“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”
How later courts described this case
- “Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”
- holding that the director of an intensive care unit had “sufficient medical training and nursing supervisory experience” to testify to the standard of care expected of critical care nurses
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
TAMMY DIETRICH, individually, and as
Personal Representative of the Estate of No. 83152-6-I
Skyler Velez and on behalf of the Statutory
Beneficiaries thereto, ORDER ON MOTIONS
FOR RECONSIDERATION
Appellant,
v.
BRUCE NEELY, M.D. and “JANE DOE”
NEELY, individually and as a marital
community; KATHLEEN HILL, MSW and
“JOHN DOE” HILL, individually and as a
marital community; ADA MICHELE GUERIN,
R.N. and “JOHN DOE” GUERIN, individually
and as a marital community; CHELSEA
BOLEY, R.N. and “JOHN DOE” BOLEY,
individually and as a marital community;
MAURICE WILKINS and “JANE DOE”
WILKINS, individually and as a marital
community; MULTICARE HEALTH
SYSTEMS, INC. a Washington Corporation
d/b/a MultiCare Auburn Medical Center;
CASCADE EMERGENCY PHYSICIANS,
INC., P.S., a Washington Corporation; “JOHN
DOES” 1-10, unknown healthcare providers
and their unknown spouses, individually and
as a marital community; DOE HEALTHCARE
ENTITIES 1-10, unknown health care entities,
DOE BUSINESS ENTITIES, 1-10, unknown
business entities,
Respondents,
JAMES VENTRESS, R.N. and “JANE DOE”
VENTRESS, individually and as a marital
community,
Defendants.
No. 83152-6-I/2
The respondents’ having filed a motion for reconsideration of the opinion
dated February 21, 2023 and the reviewing panel of the court having determined
that the motion should be granted in part; now, therefore, it is hereby
ORDERED that the respondents’ motion for reconsideration be granted in
part and the opinion filed on February 21, 2023 be withdrawn and a substitute
opinion filed.
The appellant having filed a motion for reconsideration of the opinion dated
February 21, 2023, and a majority of the panel having determined the motion
should be denied; now, therefore, it is hereby
ORDERED that the appellant’s motion for reconsideration be, and the same
is, hereby denied.
FOR THE COURT
2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TAMMY DIETRICH, individually, and as
Personal Representative of the Estate No. 83152-6-I
of Skyler Velez and on behalf of the
Statutory Beneficiaries thereto, DIVISION ONE
Appellant, UNPUBLISHED OPINION
v.
BRUCE NEELY, M.D. and “JANE DOE”
NEELY, individually and as a marital
community; KATHLEEN HILL, MSW
and “JOHN DOE” HILL, individually and
as a marital community; ADA MICHELE
GUERIN, R.N. and “JOHN DOE”
GUERIN, individually and as a marital
community; CHELSEA BOLEY, R.N.
and “JOHN DOE” BOLEY, individually
and as a marital community; MAURICE
WILKINS and “JANE DOE” WILKINS,
individually and as a marital community;
MULTICARE HEALTH SYSTEMS, INC.
a Washington Corporation d/b/a
MultiCare Auburn Medical Center;
CASCADE EMERGENCY
PHYSICIANS, INC., P.S., a Washington
Corporation; “JOHN DOES” 1-10,
unknown healthcare providers and their
unknown spouses, individually and as a
marital community; DOE HEALTHCARE
ENTITIES 1-10, unknown health care
entities, DOE BUSINESS ENTITIES, 1-
10, unknown business entities,
Respondents,
JAMES VENTRESS, R.N. and “JANE
DOE” VENTRESS, individually and as a
marital community,
Defendants.
No. 83152-6-I/2
COBURN, J. — Tammy Dietrich, individually and as personal
representative of the estate of her son, Skylar Velez, (collectively the Estate),
brought a wrongful death action against several employees of the MultiCare
Auburn Medical Center emergency department and a hospital security guard.
Velez voluntarily sought treatment after telling police he wanted to hurt himself
with a knife or run into traffic. He subsequently denied any suicidal ideations and
was released after hospital staff determined he was not a danger to himself.
Later that night, a hospital security guard asked police to remove Velez after he
refused to leave a construction area on the hospital’s campus. Minutes later,
Velez walked into traffic on a state highway and was killed. His death was ruled
a suicide. The trial court ruled that statutory immunity under the Involuntary
Treatment Act (ITA), Chapter 71.05 RCW, applied to all defendants and
dismissed all claims at summary judgment because the alleged facts did not
meet the standard of gross negligence. The Estate appeals the dismissals and
several other rulings. We affirm in part, reverse in part, and remand for further
proceedings.
FACTS
In the late afternoon on October 11, 2016, Skylar Velez, 25, called Auburn
police from a gas station telephone. Police subsequently arrived to conduct a
wellness check on Velez, who told responding officers that he wanted to kill
himself with a knife or by running into traffic. Velez told the police that he had
consumed methamphetamines and believed he was being followed. Velez
agreed to be transported to the hospital by ambulance. The ambulance
2
No. 83152-6-I/3
transported Velez to the MultiCare Auburn Medical Center at approximately 6:30
p.m.
Triage nurse Chelsea Boley met Velez after he arrived at the hospital’s
emergency department. Boley noted around 6:42 p.m. that Velez had told the
police that he wanted to “kill self with knife and run into traffic.” The hospital took
temporary possession of Velez’ knife while he was at the hospital. Velez
reported consuming “a line of amphetamines” at approximately 6 a.m. that day.
Boley also assessed Velez’ risk for suicide using an assessment referred to by its
acronym, “SAD PERSONS.” Boley determined that Velez met 6 out of 10
categories on the assessment, which gave Velez a score of 6 and represented a
“moderate risk” for suicide. One of the points represented a “[p]revious suicide
attempt or psychiatric care.” Boley instituted several interventions to mitigate that
risk. Velez was ordered to have a constant observer in the hospital, to have his
clothing and belongings removed from his person and securely stored, and to
have food and drinks served in a safe manner to prevent him from hurting
himself.
Around the same time as Boley’s assessment, emergency department
physician Dr. Bruce Neely evaluated Velez. Medical records show his notes
were entered at 6:53 p.m. Neely conducted a medical evaluation to ensure that
Velez could be cleared for a social worker to conduct a mental health evaluation.
During Neely’s evaluation, Velez denied experiencing suicidal ideation. Velez
indicated that he “has the will to live” and was not sure what the emergency
department could do for him. Velez gave a “rambling history” of being in
Northern California where his pack and sleeping bag were stolen. He explained
3
No. 83152-6-I/4
that he then worked his way north to Portland where his phone was stolen,
before coming to the Seattle area. He said people “keep coming after him for no
reason.” Velez said he was dropped off in Auburn by a cousin and it was the
“same shit, different toilet.” Velez said he ended up talking to the police for help
and they told him to go to the hospital.
Neely conducted a physical examination, finding that Velez was physically
within normal limits. Regarding Velez’ psychiatric symptoms, Neely noted that
his behavior was “normal,” his affect “blunt,” his speech “rapid and/or pressured
and tangential,” his thought content paranoid and “possibly” delusional, his
cognition and memory “impaired,” and that he expressed “impulsivity” but “no
suicidal plans.” Under past medical history, Neely listed unspecified asthma,
depression, and hypertension. Neely noted that he reviewed nursing notes and
vitals. Neely also ordered blood tests including a drug screen, which was
positive for amphetamines and cannabinoids. Neely later explained in a
deposition that a person who has used amphetamines will test positive for them
for approximately 48-72 hours after ingestion, though the effects wear off within
several hours. Based on his exam and lab tests, Neely medically cleared Velez
for a mental health evaluation. Neely recommended Velez follow-up with
HealthPoint Auburn North in seven days.
Medical records show that the pre-hospital report from the ambulance
transporters, American Medical Responses (AMR), was entered into the hospital
system at 6:54 p.m. That report listed ADHD, hypertension, bipolar disorder and
other PTSD in Velez’ medical history. The report’s narrative states Velez called
911 and told police that he wanted to hurt himself with a knife and that he also
4
No. 83152-6-I/5
had thoughts of running into traffic. It said Velez reported he was tired of being
homeless and that he did some “meth” the previous night. Velez thought he was
being followed by random people and kept writing down license plate numbers
saying “they are following us.” Neely’s notes make no mention of having
reviewed the AMR report, but later testified in a deposition that he did receive
verbal reports from the ambulance crew when Velez was first brought to the
hospital.
While under observation after triage, a patient care technician noted Velez
having an “inappropriate emotional response” by yelling after being upset by a
loud hospital intercom. The observation records noted that there were no other
concerns and that Velez never expressed suicidal ideation during the observation
period.
Velez then met with hospital social worker, Kathleen Hill, who performed a
mental health evaluation because Velez had initially expressed suicidal ideation
to the police. Velez told Hill that he had used meth in Seattle and traveled to the
Auburn area to meet a friend. Velez said police were following him so he made
suicidal statements to the police “to get their attention.” Velez denied having
suicidal ideation to Hill. He explained that he used his knife for killing animals for
food since he was homeless and camping. Velez did not present to Hill as being
paranoid or depressed. Velez told hill that he “hates it here” in Washington State
and planned to “hustle for money” at freeway exits to pay his way to New
Orleans. Hill gave Velez patient “resources for drop in centers to replace his ID.”
Hill then consulted with registered nurse Ada Guerin and Dr. Neely and
the group agreed that Velez should be discharged. Hill’s chart notes indicated
5
No. 83152-6-I/6
that the “[s]ocial worker viewed plan with Nurse Ada and medical staff.” Hill
confirmed in her deposition that the “plan” was as stated in her notes: to give
“resources for drop in centers to replace his ID.” Hill confirmed in her deposition
that Velez did not ask her to call anyone on his behalf and that she did not
volunteer to do so.
Guerin provided discharge instructions to Velez, which instructed him to
return to the emergency department if his symptoms worsened and
recommended follow up with a primary care physician. The instructions included
Neely’s provisional diagnosis of “mental health evaluation” and “poly substance
use” and directions to follow up in seven days at HealthPoint Auburn North, with
an address and phone number listed. Velez indicated that he understood the
instructions and Guerin returned his belongings. Velez then left the emergency
department “in no obvious distress.”
According to Hill, sometime after Velez’ discharge, a security guard called
her and informed her that Velez had returned and was asking for bus passes.
Hill went to the lobby with the passes and handed them to Velez. Hill had no
concerns about Velez after their second interaction, explaining that he did not
appear to be in distress and had no change in behavior since his discharge. Hill
subsequently ran into Velez outside the main entrance of the hospital while she
attended to another patient. Hill saw him sitting on a bench and again had no
concerns about him.
According to Auburn police records, at 11:31 p.m. that evening, hospital
security guard, Maurice Wilkins, called Auburn police to report a previously
discharged patient, “Skylar,” in a construction area in front of the ambulance bay
6
No. 83152-6-I/7
refusing to leave. Wilkins reported that he had not seen any weapons, but reported
that the male had a knife in a bag.
In a deposition taken more than four years after the incident, Wilkins
stated that he could not recall the incident. Wilkins explained that he has no
medical training nor any training on interacting with someone with suicidal
ideations. Wilkins stated generally that he is unable to get information about why
a patient is at the hospital or what they are treated for. Wilkins explained that
when he encounters people on hospital property, he would generally ask if they
needed assistance and if they are a patient. If someone was not a patient or
visitor, he explained that he would ask them to leave but would typically offer to
assist them in finding a ride or a way to their destination before he “kick[ed] them
off the property or call[ed] the police.”
Officer Christopher Mast responded to Wilkins’ call and was informed by
hospital staff that Velez had been a patient but was discharged that night. Mast
spoke with Velez who stated he believed people were following him and asked
for a ride to Peasley Canyon. Mast observed that Velez was cooperative and
compliant during their interaction. Auburn Police records noted that Velez “ha[d]
been cleared by the hospital but still thinks his life is in danger. He believes
people are following him wherever he goes.” Mast drove him to Peasley Canyon
Road and dropped him off close to midnight.
Just after midnight, a driver struck Velez as he stood in a lane of traffic on
State Route 18. Velez was initially identified by his hospital discharge papers. A
subsequent investigation ruled Velez’ death a suicide.
7
No. 83152-6-I/8
PROCEDURAL HISTORY
On September 19, 2019, Velez’ mother Tammy Dietrich filed a wrongful
death suit on behalf of herself and as personal representative of the Estate
against numerous hospital providers and staff who had treated or interacted with
Velez after he was brought to the emergency department prior to his death. 1 The
Estate alleged that negligence on the part of each defendant resulted in Velez’
death. The defendants jointly moved for partial summary judgment to determine
whether the heightened gross negligence standard under former RCW
71.05.120(1) (2016) applied to the defendants’ conduct in this case.
The Estate then moved for a continuance of the summary judgment
motion under CR 56(f) to allow for additional discovery to support its position that
the statute did not apply to limit defendants’ liability. The trial court denied the
Estate’s motion to continue. The trial court subsequently granted the defendants’
motion for partial summary judgment finding that the statutory limited immunity
applied because the defendants acted to determine whether to discharge Velez
or to treat him involuntarily. The Estate subsequently moved the trial court to
reconsider its application of former RCW 71.05.120(1), particularly as to hospital
security guard, Wilkins. The court denied the motion. The Estate then amended
its complaint to allege that defendants had acted with gross negligence.
1
The Estate sued MultiCare Health Systems, which does business as MultiCare
Auburn Medical Center; Cascade Emergency Physicians, the corporation that employed
Neely and provided for his services at the hospital; Dr. Bruce Neely; social worker
Kathleen Hill, registered nurse Ada Michele Guerin, registered nurse Chelsea Boley, and
hospital security guard Maurice Wilkins. The parties had previously agreed to dismiss its
claims against registered nurse James Ventress.
8
No. 83152-6-I/9
Defendants then jointly moved for summary judgment on all claims.
Alongside the joint motion, defendants submitted several expert declarations
opining on whether defendants exercised slight care in deciding to discharge
Velez. These declarations included those of a hospital security expert, a
registered nurse, a medical doctor, and a social worker, each stating that the
evidence established that the defendants did not fail to act with slight care. The
Estate submitted the declarations of Dr. Anthony Haftel, MD and Michelle Sipes-
Marvin, RN, who provided expert opinions as to whether the doctor, nurses, and
social worker acted with gross negligence.
The Estate moved, under the deadman’s statute, to prohibit testimony and
to strike inadmissible evidence from declarations by defendants’ experts. The
court denied the motion. The court also denied the Estate’s motion to disqualify
the judge after the Estate learned that his daughter has a master’s degree in
social work and is employed as a social worker.
The trial court dismissed all claims against all defendants finding that
“reasonable minds could not differ as to whether or not any of the defendants in
this case failed to exercise even slight care.” The trial court explained that upon
its review of the evidence, the “record reveals more than slight care on behalf of
every defendant.”
The Estate appeals.
9
No. 83152-6-I/10
DISCUSSION
Judicial Disqualification
The Estate first contends that the trial court erred in denying its motion to
disqualify the trial judge. The Estate argued that the trial judge’s impartiality
“might reasonably be questioned” under the appearance of fairness doctrine
because the trial judge’s adult daughter holds a master’s degree in social work,
which may require her to conduct suicide risk assessments.
We review whether trial judges’ decisions on motions for disqualification
were manifestly unreasonable or based on untenable grounds. Kok v. Tacoma
Sch. Dist. No. 10, 179 Wn. App. 10, 23-24, 317 P.3d 481 (2013) (citing State v.
Davis, 175 Wn.2d 287, 305, 290 P.3d 43 (2012)). A judicial proceeding satisfies
the appearance of fairness doctrine if a reasonably prudent and disinterested
person would conclude that all parties obtained a fair, impartial, and neutral
hearing. Tatham v. Rogers, 170 Wn. App. 76, 96, 283 P.3d 583 (2012). “‘The
test for determining whether the judge’s impartiality might reasonably be
questioned is an objective test that assumes that a reasonable person knows
and understands all the relevant facts.’” Kok, 179 Wn. App. at 24 (internal
quotation marks omitted) (quoting Tatham, 170 Wn. App. at 96). While the
asserting party need not show actual bias, it must produce sufficient evidence
demonstrating actual or potential bias, such as personal or pecuniary interest on
the part of the judge; mere speculation is not enough. Kok, 179 Wn. App. at 23-
24 (citing In re Pers. Restraint of Haynes, 100 Wn. App. 366, 277 n. 23, 996 P.2d
637 (2000)).
10
No. 83152-6-I/11
The Estate offers no evidence that the judge’s daughter was involved in
this matter or that the judge has any pecuniary interest in the outcome of the
case. The Estate also fails to cite any actions by the judge to support a concern
for the appearance of fairness.
The Washington State Supreme Court has previously declined to find that
recusal or disqualification was warranted even when the judge and her husband
had worked in the offices investigating and prosecuting the case but where there
was no “evidence to suggest the trial judge had any involvement . . . or interest”
in the hearing. State v. Gentry, 183 Wn.2d 749, 356 P.3d 714 (2015).
The trial court did not err in denying the Estate’s motion to disqualify.
Partial Summary Judgment
A. Gross Negligence
The Estate next contends that the trial court erred in granting the joint
defense motion for partial summary judgment, applying former RCW 71.05.120(1)
and requiring a gross negligence or bad faith standard to the claims. 2
We review summary judgments de novo. Strauss v. Premera Blue Cross,
194 Wn.2d 296, 300, 449 P.3d 640 (2019). Summary judgment is appropriate
when “‘there is no genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.’” Id. (alteration in original) (internal
quotation marks omitted) (quoting Rangers Ins. Co. v. Pierce County, 164 Wn.2d
545, 522, 192 P.3d 886 (2008)); CR 56(c). We must construe all facts and
inferences in favor of the nonmoving party. Scrivener v. Clark College, 181
2 The Estate does not allege bad faith in its claims.
11
No. 83152-6-I/12
Wn.2d 439, 444, 334 P.3d 541 (2014). “A genuine issue of material fact exists
when reasonable minds could differ on the facts controlling the outcome of the
litigation.” Dowler v. Clover Park Sch. Dist. No. 400, 172 Wn.2d 471, 484, 258
P.3d 676 (2011). The applicable standard of care is a question of law for the
courts to decide. Schneider v. Strifert, 77 Wn. App. 58, 61, 888 P.2d 1244
(1995) (citing Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992)).
The Estate challenges the trial court’s application of former RCW
71.05.120(1) because Velez sought treatment voluntarily. The Estate argues
that because Velez voluntarily went to the hospital for treatment, the ITA does
not apply, therefore the limited immunity is not applicable in this case. We
disagree.
Generally, a person seeking voluntary treatment is to be “released
immediately upon his or her request.” Former RCW 71.05.050 (2015). However,
the ITA provides an avenue for medical personnel to detain and treat a person
who suffers from a psychological condition that causes them to be “gravely
disabled or . . . to present a likelihood of serious harm.” Former RCW 71.05.040
(2004). When a patient presents such a concern to medical staff, they “may
detain such person for sufficient time to notify the county designated mental
health professional of such person’s condition” to enable the mental health
professional to authorize further custody for treatment. Former RCW 71.05.050.
The statute also provides limitations on liability for medical professionals
undertaking those decisions, stating
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, nor
12
No. 83152-6-I/13
any public official performing functions necessary to the
administration of this chapter, nor peace officer responsible for
detaining a person pursuant to this chapter, nor any county
designated mental health professional, nor the state, a unit of local
government, or an evaluation and treatment facility 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, [t]hat such duties were
performed in good faith and without gross negligence.
Former RCW 71.05.120(1) (emphasis added). This provision “exempts decision
makers from liability for ordinary negligence under certain circumstances,
substituting a gross negligence standard for duties performed pursuant to the act
with regard to decisions whether to ‘admit, discharge, release, administer
antipsychotic medications, or detain a person for evaluation and treatment.’”
Poletti v. Overlake Hosp. Med. Ctr., 175 Wn. App. 828, 833, 303 P.3d 1079
(2013).
This court has held that where a party challenges the decision not to
involuntarily hold someone for evaluation or treatment, “the immunity provision of
RCW 71.05.120 applies because the only authority . . . to detain [them] was
under [that] chapter.” Estate of Davis v. Dep’t of Corr., 127 Wn. App. 833, 841,
113 P.3d 487 (2005). This court has held that “while a hospital does have
authority under the statute to detain a patient briefly to obtain a formal evaluation,
the hospital will not face liability for discharging the patient without an evaluation
as long as the decision is made in good faith and without gross negligence.”
Poletti, 175 Wn. App. at 836. This limited immunity applies not only to the
ultimate decision of whether or not to detain a patient for involuntary treatment,
but “expressly includes a variety of other duties” which are “more than mere
13
No. 83152-6-I/14
mental decisions, but encompass the acts taken to effectuate those decisions.”
Ghodsee v. City of Kent, 21 Wn. App. 2d 762, 780, 508 P.3d 193 (2022).
“Potential civil liability does not only arise from the choice to administer
medications or detain an individual, but also the acts taken to carry out those
decisions.” Id.
Poletti presents similar facts to the instant case. Poletti arrived at an
emergency room in Seattle reporting homicidal and suicidal thoughts, along with
other psychiatric symptoms. Poletti, 175 Wn. App. at 831. Poletti voluntarily
agreed to be admitted to the psychiatric unit, but said she felt better and asked to
be discharged 18 hours after her admission. Id. She was released from the
hospital and died a short time later in a single car crash. Id. Poletti’s family
brought a wrongful death suit against the hospital and argued that the ordinary
negligence standard should apply because Poletti was not held involuntarily. Id.
The Poletti court rejected that argument, noting that the “application of the gross
negligence standard provided by RCW 71.05.120(1) is not limited only to
decision to detain a person against her will. It covers decisions whether or not ‘to
admit, discharge, release, administer antipsychotic medications, or detain a
person for evaluation and treatment.’” Id. at 835. The court found that it was
“clear the legislature intended to provide limited immunity for a range of decisions
that a hospital can make when a patient arrives, whether voluntarily or
involuntarily, for evaluation and treatment” holding that the hospital could not be
held liable for performing this duty in good faith and without gross negligence. Id.
The Estate argues that Poletti is distinguishable because unlike the patient
in Poletti, Velez was never determined to be suicidal and never voluntarily
14
No. 83152-6-I/15
admitted to the hospital. That distinction is not material when the statute reaches
decisions as to whether to release or detain for evaluation and treatment and the
only reason Velez was evaluated in the hospital was for reports of suicidal
ideation.
(i) Healthcare Defendants
In this case, the limitation on liability applies to Dr. Neely and to the
hospital staff assisting in the decision not to detain Velez and assisting in the acts
taken to effectuate that decision. The nursing staff, including Guerin and Boley,
performed acts required to assist Neely in making the decision to release Velez.
Medical records show that upon Velez’ admission to the emergency department,
Boley spoke with him about his admission and the suicidal ideation Velez
expressed to police before he agreed to be taken to the hospital. Hospital
records show that Boley conducted a suicide risk assessment of Velez during his
triage at the emergency department, which indicated he was a “moderate” risk for
suicide. The nursing notes reflect that Boley discussed his suicidal ideation and
drug use before notifying Velez of hospital procedure and ensuring Velez
understood them.
After Velez’s suicide risk assessment, Hill, the emergency department’s
social worker, met with Velez to conduct an additional assessment based on the
fact that Velez had reported suicidal ideation to police prior to hospital triage. Hill
noted that Velez denied suicidal ideation and did not appear paranoid or
depressed. Hill provided Velez resources for drop-in centers to replace his ID.
After evaluating Velez, Hill met with Guerin and Neely and the three
agreed to discharge Velez. Neely’s note on medical decision making stated,
15
No. 83152-6-I/16
Patient comes to the ED after allegedly making some suicidal
statements to police. He had screening blood work obtained and
was medically cleared for mental health evaluation. He was seen
by Social Work and was not expressing suicidal ideations or
homicidal ideations. He does not appear to need hospitalization. He
was given resources by Social Work and will be discharged to
home.
Subsequently, Guerin informed Velez of the discharge instructions and
Velez expressed “understanding and demonstrated willingness to learn.”
These staff were participating in the actions required to support the
decision of whether or not to detain Velez for treatment and are protected by the
limited immunity under former RCW 71.05.120(1). We conclude that the trial
court did not err in granting partial summary judgment to require that the Estate
prove its claims against Dr. Neely, Hill, Boley, and Guerin, under a higher
standard of gross negligence.
(ii) Security Guard
However, the trial court erred in extending this limited immunity to security
guard Wilkins. Wilkins did not perform duties to discharge, release or detain
Velez for evaluation and treatment, nor did Wilkins participate in any “acts taken
to effectuate” the decision of whether to detain a patient for involuntary treatment.
Ghodsee, 21 Wn. App. 2d at 780. That decision had already been made.
Wilkins’ only recorded contact with Velez occurred after Velez was
discharged from the emergency department. Auburn police records show that
Wilkins contacted police at approximately 11:14 p.m. to report that a previously
discharged patient, Velez, was refusing to leave the property and had a knife in
his bag. Because this record does not establish that Wilkins performed any
16
No. 83152-6-I/17
duties pursuant to the ITA, the trial court erred in ruling that the gross negligence
standard applied to claims against Wilkins.
For the same reason, the trial court abused its discretion in denying the
Estate’s motion for reconsideration. A trial court’s denial of a motion for
reconsideration is reviewed for abuse of discretion, meaning discretion that is
manifestly unreasonable, or exercised on untenable grounds or for untenable
reasons. River House Dev., Inc. v. Integrus Architecture, P.S., 167 Wn. App.
221, 231, 272 P.3d 289 (2012). Because the trial court applied the wrong legal
standard as to Wilkins, the court’s ruling was untenable.
B. CR 56(f) Continuance
The Estate also argues that the trial court erred in denying its motion to
continue, under CR 56(f), the defendants’ motion for partial summary judgment to
allow the Estate more time to conduct discovery. Under CR 56(f),
Should it appear from the affidavits of a party opposing the
motion that, for reasons stated, the party cannot present by affidavit
facts essential to justify the party’s opposition, the court may refuse
the application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.
Denial of a motion for continuance will be upheld absent a showing of
manifest abuse of discretion. Gross v. Sunding, 139 Wn. App. 54, 67-68, 161
P.3d 380 (2007) (citing Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474
(1989)). The trial court may deny a request to continue a summary judgment
motion if (1) the requesting party does not offer a good reason for the delay in
obtaining the desired evidence, (2) the requesting party does not state what
evidence would be established through additional discovery, or (3) the desired
17
No. 83152-6-I/18
evidence will not raise a genuine issue of material fact. Presbytery of Seattle v.
Shulz, 10 Wn. App. 2d 696, 712, 449 P.3d 1077 (2019) (quoting Kozol v. Dep’t of
Corr., 192 Wn. App. 1, 6, 366 P.3d 933 (2015)).
The only matter at issue in the motion for partial summary judgment was
whether the defendants were subject to the gross negligence standard under the
ITA. The Estate explained that it was requesting the continuance in order to
“engage in additional appropriate discovery” and to “consult with [its] experts
after discovery has been obtained.” The only specific discovery the Estate
sought in its motion was to “depose an MCAMC[3] representative about its
policies with respect to how MCAMC personnel are supposed to respond in this
type of situation.” The Estate does not explain how such a deposition would
affect the court’s determination of the standard of care applicable to this case.
The Estate similarly fails to state how the deposition they sought would raise a
genuine issue of material fact on the narrow issue of whether the gross
negligence standard under the ITA should be applied to the defendants. The trial
court subsequently denied the Estate’s motion.
Because the Estate did not state what evidence would be established
through additional discovery or how that evidence would create a genuine issue
of material fact as to the partial summary judgment, the trial court did not err in
denying the Estate’s motion for a continuance under CR 56(f).
3
MCAMC refers to the MultiCare Auburn Medical Center.
18
No. 83152-6-I/19
Summary Judgment
Lastly, the Estate contends that the trial court improperly denied its motion
to strike statements from declarations supporting summary judgment because
the challenged statements are barred under the deadman’s statute. The Estate
also maintains that, even under the gross negligence standard, dismissing all
claims was improper.
A. Deadman’s Statute
The Estate argues that because the challenged statements “rely in part on
defendants’ alleged conversations and interactions with the decedent . . . that are
not found in the medical records” they are inadmissible as testimony and cannot
be used to rule on a summary judgment motion. Defendants’ only response on
appeal is that the Estate waived the protection by presenting expert testimony
regarding the same transaction that it sought to preclude. Instead of citing to the
record, defendants only cite to their own motions below in response to the
Estate’s motion to strike declaration statements and opinions.
This court reviews evidentiary rulings made in connection with a summary
judgment ruling de novo. Ensley v. Mollmann, 155 Wn. App. 744, 752, 230 P.3d
599 (2010) (citing Ross v. Bennett, 148 Wn. App. 40, 45, 203 P.3d 383 (2008)).
The deadman’s statute “prevent[s] interested parties from giving self-serving
testimony about conversations or transactions with the deceased, because the
deceased is not available to rebut such testimony.” Rabb v. Est. of McDermott,
60 Wn. App. 334, 339, 803 P.2d 819 (1991). Under RCW 5.60.030, in an action
where an adverse party sues as representative of a deceased person,
19
No. 83152-6-I/20
A party in interest or to the record, shall not be admitted to
testify in his or her own behalf as to any transaction had by him or
her with, or any statement made to him or her, or in his or her
presence, by any such deceased . . . person.
The deadman’s statute precludes not only positive assertions that a
transaction or conversation with the decedent took place, but also testimony of a
“negative” character denying interactions with the decedent. Botka v. Est. of
Hoerr, 105 Wn. App. 974, 21 P.3d 723 (2001). Under the statute, an interested
party may testify about their own impressions as long as they do not concern a
specific transaction or reveal a statement made by defendant. Kellar v. Est. of
Kellar, 172 Wn. App. 562, 575, 291 P.3d 906 (2012) (citing Jacobs v. Brock, 73
Wn.2d 234, 237-38, 437 P.2d 920 (1968)).
Evidence concerning transactions with deceased presented at earlier
proceedings or submitted in connections with summary judgment motion can be
prohibited by the deadman’s statute. Bentzen v. Demmons, 68 Wn. App. 339,
345, 842 P.2d 1015 (1993). The protection of the statute may be waived when
the protected party introduced evidence concerning a transaction with the
deceased. Id. This waiver applies in connection with a summary judgment
motion as well as at trial. Hill v. Cox, 110 Wn. App. 394, 406, 41 P.3d 495
(2001).
While medical records are admissible under the deadman’s statute
because they are “not self-serving,” the introduction of medical records does not
waive the protections of the deadman’s statute as to the estate. Erickson v.
Robert F. Kerr, M.D., P.S., Inc., 125 Wn. 2d 183, 189, 883 P.2d 313 (1994).
20
No. 83152-6-I/21
“[P]arties may retain experts to make inferences based on admitted medical
records.” Id. (emphasis added).
While the deadman’s statute is inapplicable to actions brought by Dietrich
in her individual capacity, the statute applies to actions brought on behalf of
Velez’ estate. Id. at 190 (citing Maciejczak v. Bartell, 187 Wash. 113, 60 P.2d 31
(1936)). Thus, the following deadman’s statute analysis only applies as to claims
brought on behalf of the estate.
Here, the Estate alleges that the defendants attempted to introduce
otherwise inadmissible testimony concerning transactions with Velez through
expert witnesses. We analyze each challenged statement. 4
The Estate first challenges statements included in the declaration of Julie
Briggs, RN, BSN, MHA, an expert retained by the defense to evaluate nurses
Boley’s and Guerin’s actions in treating Velez. This testimony was used in an
expert declaration to support defendants’ motion for summary judgment. The
Estate argues that the expert improperly included the statement that Dr. Neely
recalled “that Mr. Velez had been flirting with Nurse Boley.” This statement was
based on Neely’s deposition when he testified to remembering “flirtatious
comments” Velez made to Boley. Though the comments were not made to
Neely, they were made in his presence by the deceased and, thus, subject to the
deadman’s statute because they were not referenced in the medical records.
4
The Estate also challenges several statements in the expert declarations
incorporating the testimony of security guard, Maurice Wilkins. However, as explained
infra pp. 32-33, the Estate failed to establish a prima facie case of negligence against
Wilkins, supporting the dismissal of the claims against him. Therefore, Wilkins’
testimony is not that of a party in interest to a transaction with the decedent and need
not be struck.
21
No. 83152-6-I/22
The Estate did not use or rely on this statement prior to defendants’ submission
of Briggs’ declaration. The trial court erred in denying the Estate’s motion to
strike this statement.
The Estate next challenges Briggs’ inclusion of the statement from
Guerin’s deposition testimony that “she verbally confirmed with [Velez] that he
could keep himself safe and that he knew how to get help if this was no longer
the case.” This statement, also not referenced in the medical records, was first
introduced by defendants in their joint motion for summary judgment.
Defendants contend that the Estate waived the protections of the
deadman’s statute because it first introduced this statement through a report
from its experts Haftel and Sipes-Marvin filed on April 29, 2020 in support of a
motion to continue, as well as documents from Haftel filed in support of the
Estate’s motion for summary judgment. The Estate filed its motion for summary
judgment about five hours before defendants filed their joint motion for summary
judgment. However, the introduced statements defendants cite to consist of the
expert’s opinions that Velez was not given suicide referral information and that
“[t]here was a complete failure to . . . implement an actual safety plan.” The
Estate did not first introduce in its motion for summary judgment or supporting
expert reports that Guerin testified that “she verbally confirmed with [Velez] that
he could keep himself safe and that he knew how to get help if this was no longer
the case.”
We conclude that this statement is a statement from a party in interest
about a transaction with the deceased and that the trial court erred in denying the
Estate’s request that it be stricken under the deadman’s statute.
22
No. 83152-6-I/23
The Estate also challenges Briggs’ reliance on a statement from social
worker Hill’s deposition that the resources Hill provided Velez “were set forth on
preprinted sheets that contained a variety of resources, including drop-in centers
to replace ID, food pantries, shelters, and the crisis hotline phone number.” This
testimony was first introduced by the Estate. A transcript of Hill’s testimony was
filed as an exhibit in support of the Estate’s motion for summary judgment. Thus,
the Estate waived the protections of the deadman’s statute by introducing the
statement first. As a result, Briggs was not precluded from relying on Hill’s
statements about her interactions with the deceased. The trial court did not err in
denying the Estate’s motion to strike the statement.
Next, the Estate challenges several statements relied on and first
introduced by defendant expert Megan Moore regarding Hill’s conduct as a social
worker in evaluating Velez.
The first challenged statement is Moore’s reliance on Hill’s deposition
testimony that Velez “denied suicidal ideation, in response, and said that he had
just been ‘f***ing’ with the police.” Hill’s notes in the medical records reflected
that Velez told Hill “police were following him and he made the SI statements to
get their attention.” In her deposition testimony, Hill elaborated that Velez had
actually told her he was “fucking” with the police, but that she had not written his
words verbatim in her report. Defendants correctly cite to the record establishing
that the Estate filed a copy of a transcript of Hill’s challenged statement prior to
its introduction by defendants and waived protections of the deadman’s statute.
The trial court did not err in denying the Estate’s motion to strike the statement
that alleged the exact language Velez used.
23
No. 83152-6-I/24
The next statement challenged is expert Moore’s reliance on Hill’s
deposition testimony that Hill “inquired about the existence of any prior suicidal
ideation or attempts, which Mr. Velez denied.” There was no evidence of this
interaction in the medical records and nothing in the record supports that the
Estate previously introduced such statement. Therefore, we conclude that the
trial court erred in denying the Estate’s motion to strike this challenged
statement.
The Estate also challenges Moore basing an inference on Hill’s testimony
that “Mr. Velez also stated that he had traveled to Washington to ‘meet a friend’
which shows that Ms. Hill inquired into whether Mr. Velez had any sort of support
structure in place.” This statement however, was included in the medical records
in Hill’s note that “Pt stated he used meth in Seattle and traveled here to meet a
friend.” As a result, we conclude that the trial court did not err in denying the
Estate’s motion to strike that statement.
Next, the Estate challenges Moore’s reliance on Hill’s testimony that “Mr.
Velez’ hygiene appeared to have been well-maintained.” This is not based on a
transaction with the decedent, but on Hill’s observations of him, which are
permitted under the deadman’s statute. Under the deadman’s statute, an
interested party may testify about their own impressions as long as they do not
concern a specific transaction or reveal a statement made by defendant. Kellar,
172 Wn. App. at 575 (citing Jacobs, 73 Wn.2d at 237-38). We conclude that the
court did not err in denying the Estate’s motion to strike this statement.
The Estate lastly challenges Moore’s inclusion of the statement
“Additionally, Ms. Hill provided Mr. Velez with a bus pass at his request, after he
24
No. 83152-6-I/25
was discharged.” This information was first introduced by the Estate in an exhibit
filed with its April 24, 2020 motion to continue, more than a year before
defendants filed their joint motion for summary judgment which included Moore’s
opinion. The Estate’s exhibit included a letter from the hospital indicating that
interviews with the staff, including the social worker involved in Velez’ case,
revealed that Velez had returned an hour after discharge requesting a bus pass.
We conclude that the trial court did not err in declining to strike the statement
because the Estate waived the statutory protection by first introducing it in its
motion to continue.
B. Decision to Release
To prevail on its claims relating to the decision to detain or release Velez,
the Estate was required to show that the relevant defendants’ actions failed to
follow the gross negligence standard of care and that this failure caused Velez’
death. See Keck v. Collins, 184 Wn.2d 358, 371, 357 P.3d 1080 (2015). “Gross
negligence” is negligence substantially and appreciably greater than ordinary
medical negligence. Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965).
“To avoid summary judgment on gross negligence, a plaintiff must present
‘substantial evidence that the defendant failed to exercise slight care under the
circumstances presented, considering both the relevant failure and, if applicable,
any relevant actions that the defendant did take.’” Dalen v. St. John Med. Ctr., 8
Wn. App. 2d 49, 61, 436 P.3d 877 (2019) (quoting Harper v. Dep’t of Corr., 192
Wn.2d 328, 343, 429 P.3d 1071 (2018)). Under the ITA, an incomplete or even
unreasonable assessment does not necessarily rise to the level of gross
negligence under the exemption statute. Id. at 62.
25
No. 83152-6-I/26
Expert testimony is generally required to establish the standard of care in
a medical malpractice case. Eng v. Klein, 127 Wn. App. 171, 176, 110 P.3d 844
(2005) (citing Young v. Key Pharms., Inc., 112 Wn.2d 216, 228, 770 P.2d 182
(1989)). This requires the plaintiff to present expert testimony to establish both
the standard of care expected of a Washington healthcare provider and to
explain how the care given to the patient fell short of that standard. Harris v.
Robert C. Groth, M.D., Inc., P.S., 99 Wn.2d 438, 448-49, 663 P.2d 113 (1983);
Hill v. Sacred Heart Med. Ctr., 143 Wn. App. 438, 446, 177 P.3d 1152 (2008).
Typically, the practitioner of one school of medicine is incompetent to testify as
an expert in a malpractice action against a practitioner of another school of
medicine. Eng, 127 Wn. App. at 176 (citing Miller v. Peterson, 42 Wn. App. 822,
831, 714 P.2d 695 (1986)). A physician is permitted to testify regarding a nurse’s
standard of care. Hall v. Sacred Heart Med. Ctr., 100 Wn. App. 53, 60, 995 P.2d
621 (2000) (holding that the director of an intensive care unit had “sufficient
medical training and nursing supervisory experience” to testify to the standard of
care expected of critical care nurses).
To establish the standards of care in this case, the Estate, on appeal,
largely relied on the testimony and depositions of their expert, Dr. Anthony Haftel,
who had previously directed emergency departments and served as a chief
medical officer in a large healthcare system. 5 Haftel described the standard of
care, focusing on what the providers should have done in order to show they
exercised slight care and opined that they had failed to exercise it.
The Estate also presented expert testimony from Michelle Sipes-Marvin, R.N. in
5
the summary judgment proceedings, but does not rely on her testimony on appeal.
26
No. 83152-6-I/27
If a review of all the evidence suggests that reasonable minds could differ
on whether the defendant may have failed to exercise slight care, then the court
must deny the motion for summary judgment. Harper, 192 Wn.2d at 346. But if
a review of all the evidence reveals that the defendant exercised slight care, and
reasonable minds could not differ on this point, then the court must grant the
motion. Id.
Based on the evidence presented to the trial court, reasonable minds
could not differ as to whether the healthcare providers exercised slight care. We
conclude that the trial court did not err in dismissing claims related to whether the
healthcare providers were grossly negligent in acts taken to effectuate the
decision to release Velez from the hospital. We analyze the actions of each of
the healthcare providers in turn.
(i) Nurse Boley
The Estate first alleges that Nurse Boley failed to exercise slight care in
the triage and suicide risk assessment she conducted with Velez.
Upon Velez’ presentation to the emergency department, Boley met with
Velez to conduct a triage assessment. Boley noted that Velez presented to the
hospital for suicidal ideation, writing that the patient “told cops that he wanted to
kill self with knife and run into traffic.” Boley noted Velez’ report that he had
ingested “a line of amphetamines” early in the morning that day. After Velez was
admitted, Boley conducted a suicide risk assessment, which provides a score for
each risk factor present. Boley’s assessment showed that Velez had a score of
six, which according to the medical records indicates a “moderate risk” of suicide.
27
No. 83152-6-I/28
The Estate argues that Boley failed to obtain an accurate score on the
SAD PERSONS scale by failing to include an additional point because Velez was
25 years old. Boley correctly scored the assessment tool available to her in the
hospital because that tool instructed that a point be given if the patient’s age was
“< 19 or > 45.” However, the tool did not comply with the hospital’s own suicide
assessment and intervention policy. Under the policy, a point should be given on
the SAD PERSONS scale if the patient’s age is “25-34; 35-44; 65+”. If Velez’
score was a seven on the SAD PERSONS scale, according to the policy, it would
have represented a category of “very high risk, hospitalize or commit.”
Haftel, the Estate’s expert, opined that “Boley’s failure to follow the simple
form was gross negligence and led to the failure of Skyler being offered
hospitalization and/or detained.” Haftel also noted that the hospital “negligently
posted a SAD PERSONS form in EPIC 6 which did not include the correct fields
and point assignments.” Accoring to Haftel, “[t]his falls way below the standard
of care expected of a reasonably prudent nurse acting in similar circumstances
and is grossly negligent.”
Under the hospital’s policy, nursing staff will complete SAD PERSONS
evaluation on all patients suspected of experiencing suicidal ideation or behavior
in the emergency department. Boley did that. Patients who score 5+ in the
emergency department will initiate a referral.
Patients suspected of experiencing suicidal ideation or behavior
while on the inpatient setting will be referred to clinical Crisis/social
worker and or psychology, psychiatry or psychiatric nurse
practitioner where these services are available. Where these
6 EPIC is an electronic record keeping system.
28
No. 83152-6-I/29
services are not available county specific community health
services will be accessed.
In fact, Velez was referred to social worker Hill who conducted a mental health
evaluation. The policy also provides that
Patients that score 5 or higher on SAD PERSONS evaluation or in
the inpatient setting upon identification of suicidal ideation or
behavior will be placed in direct observation and will be placed with
a 1: 1 constant observer.
Velez was placed under 1:1 observation and sometimes even 2:1 observation.
The medical record also reflects that observations recorded every 15 minutes. At
no point during the time of observation did Velez indicate that he was
experiencing suicidal ideation.
Pursuant to this risk score, Boley noted several interventions to mitigate
Velez’ risk of suicide. In addition to having a constant observer, Boley noted that
his food and beverages would be served in a safe manner. Velez’ belongings
were removed and secured, including his knife, he was provided hospital
clothing, and he was notified of procedures.
Though Haftel addressed what he believes Boley should have done, he
ignores what Boley did do. Viewing all the evidence, reasonable minds could not
differ that Boley exercised slight care.
(ii) Dr. Neely
The Estate next argues that Neely was grossly negligent in his treatment
and decision making in Velez’ case. The Estate argues that Neely failed to
review and recognize that Boley underscored Velez on the SAD PERSONS
assessment. The Estate also argues that Neely failed to make a medical or
29
No. 83152-6-I/30
psychiatric diagnosis of an individual presenting to the ER “who was almost
certainly having a manic, schizo-affective break.”
Haftel observed that Neely noted Velez’ “affect is blunt. His speech is
rapid and/or pressured and tangential. Thought process is paranoid and
delusional (possibly). Cognition and memory are impaired. He expresses
impulsivity. He expresses no suicidal plans.” Haftel opined that the “recorded
observations of Skyler clearly demonstrates a patient who was almost certainly
having a manic, schizo-affective break and, therefore, at high risk for suicide.
This would have been recognized by any emergency physician exercising slight
care.” In his deposition, Neely explained that the paranoid and delusional
notation referred to Velez reporting that he thought people were following him
around and from place to place. Neely noted “possibly” next to the entry
because he had no way of telling if that was actually happening. Neely explained
that the notation, “Cognition and memory are impaired” was more of a result of
the functionality of the note-writer application he used at that time to enter his
notes into the hospital’s electronic records system. There was only one check
box for cognition and memory. Neely selected it because he thought Velez’
memory was slightly impaired because he did not have a good description of
what had led up to the incident with the police. Neely testified that Velez
demonstrated some impulsivity when he interrupted the ambulance crew when
they tried to talk to medical staff, but the limitation in the documentation system
entered the note as “expresses impulsivity.”
The evidence shows that Neely assessed Velez and found that he did not
appear to be at risk of suicide. Neely explained that in a situation like this, his
30
No. 83152-6-I/31
main job is to perform a medical evaluation to ensure the patient is medically
cleared for a social worker to conduct a mental health evaluation, and then
discuss treatment options with the social worker. Neely met with Velez after his
arrival to the emergency department, noting that Velez was “very cooperative”
and “didn’t give any indication that he was under the influence of alcohol or
drugs.” Neely noted that Velez “denie[d] suicidal ideations, sa[id] he has the will
to live and is not sure what we can do for him in the [emergency room].” Neely
ordered blood work and consulted with Hill and Guerin before they agreed to
discharge Velez.
It is not enough that the Estate presents an expert who has a different
medical opinion than Neely’s. Under the gross negligence standard, reasonable
minds could not differ in concluding that Neely exercised slight care.
(iii) Social Worker Hill
The Estate next claims that Hill was grossly negligent in her evaluation
and discharge of Velez. Dr. Haftel was particularly critical of Hill’s conclusion that
Velez was appropriate to be released because he had a “forward-thinking plan.”
Haftel contends that Hill failed to address and discuss whether Velez had a job
lined up, or family support and medical support lined up in New Orleans. Haftel
opined that concluding Velez’ plan to be reasonable and forward-thinking “is
obviously gross negligence and shows a complete disregard for even a slight
degree of care or safety being directed toward Skyler.” Defense expert Moore,
opined that Hill covered the necessary points of an appropriate biopsychosocial
assessment that complies with the standard of care. Moore explained that
having a forward-thinking plan is a factor known to suggest that a person is not at
31
No. 83152-6-I/32
credible risk of self-harm and examples of that included Velez’ plan to panhandle
for money so he could travel to New Orleans, and expressing that he lost his ID
and needed a new one to facilitate that plan.
Again, under a gross negligence standard, the question is not whether Hill
could have done more. We must look at the entire record, including what Hill did
do. Doing so, we conclude that reasonable minds could not differ as to whether
Hill exercised slight care. Hill conducted a mental health evaluation and Velez
denied suicidal ideation. Hill noted that Velez “did not present as paranoid or
depressed” and that he had a plan to travel to New Orleans upon his release. As
part of this plan, Hill provided Velez with resources to replace his ID. Following
Hill’s assessment, she consulted with Neely and Guerin 7 and the three agreed to
discharge Velez. 8
C. Security Guard
As explained supra, Wilkins is not subject to the gross negligence or bad
faith standard provided under former RCW 71.05.120(1), but he is subject to
claims of negligence. The Estate claims that Wilkins was negligent in failing to
permit and/or assist Velez to re-enter the hospital for medical care and in calling
the police to have Velez removed from the hospital property.
7
Although the Estate also claimed below that Guerin had been grossly negligent
in her treatment of Velez, the Estate did not brief this issue as to Guerin on appeal. As a
result, we decline to address the dismissal of claims against Guerin as to this issue.
Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996) (“Passing treatment of an
issue or lack of reasoned argument is insufficient to merit judicial consideration.”).
8
Because we conclude that Hill exercised slight care, we need not address
whether Haftel was a qualified expert to opine as to the standard of care of a hospital’s
social worker in the emergency department.
32
No. 83152-6-I/33
To make a prima facie case of negligence, a plaintiff must prove four
elements: (1) duty, (2) breach, (3) causation, and (4) damages. Ghodsee, 21
Wn. App. 2d at 768 (citing Ranger, 164 Wn. 2d at 552). If any of these elements
cannot be established, summary judgment for the defendant is proper. Ranger,
164 Wn.2d at 552.
In support of its motion for summary judgment, Wilkins submitted expert
testimony from Alieu Ann, hospital assistant administrator for Harborview Medical
Center. Ann previously was its director of the Department of Public Safety and
oversaw the security department. Ann reviewed the Auburn Police records of its
interaction with Velez when Wilkins called police for assistance, Wilkins’
deposition and hospital policies and regulations. Ann testified that Wilkins fully
complied with the standard of care in his interaction with Velez following his
discharge.
The only expert testimony the Estate offered was that from Dr. Haftel, who
criticized Wilkins for calling the police instead of alerting hospital staff that Wilkins
may need help, but did not opine as to the standard of care for hospital security
guards. 9 Haftel is a former emergency room doctor and was previously director
of Division of Emergency Medicine at St. Joseph Medical Center and vice
president for quality and associate chief medical officer at Franciscan Health
Systems. Haftel does not establish any specialized knowledge, education, or
experience in hospital security.
9
We note that responding police, before dropping Velez off as he requested, was
advised by “hospital staff” that Velez had been evaluated and cleared by the facility.
33
No. 83152-6-I/34
Because the Estate has failed to establish a prima facie case of duty and
breach, the trial court did not err in dismissing all claims against Wilkins.
D. Safety Plan
The Estate also claims that defendants failed to complete or implement a
safety plan as required by the hospital’s own policies prior to discharging him
from the hospital.
Defendants’ response treats all of the Estate’s claims as relating to “duties
. . . with regard to the decision of whether to admit, discharge, release . . . or
detain” Velez. However, the Estate identified a claim that the healthcare
providers failed “to provide him appropriate care or direction for his suicidal
ideations and thoughts” in addition to failing to “properly assess, failing to admit
him as an inpatient to the hospital or another facility.”
We recognize that in some circumstances, a decision whether to detain or
release a patient under the ITA may include discussions and actions related to a
safety plan. If that were the case, then it may be possible that actions related to
a safety plan also are encompassed under the limited immunity statute of the
ITA. However, based on the record before us, that is not the situation in this
case. The record before us does not establish that the healthcare providers
discussed any contemplation of a safety plan 10 in their decision to discharge
10
Section III of the hospital’s suicide assessment and intervention policy
addresses discharge requirements:
A. Medical staff will assure that reasonable discharge/transfer plan is in
place for all patients presenting with mental health illness/behavior or
suicidal ideation.
B. Develop a reasonable discharge/transfer plan with Physician, where
available, Social Work and Psychiatrist/Psychology/Psychiatric ARNP.
34
No. 83152-6-I/35
Velez. Thus, the Estate’s claim that the healthcare providers failed to formulate
an adequate safety plan is subject to the ordinary medical negligence standard. 11
To show that the release plan was inadequate and was a proximate cause
of Velez’ death, The Estate must show four elements: (1) duty, (2) breach, (3)
causation, and (4) damages. Ghodsee, 21 Wn. App. 2d at 768 (citing Ranger,
164 Wn.2d at 552). “‘A proximate cause of an injury is defined as a cause which,
in a direct sequence, unbroken by any new, independent cause, produces the
injury complained of and without which the injury would not have occurred.’”
Rounds v. Nellcor Puritan Bennett, Inc., 147 Wn. App. 155, 162, 194 P.3d 274
(2008) (quoting Fabrique v. Choice Hotels Int’l, Inc., 144 Wn. App. 675, 683, 183
P.3d 1118 (2008)).
Defendants’ expert, Julie Briggs, confirmed that when handling discharge
for a patient who was evaluated for suicidal ideation and cleared, the nurse may
participate in safety planning as well as other providers involved in the patient’s
care, such as a social worker.
This discharge plan will include a patient safety plan and referrals to
appropriate services.
C. All interventions, specific comments made by patient, and concerns
related to patient’s suicidal ideation or behavior will be documented in the
EMR.
The policy’s outpatient guidelines address situations when patients do not have current
suicidal thinking or even when a patient denies such thinking but the provider continues
to suspect risk of suicide. The guidelines call for an “[i]ndividualized safety plan if patient
is not admitted to inpatient psychiatric care.” It requires documenting the safety plan in
the patient’s medical record. It notes that a safety plan may include identifying
supportive people: “Who is available to support and monitor patient? Identify
frequency/duration/extent/conditions of monitoring.”
11
The “ordinary medical negligence standard” is referring to the standard of care
outlined in chapter 7.70 RCW.
35
No. 83152-6-I/36
Because the trial court dismissed all claims and all defendants under the
gross negligence standard, the parties did not litigate and the trial court did not
consider if the Estate established a prima facie case of negligence as to whether
Velez was released with an appropriate safety plan. We reverse the dismissal of
this claim as to all remaining defendants. Nothing prohibits the trial court from
entertaining summary judgment motions as to this claim under the negligence
standard on remand. 12
CONCLUSION
We affirm the trial court’s denial of the Estate’s motion to disqualify the
judge. We affirm the trial court’s denial of the Estate’s motion to continue the
defendants’ partial summary judgment motion to allow for additional discovery
under CR 56(f).
As discussed supra at pp.19-25, we reverse in part and affirm in part the
trial court’s denial of the Estate’s motion under the deadman’s statute to strike
the challenged statements in the experts’ opinions. We affirm the trial court’s
partial summary judgment order ruling that the gross negligence standard under
former RCW 71.05.120(1) applies to the healthcare providers who treated Velez
in the emergency department. We also affirm the dismissal of all claims against
the healthcare providers relating to the decision to release Velez after evaluating
him for suicidal ideation.
12
Defendant MCAMC conceded below that it is vicariously liable for the conduct
of its employees and defendant Cascade Emergency Physicians (CEP) conceded below
it is vicariously liable as to its employee Dr. Neely. Thus, to the extent the claims against
the individual providers are dismissed or reversed, so too are claims of vicarious liability
against MCAMC and CEP.
36
No. 83152-6-I/37
We affirm the trial court’s dismissal of all claims against Wilkins, though we
recognize the court erred in applying the gross negligence standard to Wilkins and
further erred in denying the Estate’s motion to reconsider that ruling.
Because the record in this case establishes that consideration of a safety
plan was not part of the decision to release Velez after evaluating for suicidal
ideation, the Estate’s claim that the health providers did not provide appropriate
care and direction to Velez when he was released survives the court’s dismissal
of claims under the gross negligence standard. We reverse the dismissal of this
claim as to the healthcare providers. Because the parties did not litigate and the
court did not consider this claim under the correct standard, nothing prohibits the
trial court from entertaining summary judgment motions as to this claim under the
negligence standard on remand.
WE CONCUR:
37