannot be liable under

the ITA for Dr. Romm’s discharge decision unless Peterhans establishes either

gross negligence or bad faith.

Starting with bad faith, Peterhans failed to meaningfully address this issue

in response to Defendants’ summary judgment motion. As the trial court correctly

concluded: “No evidence whatsoever has been provided to show action in bad

faith.” The court then added,

The Court cannot take counsel’s argument as an established fact,

despite the framing as a “circumstantial” fact. It is pure argument the

patient discharge was somehow motivated by some sort of

retribution due to an incident a few days before discharge, when Mr.

Peterhans pushed a staff member. No witness even suggests this

to be true.

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The record supports that determination. We therefore focus, as did the trial court

below, on Peterhans’ attempt to establish gross negligence.

Our Supreme Court summarized Washington law regarding proof of “gross

negligence” in Harper. Citing its earlier opinion in Nist v. Tudor, 67 Wn.2d 322,

407 P.2d 798 (1965), the court explained:

In Nist, the foundational case on the issue, we expanded on the

“frequently expressed statement that gross negligence means the

failure to exercise slight care.” 67 Wash.2d at 324, 407 P.2d 798

(citing Crowley v. Barto, 59 Wash.2d 280, 367 P.2d 828 (1962);

Eichner v. Dorsten, 59 Wash.2d 728, 370 P.2d 592 (1962)). In doing

so, we described “gross negligence” as “negligence substantially and

appreciably greater than ordinary negligence.” Id. at 331, 407 P.2d

798. The failure to exercise slight care, we continued, does not mean

“the total absence of care but care substantially or appreciably less

than the quantum of care inhering in ordinary negligence.” Id.

Harper, 192 Wn.2d at 342. Summarizing these various legal standards, the court

stated: “To survive summary judgment in a gross negligence case, a plaintiff must

provide substantial evidence of serious negligence.” Id. at 345-46 (emphasis

added). 2

Applying these definitions, the court in Harper explained that the first step

when analyzing a claim of gross negligence on a motion for summary judgment is

to “specifically identify the relevant failure alleged by the plaintiff.” Id. at 343. The

second step is to “determine whether the plaintiff presented substantial evidence

that the defendant failed to exercise slight care under the circumstances

2 In this respect, Harper is consistent with the Third Restatement of Torts, which succinctly states

that gross negligence “simply means negligence that is especially bad.” RESTATEMENT (THIRD) OF

TORTS § 2 (AM. LAW INST. 2010). In Swank v. Valley Christian School, 188 Wn.2d 663, 398 P.3d

1108 (2017), our Supreme Court similarly explained, “Stated more fully, [gross negligence] is the

‘failure to exercise slight care, mean[ing] not the total absence of care but care substantially or

appreciably less than the quantum of care inhering in ordinary negligence.’” Id. at 684 (emphasis

added) (quoting Nist, 67 Wn.2d at 331). Thus, the “absence of slight care” formulation is ultimately

encompassed within the “serious negligence” standard.

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presented, considering both the relevant failure and, if applicable, any relevant

actions that the defendant did take.” Id. Importantly, Harper also states, “Although

breach is generally a question left for the trier of fact, the court may determine the

issue as a matter of law ‘if reasonable minds could not differ.’” Id. at 341 (quoting

Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999)). We review

the trial court’s decision regarding this issue de novo and, like the trial court, “we

consider ‘facts and reasonable inferences from the facts . . . in the light most

favorable to the nonmoving party.’” Id. at 340 (quoting Hertog, 138 Wn.2d at 275).

The trial court’s summary judgment ruling does not comprehensively state

the applicable legal standard as set forth in Harper. It instead focuses solely on

the slight care standard as follows:

[T]o prevail on this motion, Plaintiff must show that Dr. Romm’s

behavior showed a lack of even slight care.

....

[T]he Court finds that reasonable minds could not differ about the

fact that UW Defendants certainly exercised at least slight care,

which is all that is necessary to overcome an allegation of gross

negligence in a motion for summary judgment . . . . [T]he

demonstration of slight care is all that is required to maintain that

immunity [under the ITA].

At no point did the trial court acknowledge that “[t]he failure to exercise slight care,”

as our Supreme Court “expanded on” in Nist, “does not mean ‘the total absence of

care but care substantially or appreciably less than the quantum of care inhering

in ordinary negligence.’” Harper, 192 Wn.2d at 342 (quoting Nist, 67 Wn.2d at

331). Nor did the trial court acknowledge or apply the Harper court’s holding, “To

survive summary judgment in a gross negligence case, a plaintiff must provide

substantial evidence of serious negligence.” Id. at 345-46. Without a more precise

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statement of the applicable legal standard, we cannot determine whether the trial

court improperly curtailed its analysis.

Regardless, we may affirm on any grounds supported by the record, 3 and

we do so here. At bottom, the fatal flaw in Peterhans’ response to Defendants’

summary judgment motion is that it is not adequately supported by expert

testimony. Because Peterhans alleges medical negligence, establishing whether

reasonable minds could differ with regard to gross negligence requires expert

testimony stating the applicable standard of care, explaining how the care given to

Colin fell substantially short of that standard, and establishing causation. Hill v.

Sacred Heart Med. Ctr., 143 Wn. App. 438, 446, 448, 177 P.3d 1152 (2008).

Critical here, “The expert’s opinion must be based on fact and cannot simply be a

conclusion or based on an assumption if it is to survive summary judgment.” Volk

v. DeMeerleer, 187 Wn.2d 241, 277, 386 P.3d 254 (2016).

Reyes v. Yakima Health District, 191 Wn.2d 79, 87, 419 P.3d 819 (2018),

draws “[a] useful contrast . . . between two similar cases to demonstrate what is

required for a medical expert’s testimony to create a genuine issue.” It begins with

Keck v. Collins, 184 Wn.2d 358, 357 P.3d 1080 (2015), where the plaintiff’s expert

testified as follows:

“The surgeons performed multiple operations without really

addressing the problem of non-union and infection within the

standard of care. ...

…With regards to referring Ms. Keck for follow up care, the records

establish that the surgeons were sending Ms. Keck to a general

dentist as opposed to an oral surgeon or even a plastic surgeon or

3 In the Matter of Gilbert Miller Testamentary Credit Shelter Tr. & Estate of Miller, 13 Wn. App. 2d

99, 107, 462 P.3d 878 (2020) (citing Blue Diamond Grp., Inc. v. KB Seattle 1, Inc., 163 Wn. App

449, 453, 266 P.3d 881 (2011)).

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an Ear, Nose and Throat doctor. Again, this did not meet the

standard of care as the general dentist would not have had sufficient

training or knowledge to deal with Ms. Keck’s non-union and the

developing infection/osteomyelitis.”

Reyes, 191 Wn.2d at 87 (quoting Keck, 184 Wn.2d at 371). Based on that

testimony, the Supreme Court held “a jury could conclude that a reasonable doctor

would have referred Keck to another qualified doctor for treatment—standard of

care—and that the Doctors did not treat her issues or make an appropriate

referral—breach.” Keck, 184 Wn.2d at 372.

Next, the court in Reyes discusses Guile v. Ballard Community Hospital, 70

Wn. App. 18, 851 P.2d 689 (1993), where the plaintiff’s expert testified:

“Mrs. Guile suffered an unusual amount of post-operative pain,

developed a painful perineal abscess, and was then unable to

engage in coitus because her vagina was closed too tight. All of this

was caused by faulty technique on the part of the first surgeon, Dr.

Crealock. In my opinion he failed to exercise that degree of care,

skill, and learning expected of a reasonably prudent surgeon at that

time in the State of Washington, acting in the same or similar

circumstances.”

Reyes, 191 Wn.2d at 87 (quoting Guile, 70 Wn. App.at 26). Unlike the expert

testimony in Keck, the testimony in Guile was determined to be “insufficient”

because it was “merely a summarization of Guile’s postsurgical complications,

coupled with the unsupported conclusion that the complications were caused by

Crealock’s ‘faulty technique.’” Guile, 70 Wn. App.at 26.

Having described these two comparators, the court in Reyes turned to the

expert testimony at issue in the appeal. The expert there submitted two affidavits.

In the first affidavit, the expert testified:

(a) Jose Reyes did not have tuberculosis when he presented at

Yakima Health District and Dr. Spitters, stated with reasonable

medical certainty;

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(b) Jose Reyes did suffer from chronic liver disease, and was at risk

for catastrophic liver failure if he were treated with medicines

contraindicated for liver disease, stated with reasonable medical

certainty;

(c) Jose Reyes presented to Yakima Health District and Dr. Spitters

with clinical symptoms of liver failure that should have been

easily diagnosed by observation of the patient, stated with

reasonable medical certainty;

(d) The failure of Yakima Health District and Dr. Spitters to

accurately diagnose Jose Reyes’ liver disease and liver

deterioration due to prescribed medications to treat tuberculosis

that were contraindicated for Jose Reyes were direct and

proximate causes of Mr. Reyes’ liver failure and death, stated

with reasonable medical certainty.

191 Wn.2d at 88. And in a second affidavit, the expert stated: “[a]n alternate drug

should have been introduced for Mr. Reyes if the defendants chose to treat Mr.

Reyes empirically for tuberculosis.” Id.

Comparing this expert testimony to that in Keck and Guile, the court held it

was insufficient to create a genuine issue of material fact. The court summarized

its holding as follows:

There is no indication of what a reasonable physician should have

done other than diagnose liver failure by observation of the patient.

This circular conclusion is akin to the deficient expert witness

testimony in Guile, where an allegation that a reasonable doctor

would not have acted negligently was found insufficient to create a

genuine issue of material fact. 70 Wash.App. at 26, 851 P.2d 689.

Nor can negligence be inferred from the factual allegations relating

to Mr. Reyes’ tragic death. See Watson v. Hockett, 107 Wash.2d

158, 161, 727 P.2d 669 (1986) (“[A] doctor will not normally be held

liable under a fault based system simply because the patient suffered

a bad result.”). Allegations amounting to an assertion that the

standard of care was to correctly diagnose or treat the patient are

insufficient. Instead, the affiant must state specific facts showing

what the applicable standard of care was and how the defendant

violated it. Dr. Martinez failed to do so.

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191 Wn.2d at 89. Lastly, the court added, “In affirming the court of appeals, we do

not require affiants to aver talismanic magic words, but allegations must amount

to more than conclusions of misdiagnosis, with a basis in admissible evidence that

can support a claim.” Id. (citing Keck, 184 Wn.2d at 370).

Here, in response to Defendants’ summary judgment motion, Peterhans

relied on the testimony of William Newman, M.D., a board certified psychiatrist who

testified he is familiar with “[t]he standard of care for reasonably prudent inpatient

treatment and discharge decisions pertaining to patients in danger of harming

themselves.” In his initial declaration, Dr. Newman testified as follows:

4. I have reviewed substantial records pertaining to Colin’s

stay at the Defendant Harborview’s Psychiatric floor in August and

September of 2020.

5. Colin was discharged from the floor on September 28th,

2020. A matter of hours later he attempted suicide by jumping out

his apartment window, sustaining catastrophic injuries.

6. This suicide attempt was clearly foreseeable under the

circumstances and clearly preventable by not discharging him at that

time. Further, as amply documented in Defendant’s own chart, the

decision to discharge him fell significantly below the standard of care

for reasonably prudent psychiatrists under the circumstances, in the

state of Washington or any other state.

7. Colin was admitted to the Defendant’s psychiatric ward in

the first place on August 12th, 2020 following an apparent suicide

attempt, i.e., an overdose of lithium. His extensive psychiatric history

was significant for past episodes of self-harm, including another

recent overdose of lithium and a cut on his neck with a knife. Upon

admission he was “frankly psychotic.” He made little if any

discernable progress.

8. At one point during the stay he harmed himself with a cut

to his hand, and refused a wound consult that had been offered him.

9. Two days before discharge, he “seriously assaulted” a

male staff member and was placed in seclusion. The discharge

summary clearly states that “it was believed that he wasn’t benefiting

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from hospitalization” and discharge was therefore planned. In fact,

with a longstanding diagnosis of a Psychotic Disorder, Colin was the

exact type of patient who would be likely to benefit from inpatient

psychiatric treatment. The standard of care was to keep him

involuntarily committed until he was stable for discharge, i.e., clearly

not a danger to himself or others.

10. Up to literally the day before discharge, Colin’s Attending

Physicians continuously certified in his records that he “may not be

released from involuntary commitment to accept treatment on a

voluntary basis, or to be discharged from the hospital to accept

voluntary outpatient treatment upon referral.”

11. Indeed, three days before discharge, Dr. Sharon Romm

had certified that he “may not be released from involuntary

commitment to accept treatment on a voluntary basis.” Yet, three

days later----after his assault on the staff member----Dr. Romm

personally saw to his discharge.

12. In fact, records indicate that Dr. Romm was “concerned

about the patient’s risk of OD (overdose)” even as he was

discharged, and therefore had authorized only a one-week supply of

medications as he left.

13. It’s well known that psychiatric patients such as Colin are

at increased risk of suicide immediately following discharge from an

inpatient facility. Colin was discharged into his own care, though his

mother was in contact with the facility, and though out of town, was

asking them to at least delay discharge until she could be there to

see to Colin. Even had discharge been appropriate, which it wasn’t,

discharging Colin into his own care was an additional breach of the

standard of care.

14. The above is an overview of my opinions, namely

(1) Colin’s discharge was below the standard of care for reasonably

prudent inpatient psychiatrists in the situation presented, at the

relevant time in the State of Washington and (2) keeping him

hospitalized and under reasonably prudent care would have

prevented his suicide attempt immediately following discharge.

Then, in a supplemental declaration, Dr. Newman cited the pattern jury instruction

regarding gross negligence and opined: “In my opinion, to a reasonable degree of

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medical certainty, the decision to discharge Colin at all, let alone to his own care

was ‘gross negligence’ as defined by the Washington pattern jury instruction.”4

Applying the above legal principles regarding the meaning of “gross

negligence” and the sufficiency of expert testimony in cases alleging medical

negligence to Dr. Newman’s declarations, there are at least two overarching flaws

in his testimony. First, similar to the expert testimony in Reyes and Guile, there is

no indication what a reasonable physician should have done other than delay

Colin’s discharge. As the court observed in Reyes, this is “akin to the deficient

expert witness testimony in Guile, where an allegation that a reasonable doctor

would not have acted negligently was found insufficient to create a genuine issue

of material fact.” Reyes, 191 Wn.2d at 89 (citing Guile, 70 Wn. App. at 26). This

deficiency is especially troubling here because Colin was receiving involuntary

treatment under the ITA, which allows the State to detain a person for evaluation

and treatment only when certain statutory criteria are satisfied. Relevant here, the

stated intent of the statute includes: “[t]o protect the health and safety of persons

suffering from behavioral health disorders”; “[t]o prevent inappropriate, indefinite

commitment of persons living with behavioral health disorders”; “[t]o safeguard

individual rights”; and “[t]o encourage, whenever appropriate, that services be

provided within the community” RCW 71.05.010(a), (b), (d), and (g). Dr.

Newman’s declaration does not address this statutory overlay. Like the expert

4 The pattern jury instruction cited by Dr. Newman states: “Gross negligence is the failure to

exercise slight care. It is negligence that is substantially greater than ordinary negligence. Failure

to exercise slight care does not mean the total absence of care but care substantially less than

ordinary care.” 6 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 10.07

(6th ed. 2012). While the instruction begins with the “slight care” formulation, it defines that legal

standard by comparing it to ordinary care, which, as discussed in the text above, is consistent with

controlling case law.

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testimony in Reyes and Guile, Dr. Newman’s bald assertion that a reasonable

doctor would not have discharged Colin when and as Defendants did is insufficient

to create a genuine issue of material fact on summary judgment.

Second, notwithstanding the court’s holding in Harper that the applicable

analysis encompasses “both the relevant failure and, if applicable, any relevant

actions that the defendant did take,” 192 Wn.2d at 343, Dr. Newman does not

address the actions Defendants did take leading to discharge. The summary

judgment record shows that Dr. Romm and others at Harborview regularly

monitored Peterhans for suicide risk with multiple providers documenting that his

risk was low in the days just prior to discharge, that Dr. Romm evaluated Colin’s

treatment history and assessed his condition before discharge, and that Colin was

discharged under an outpatient care plan which included Colin’s agreement to take

his medications. Dr. Newman does not address these actions. Nor does he

explain how Defendants’ failure to take certain actions—short of simply denying

discharge—caused Colin’s injuries. Dr. Newman thus fails to fully engage in the

required analysis under Harper.

While Dr. Newman discusses some of the circumstantial facts associated

with discharge, he again fails to engage in the required analysis. For example, Dr.

Newman claims that, three days prior to discharge, Dr. Romm certified that Colin

“may not be released from involuntary commitment to accept treatment on a

voluntary basis” and then questions how that could no longer be true on the day of

discharge. This merely shows that Colin was not ready for discharge until Dr.

Romm and others reevaluated their prior determination—which clearly had to

occur at some point—and concluded they could no longer lawfully detain Colin for

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involuntary treatment. Dr. Newman does not explain how this iterative certification

process fell substantially short of the applicable standard of care. Dr. Newman

also states that Colin’s mother was or would soon be en route to Harborview and

then opines, “Even had discharge been appropriate, which it wasn’t, discharging

Colin into his own care was an additional breach of the standard of care.” But

there is no testimony substantiating this purported standard of care, which, broadly

applied, would require continuing to detain patients for involuntary treatment until

a family member arrived for discharge. The ITA contains no such proviso.

On this record, the trial court did not err in granting summary judgment

dismissing Peterhans’ cause of action for gross negligence. We affirm.

WE CONCUR:

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