noting gross negligence is substantially greater than, and thus distinct from, ordinary negligence
How later courts described this case
- noting gross negligence is substantially greater than, and thus distinct from, ordinary negligence
Written by the judges who cited it.
The opinion
Filed
Washington State
Court of Appeals
Division Two
March 19, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MICHELLE R. DALEN, No. 50391-3-II
Appellant,
PART PUBLISHED OPINION
v.
ST. JOHN MEDICAL CENTER, PEACE
HEALTH, MARC KRANZ, CASCADE
EMERGENCY ASSOCIATES, RAMONA
SHERMAN, N.P., SISTERS OF ST. JOSEPH
OF PEACE,
Respondents.
LOWER COLUMBIA MENTAL HEALTH,
Defendant.
MAXA, C.J. – Michelle Dalen appeals the trial court’s dismissal on summary judgment of
a lawsuit she filed against St. John Medical Center (SJMC), PeaceHealth, Dr. Marc Kranz,
Cascade Emergency Associates, Ramona Sherman, and Sisters of St. Joseph of Peace
(collectively, respondents1). Dalen asserted various claims relating to her treatment and
involuntary detention in the SJMC emergency department (ED) and her involuntary admission to
1
Dalen does not specify whether she claims that only some or all of the respondents are liable on
her various claims. Therefore, we will generically refer to all respondents regarding all claims
unless otherwise specified.
No. 50391-3-II
the SJMC psychiatric unit after she arrived at the ED complaining of a head injury following a
fall.
In the published portion of this opinion, we hold that the trial court erred in granting
summary judgment in favor of the respondents on (1) Dalen’s claim for violation of chapter
71.05 RCW regarding her initial detention and her continued detention in the ED pending an
evaluation by a designated crisis responder, and (2) Dalen’s claim for failure to obtain her
consent for medical treatment forced on her. However, we hold that the trial court did not err in
granting summary judgment in favor of the respondents on Dalen’s claim for violation of chapter
71.05 RCW based on her involuntary admission to the SJMC psychiatric unit.
In the unpublished portion of this opinion, we affirm the trial court’s grant of summary
judgment on Dalen’s remaining claims against all respondents and the grant of summary
judgment in favor of Dr. Kranz based on insufficient service of process, but we reverse the trial
court’s grant of summary judgment in favor of Cascade based on insufficient service of process.
Accordingly, we reverse the trial court’s summary judgment dismissal of Dalen’s claims
for violation of chapter 71.05 RCW regarding her involuntary detention in the ED, lack of
consent claims, and claims against Cascade, but we affirm the trial court’s dismissal of Dalen’s
remaining claims and all claims against Dr. Kranz.
FACTS
Detention in SJMC Emergency Department
On February 25, 2011, Dalen slipped on ice in front of her home and fell, hitting her head
on the pavement. In the following days she began to experience “odd emotional reactions,
unusual fatigue, delayed responses and confusion.” Clerk’s Papers (CP) at 46. Her father noted
that she was “talking funny.” CP at 46. Dalen and her family decided to go to the hospital.
2
No. 50391-3-II
On February 28, Dalen arrived at the SJMC ED, accompanied by her father, step-mother,
and sister. PeaceHealth operated SJMC. Cascade provided medical services in the SJMC ED.
Dr. Kranz was an emergency department doctor and an employee of Cascade. Sherman was
employed by PeaceHealth as a psychiatric nurse practitioner.
Dalen and her sister, Kristin Wallace, explained to the ED receptionist that Dalen had
fallen and hit her head. Dalen and Wallace were taken to see a triage nurse at 1:39 PM. The
triage nurse listed Dalen’s chief complaint as “delusions.” CP at 67. The nurse stated that Dalen
was alert but disoriented, and obeyed commands. For history, the nurse recorded that Dalen had
been confused and admitted to having hallucinations since the onset two days before. Although
the record is unclear, the parties appear to agree that the triage nurse recommended admission for
psychiatric treatment and Dalen declined admission.
At this point, two security guards forcibly grabbed Dalen and took her to a back room
while she screamed for her father. The hospital records state that security carried Dalen to a
room and that she was “screaming while going down [the] hall.” CP at 64. The guards took
Dalen by force to a room, where she was forcibly disrobed and placed in a hospital gown. She
then was restrained while hospital staff drew blood without attempting to obtain her consent.
Dalen was secluded in her room with security present.
The physical assessment in the medical records stated that Dalen was anxious and
confused, although her speech was within normal limits. A nursed stated that Dalen’s
“[b]ehavior appears abnormal, including paranoid behaviors and having apparent auditory
hallucinations.” CP at 64. She yelled, “[S]top screaming in my head.” CP at 64. Dalen
apparently was seen by Dr. Kranz. However, the record does not reflect whether Dr. Kranz
3
No. 50391-3-II
evaluated Dalen at that time or determined that she should continue to be detained. Wallace
asserted that she told a doctor that Dalen had fallen and hit her head.
Lisa Lovingfoss, a social worker, evaluated Dalen at approximately 2:46 PM. Lovingfoss
noted that Dalen’s speech was confused and reported that Dalen was unable to maintain attention
to answer questions. Lovingfoss also spoke with Wallace, noting that Wallace stated that
Dalen’s family had been concerned about her since the previous day as she exhibited “very odd
behavior and continuously spoke, but did not make any sense.” CP at 65. However, the record
does not reflect whether Lovingfoss determined that Dalen should continue to be detained.
Wallace asserted that she told a social worker that Dalen had fallen and hit her head.
Dalen refused to give a urine sample voluntarily. As a result, she was forcibly
catheterized while four men restrained her. The hospital note stated that security and three other
staff assisted in holding Dalen. Dalen’s legs were spread and her gown was pulled up, exposing
most of her unclothed body to the men holding her. She remained confined to the treatment
room, supervised by SJMC staff and security. Dalen’s toxicology screen came back negative for
drugs.
The hospital notes state that Dalen was pacing the floor and staring into the hall with a
“wild, paranoid gaze.” CP at 65. A nurse recorded that Dalen stated, “I know you from a dream,
you are a doctor’s wife. You have a big belly. You look like a Disney ride.” CP at 65. Dalen
then pressed her face into the window and kissed the glass. Dr. Kranz later reported that it was
possible that Dalen was manic and psychotic or maybe just psychotic, and noted her “bizarre and
erratic behavior.” CP at 67.
At some point, Dalen was forcibly administered Geodon, a drug commonly used for
schizophrenia and bipolar disorder.
4
No. 50391-3-II
Involuntary Admission to Psychiatric Unit
At some unknown time, the ED medical staff requested that Dalen be evaluated for grave
disability and possible hospitalization. At approximately 3:50 PM, Bobbi Woodford, a county
designated mental health professional from Lower Columbia Mental Health, evaluated Dalen.
Woodford stated that Dalen “presented as confused, guarded, and disoriented, with
impaired memory, insight, and judgment.” CP at 281. Dalen’s “hallucinations were both visual
and auditory” and she “was unable to separate/differentiate between her dreams and reality.” CP
at 282. Woodford concluded that “[a]t this time, it is evident that [Dalen] suffers from a mental
disorder, which renders her gravely disabled.” CP at 282. She stated that “no less restrictive
alternatives to involuntary treatment . . . will protect [Dalen’s] best interests.” CP at 286.
Later that day, Woodford prepared a petition for initial detention of Dalen under chapter
71.05 RCW. She certified, “As a result of my personal observation or investigation, I believe the
actions of [Dalen] constitute a likelihood of serious harm to [Dalen], others, or to the property of
others, or that the respondent is gravely disabled.” CP at 280. Woodford requested that Dalen
be detained at an evaluation and treatment facility for no more than 72 hours. Woodford directed
that Dalen be taken into custody and placed at SJMC.
Dalen was involuntarily admitted to the SJMC psychiatric unit. She remained
involuntarily hospitalized from February 28 until March 2. Her request on March 1 to be
released was denied.
Two years later, a doctor rendered an opinion that Dalen had suffered a “mild traumatic
brain injury with residual post concussion syndrome.” CP at 108. A subsequent
neuropsychological examination revealed lingering effects of a traumatic brain injury.
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No. 50391-3-II
Dalen’s Complaint and Summary Judgment
On February 26, 2014, Dalen, representing herself, filed a lawsuit against the respondents
as well as Lower Columbia Mental Health.2 The complaint included 10 causes of action,
including violation of chapter 71.05 RCW and failure to obtain informed consent.
The respondents filed a summary judgment motion regarding each of Dalen’s claims. In
support of the motion, the respondents submitted a declaration attaching certain materials that
apparently were filed under seal. But those materials are not in the appellate record. The
respondents did not file declarations from Dr. Kranz or any other medical providers regarding
Dalen’s detention.
In response, Dalen submitted three declarations from herself, portions of her medical
records, a copy of a newspaper article written about her involuntary commitment and Dr.
Kranz’s related comments, and several other declarations. These submittals included
declarations from two experts, Lisa Taylor, a registered nurse, and Janet Hart Mott, Ph.D.
The trial court granted the motion and dismissed all of Dalen’s claims against the
respondents. Dalen appeals the trial court’s summary judgment order.
ANALYSIS
A. SUMMARY JUDGMENT STANDARD
We review dismissal on summary judgment de novo. Frausto v. Yakima HMA, LLC, 188
Wn.2d 227, 231, 393 P.3d 776 (2017). We review all evidence and reasonable inferences in the
light most favorable to the nonmoving party. Keck v. Collins, 184 Wn.2d 358, 368, 357 P.3d
2
In August 2016, Lower Columbia Mental Health filed a motion to dismiss all claims against it.
The trial court apparently granted this motion. Lower Columbia Mental Health is not a party to
this appeal.
6
No. 50391-3-II
1080 (2015). We may affirm an order granting summary judgment if there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c);
Zonnebloem, LLC v. Blue Bay Holdings, LLC, 200 Wn. App. 178, 182, 401 P.3d 468 (2017).
There is a genuine issue of material fact when reasonable minds could differ on the controlling
facts controlling the outcome of the litigation. Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn.
App. 859, 864-65, 324 P.3d 763 (2014).
The party moving for summary judgment has the initial burden to show there is no
genuine issue of material fact. Zonnebloem, 200 Wn. App. at 183. A moving defendant can
meet this burden by showing that there is an absence of evidence to support the plaintiff’s claim.
Id. Once the defendant has made such a showing, the burden shifts to the plaintiff to present
specific facts that show a genuine issue of material fact. Id. Summary judgment is appropriate if
a plaintiff fails to show sufficient evidence to establish the existence of an element on which he
or she will have the burden of proof at trial. Lake Chelan Shores Homeowners Ass’n v. St. Paul
Fire & Marine Ins. Co., 176 Wn. App. 168, 179, 313 P.3d 408 (2013).
B. VIOLATION OF INVOLUNTARY COMMITMENT STATUTE
Dalen argues that the trial court erred in granting summary judgment on her claims for
violation of chapter 71.05 RCW, which were based on her initial detention at triage, her
continued detention in the ED until she could be evaluated by a crisis responder, and her
involuntary admission to the SJMC psychiatric unit. We hold that genuine issues of fact exist
regarding whether the respondents’ initial detention of Dalen and their continued detention until
she could be evaluated by a crisis responder violated RCW 71.05.050 and whether the
respondents are entitled to immunity. But we affirm the trial court’s granting summary judgment
on Dalen’s claim based on her involuntary admission to the SJMC psychiatric unit.
7
No. 50391-3-II
1. Legal Principles
a. Detention of Persons with Mental Disorders
As relevant here, chapter 71.05 RCW3 governs the involuntary detention of persons with
mental disorders. Under certain circumstances, a hospital emergency department can
temporarily detain a person for further evaluation. RCW 71.05.050. Following the evaluation,
the person may be involuntarily admitted to an evaluation and treatment facility for up to 72
hours. RCW 71.05.153.
Under RCW 71.05.050(3), a person brought to a hospital emergency department for
“observation and treatment” can be involuntarily detained if he or she refuses voluntary
admission and “the professional staff of the . . . hospital regard such person [1] as presenting as a
result of a mental disorder . . . an imminent likelihood of serious harm, or [2] as presenting an
imminent danger because of grave disability.” The purpose of this detention is to notify the
designated crisis responder4 of such person’s condition to enable the designated crisis responder
to authorize further detention. RCW 71.05.050(3). This initial detention can be for no more than
six hours. RCW 71.05.050(3).
In In re Detention of C.W., the Supreme Court explained that under former RCW
71.05.050 (1998), three events must occur before the hospital staff may refer a person to the
designated crisis responder:
First, a person must be brought to the hospital or agency for “observation or
treatment.” Second, the person must refuse voluntary admission. Third, the
3
Several sections of chapter 71.05 RCW have been amended since Dalen’s detention: RCW
71.05.020, RCW 71.05.050, RCW 71.05.120, and RCW 71.05.153. The amendments to RCW
71.05.050 include dividing the provision into subsections. Because these amendments are not
relevant here, we refer to the current versions of the statute unless otherwise indicated.
4
At the time of Dalen’s detention, the designated crisis responder was referred to as the county
designated mental health professional (CDMHP). Former RCW 71.05.050 (2000).
8
No. 50391-3-II
professional staff must “regard” the person as “presenting as a result of a mental
disorder an imminent likelihood of serious harm, or as presenting an imminent
danger because of grave disability.”
147 Wn.2d 259, 272, 53 P.3d 979 (2002) (quoting former RCW 71.05.050). Once these
conditions are met, hospital staff may detain a person for no more than six hours to allow the
crisis responder’s evaluation. Id.
“Imminent” is defined as “the state or condition of being likely to occur at any moment or
near at hand, rather than distant or remote.” RCW 71.05.020(26).5 “Likelihood of serious harm”
means:
(a) A substantial risk that: (i) Physical harm will be inflicted by a person upon his
or her own person, as evidenced by threats or attempts to commit suicide or inflict
physical harm on oneself; (ii) physical harm will be inflicted by a person upon
another, as evidenced by behavior which has caused such harm or which places
another person or persons in reasonable fear of sustaining such harm; or (iii)
physical harm will be inflicted by a person upon the property of others, as evidenced
by behavior which has caused substantial loss or damage to the property of others;
or
(b) The person has threatened the physical safety of another and has a history of
one or more violent acts.
RCW 71.05.020(35).6
“Gravely disabled” is defined as
a condition in which a person, as a result of a mental disorder, or as a result of the
use of alcohol or other psychoactive chemicals: (a) Is in danger of serious physical
harm resulting from a failure to provide for his or her essential human needs of
health or safety; or (b) manifests severe deterioration in routine functioning
evidenced by repeated and escalating loss of cognitive or volitional control over his
or her actions and is not receiving such care as is essential for his or her health or
safety.
5
The former version of this provision in effect when Dalen was detained was found in RCW
71.05.020(20) (2009).
6
The former version of this provision in effect when Dalen was detained was found in RCW
71.05.020(25).
9
No. 50391-3-II
RCW 71.05.020(22).7 See generally In re LaBelle, 107 Wn.2d 196, 205-08, 728 P.2d 138
(1986).
Under RCW 71.05.153(1), when the designated crisis responder receives an allegation
that a person “as the result of a mental disorder, presents an imminent likelihood of serious harm,
or is in imminent danger because of being gravely disabled” and confirms the allegation after
investigation and evaluation, the crisis responder can order such person to be taken into
emergency custody in an evaluation and treatment facility for not more than 72 hours.
b. Health Care Provider Immunity
RCW 71.05.120(1) provides criminal and civil immunity to providers of mental health
care “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.”
Bad faith requires a conscious doing of wrong, through “tainted or fraudulent motives.”
Spencer v. King County, 39 Wn. App. 201, 208, 692 P.2d 874 (1984), overruled on other
grounds by Frost v. City of Walla Walla, 106 Wn.2d 669, 724 P.2d 1017 (1986). Gross
negligence is “substantially and appreciably greater than ordinary negligence.” Estate of Davis
v. Dep’t of Corr., 127 Wn. App. 833, 840, 113 P.3d 487 (2005). 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.” Harper v. Dep’t of Corr., 192
7
The former version of this provision in effect when Dalen was detained was found in RCW
71.05.020(17).
10
No. 50391-3-II
Wn.2d 328, 343, 429 P.3d 1071 (2018). An incomplete or even unreasonable assessment under
chapter 71.05 RCW does not necessarily rise to the level of gross negligence under RCW
71.05.120. See Davis, 127 Wn. App. at 841.
2. Detention at Triage
Dalen argues that genuine issues of fact exist whether the respondents violated RCW
71.05.050(3) by involuntarily detaining her at triage and whether that detention was done with
bad faith or gross negligence to negate statutory immunity. We agree based on the limited
record presented at summary judgment.
a. Violation of RCW 71.05.050(3)
Dalen argues that there is a question of fact as to whether SJMC violated RCW
71.05.050(3) by involuntarily detaining her at triage before professional staff determined that she
presented an imminent likelihood of serious harm or an imminent danger because of grave
disability. Under certain circumstances, RCW 71.05.050(3) allows initial detention of a person
with a mental disorder until hospital staff can evaluate that person. However, we hold on the
record here that a genuine issue of fact exists as to whether the triage nurse had justification for
initially detaining Dalen.
As noted above, RCW 71.05.050 allows a hospital emergency department to detain a
person for up to six hours if the person refuses voluntary admission and after hospital staff
determines that a person presents because of a mental disorder an imminent likelihood of serious
harm or an imminent danger because of grave disability. However, the statute is silent as to
whether a hospital can initially detain a person to allow hospital staff to make such a
determination.
11
No. 50391-3-II
In C.W., the Supreme Court addressed whether the six hour detention limit in RCW
71.05.050 started when the person was first detained or when hospital staff determined that
referral to the designated crisis responder was appropriate. 147 Wn.2d at 271-76. The court
concluded that under the plain statutory language, the time limit started when hospital staff
determined that a designated crisis responder evaluation was necessary. Id. at 272-73.
The court essentially assumed that a hospital emergency department could detain a
person with a mental disorder until hospital staff had time to make that determination. Id. at
273-76. The court stated,
The plain language of the statute anticipates that the professional staff will need a
period of time to examine a person in order to determine whether the person suffers
from a mental disorder that is likely to cause “imminent likelihood of serious harm”
or “imminent danger because of grave disability,” whether he or she will refuse
voluntary admission, and whether further custody is necessary.
Id. at 273 (quoting RCW 71.05.050). And the court noted, without questioning the procedure,
that persons who present with psychiatric symptoms often are restrained before being fully
evaluated. Id. at 273; see also 273 n.11.
The court rejected the argument that what it termed “predetention restraint” was
inconsistent with chapter 71.05 RCW. Id. at 274-76. The court stated, “RCW 71.05.050 does
allow for such a period of restraint, if necessary, to evaluate the person to determine whether he
or she meets the statutory requirements for notifying the CDMHP [county designated mental
health professional].” Id. at 276.8
8
In her reply brief, Dalen criticizes the holding in C.W. and quotes extensively from the dissent
in that case. She apparently claims that C.W. was wrongly decided and, as the dissent in that
case argues, that there is no legal basis for an initial detention. However, we disagree. And we
are bound to follow Supreme Court precedent. Gorman v. Pierce County, 176 Wn. App. 63, 76,
307 P.3d 795 (2013).
12
No. 50391-3-II
A contrary interpretation of RCW 71.05.050 would be illogical because one of the
requirements of that statute is that the person with a mental disorder must refuse voluntary
admission. If a hospital emergency department could not initially detain a person who refused
admission, hospital staff would never have the ability to evaluate the person to determine if
referral to a designated crisis responder was necessary and RCW 71.05.050 would be
meaningless.
Neither RCW 71.05.050 nor the court in C.W. discuss the circumstances in which a
hospital can initially detain a person pending a hospital staff evaluation. We hold that RCW
71.05.050 authorized SJMC to initially detain Dalen until hospital staff had the opportunity to
evaluate her only if it had some legitimate basis grounded in the requirements of RCW 71.05.050
to involuntarily detain her at triage. The person authorizing the initial detention must at least
have a reasonable suspicion that hospital staff would determine after an evaluation that the
patient presented an imminent likelihood of serious harm or an imminent danger because of
grave disability as required for detention under RCW 71.05.050(3).
Here, Dalen told the receptionist that she had fallen and hit her head. The triage notes
state that Dalen’s chief complaint was delusions and that her verbal response was confused, but
that she was alert and that she obeyed commands. The only history in the record was, “The
patient has been confused. Admits to having hallucinations.” CP at 64. Significantly, the
hospital records do not state any facts that would lead to a conclusion that Dalen presented an
imminent likelihood of serious harm or an imminent danger because of grave disability. And the
record does not contain a declaration or testimony from the triage nurse to explain why she
believed that involuntary detention was necessary.
13
No. 50391-3-II
Nothing in the sparse summary judgment record shows any basis for the triage nurse to
suspect that Dalen presented an imminent likelihood of serious harm or an imminent danger
because of grave disability when she arrived at triage. The respondents suggest that we can infer
from Dalen’s behavior after she was involuntarily detained that the triage nurse was justified in
detaining her. But when reviewing a summary judgment order, we are required to accept
inferences that favor the nonmoving party, not inferences that favor the moving party.
We hold that a genuine issue of material fact exists as to whether the respondents violated
RCW 71.05.050(3) by initially detaining Dalen.
b. Statutory Immunity
The respondents argue that even if they violated RCW 71.05.050 by initially detaining
Dalen, they are entitled to immunity under RCW 71.05.120(1). A provider of mental health care
is immune from civil liability with regard to the decision of whether to detain a person for
evaluation and treatment if the provider’s duties were “performed in good faith and without gross
negligence.” RCW 71.05.120(1).
There is no evidence of bad faith here. But regarding gross negligence, the triage nurse
involuntarily detained Dalen based on a report of a fall-related head injury and nothing in the
summary judgment record showed any basis for her to suspect that Dalen presented an imminent
likelihood of serious harm or an imminent danger because of grave disability. Again, the record
contains no testimony from the triage nurse or any other evidence to explain why Dalen was
detained. Under the sparse facts here, we hold that there is a genuine issue of fact whether the
respondents were grossly negligent in initially detaining Dalen.
14
No. 50391-3-II
3. Detention before Designated Crisis Responder Evaluation
Dalen argues that genuine issues of fact exist whether her continued detention until the
Woodford evaluation violated RCW 71.05.050(3) and whether that detention was done with bad
faith or gross negligence to negate statutory immunity. We agree based on the limited summary
judgment record.
a. Violation of RCW 71.05.050(3)
Dalen claims that there is a question of fact as to whether the respondents violated RCW
71.05.050(3) because she did not present an imminent likelihood of serious harm or an imminent
danger because of grave disability as required for continued detention pending the Woodford
evaluation.
The respondents point to Dalen’s abnormal behavior as documented in the medical
records. Dalen admitted to having hallucinations. She showed paranoid behaviors and auditory
hallucinations, and yelled, “[S]top screaming in my head.” CP at 64. Her speech was
incomprehensible. The social worker and nurses observed very odd comments and behavior.
Dr. Kranz reported bizarre and erratic behavior. And the respondents emphasize that Woodford
found that Dalen was gravely disabled.
However, nothing in the sparse summary judgment record shows that hospital staff ever
made the threshold determination required by RCW 71.05.050(3) to detain Dalen pending
evaluation by the designated crisis responder. Specifically, the record does not show that Dr.
Kranz or any other hospital staff member ever made the determination that Dalen presented an
imminent likelihood of serious harm or an imminent danger because of grave disability as
required for detention under RCW 71.05.050. Nothing in the record explains the decision to
detain Dalen. Significantly, the record does not contain any declaration or testimony from Dr.
15
No. 50391-3-II
Kranz or anyone else stating that they had made the required determination that Dalen presented
an imminent likelihood of serious harm or an imminent danger because of grave disability.
Based on the absence of evidence, we must infer for summary judgment purposes that the
respondents never determined that Dalen presented an imminent likelihood of serious harm or an
imminent danger because of grave disability as required to detain her under RCW 71.05.050(3).
As a result, we hold that genuine issues of material fact exist as to whether the respondents
violated RCW 71.05.050(3) by continuing to detain Dalen pending the Woodford evaluation.
b. Statutory Immunity
The respondents argue that even if they violated RCW 71.05.050(3) by continuing to
detain Dalen pending the Woodford evaluation, they are entitled to immunity under RCW
71.05.120(1). As noted above, a provider of mental health care is immune from civil liability
with regard to the decision of whether to detain a person for evaluation and treatment if the
provider’s duties were “performed in good faith and without gross negligence.” RCW
71.05.120(1).
There is no evidence of bad faith here. But regarding gross negligence, the respondents
continued to involuntarily detain Dalen even though there is no showing in the record that the
respondents ever evaluated Dalen to determine whether she presented an imminent likelihood of
serious harm or an imminent danger because of grave disability as required under RCW
71.05.050. Again, the record contains no testimony from Dr. Kranz or any other evidence to
explain why Dalen was detained. Under the sparse evidence presented here, we hold that there is
a genuine issue of fact whether the respondents were grossly negligent in continuing to detain
Dalen pending the Woodford evaluation.
16
No. 50391-3-II
4. 72-Hour Detention
Dalen appears to challenge her 72-hour detention ordered by Woodford on the same
grounds that she challenges her detention in the ED. In addition, she argues that she was not
allowed to have an attorney or family member present at Woodford’s evaluation in violation of
former RCW 71.05.150 (2007).
However, Woodford was employed by Lower Columbia Mental Health, which was
dismissed on summary judgment and is not a party to this appeal. Dalen has presented no
evidence that SJMC or any other respondent was responsible for Woodford’s decision to
involuntarily admit her to the SJMC psychiatric unit. Therefore, we reject Dalen’s claims to the
extent that they relate to her 72-hour detention.
5. Summary
The limited summary judgment record reflects genuine issues of material fact as to
whether the respondents violated RCW 71.05.050(3) by initially detaining Dalen at triage and
then continuing to detain her in the ED pending Woodford’s evaluation. And the summary
judgment record reflects a genuine issue of material fact as to whether the respondents acted with
gross negligence to negate immunity under RCW 71.05.120(1). Therefore, we hold that the trial
court erred in granting summary judgment in favor of the respondents on Dalen’s claims for
violation of RCW 71.05.050(3) based on the initial detention and the continued detention, but
not based on the 72-hour detention.
C. LACK OF INFORMED CONSENT
Dalen argues that the trial court erred in dismissing her lack of consent claim because she
did not consent to treatment forced upon her and because the respondents failed to establish
17
No. 50391-3-II
implied consent in an emergency situation under RCW 7.70.050(4) or that they were entitled to
immunity under RCW 18.71.220 for providing emergency medical services. We agree.
1. Legal Principles
The medical malpractice statute authorizes a cause of action for injury resulting “from
health care to which the patient or his or her representative did not consent.” RCW 7.70.030(3).
RCW 7.70.050(1) states the elements of a claim for lack of informed consent. But Dalen alleges
that she did not consent at all to the treatment forced upon her during her detention in the ED.
RCW 7.70.050(4) provides that consent can be implied in certain emergency situations.
“If a recognized health care emergency exists and the patient is not legally competent to give an
informed consent and/or a person legally authorized to consent on behalf of the patient is not
readily available, his or her consent to required treatment will be implied.” RCW 7.70.050(4).
For purposes of giving consent for health care pursuant to RCW 7.70.050, an
“incompetent” person is “(i) incompetent by reason of mental illness, developmental disability,
senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of either
managing his or her property or caring for himself or herself, or both, or (ii) incapacitated as
defined in (a), (b), or (d) of this subsection.” RCW 11.88.010(1)(e). If a patient is not
competent, persons authorized to consent on behalf of the patient include the patient’s parents
and adult siblings. RCW 7.70.065(1)(a)(v)-(vi).
RCW 18.71.220 provides immunity to health care providers for failure to obtain consent
when providing emergency medical services.
No physician or hospital licensed in this state shall be subject to civil liability, based
solely upon failure to obtain consent in rendering emergency medical, surgical,
hospital, or health services to any individual . . . where [the] patient is unable to
give his or her consent for any reason and there is no other person reasonably
available who is legally authorized to consent to the providing of such care:
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No. 50391-3-II
PROVIDED, That such physician or hospital has acted in good faith and without
knowledge of facts negating consent.
RCW 18.71.220.
2. Failure to Obtain Consent
Dalen does not expressly identify all the treatment for which she alleges the respondents
failed to obtain consent. However, three actions in the ED clearly fall into this category: the
blood draw, the catheterization, and the administering of medication.
Regarding the blood draw, Dalen stated that she was “forcibly restrained while staff drew
blood with no attempt to gain consent.” CP at 48. Regarding the catheterization, Dalen
described being “forcibly catheterized” while being held down after begging to be allowed to
urinate on her own. CP at 48-49. This testimony at least creates genuine issues of fact whether
the respondents obtained consent for these procedures.
Regarding the administering of medication, Dalen stated that she was “forcibly drugged
intravenously.” CP at 49. Dalen did not expressly state that she did not consent to receiving this
medication. But viewed in the light most favorable to her, the fact that the medication was given
“forcibly” is sufficient to create a genuine issue of material fact regarding her consent.
3. Implied Consent Under RCW 7.70.050(4)
Under RCW 7.70.050(4), consent can be implied if (1) “a recognized health care
emergency exists,” (2) “the patient is not legally competent to give informed consent,” and/or (3)
“a person legally authorized to consent on behalf of the patient is not readily available.” Under
RCW 7.70.050(4), “consent is implied by law in view of the existence of a recognized health
care emergency and the impracticality of obtaining informed consent in such circumstances.”
Stewart-Graves v. Vaughn, 162 Wn.2d 115, 126, 170 P.3d 1151 (2007).
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No. 50391-3-II
First, Dalen argues that it is not clear that any medical emergency actually existed in her
case. “The existence of a medical emergency is ordinarily a factual question for the jury.”
Stewart-Graves, 162 Wn.2d at 124. Here, Dalen arrived at the ED approximately two days after
her injury and had been experiencing symptoms of varying degrees of severity throughout that
time. Although her mood, emotions, behavior, and cognitive function all were affected by her
injury, there was no evidence to suggest that she presented a medical emergency. A genuine
issue of fact exists regarding this issue.
Second, Dalen argues that respondents did not establish that she was not competent to
consent to treatment herself. Here, Dalen may not have been competent to consent to treatment
due to her confusion, disorientation, inability to maintain attention, paranoia, and hallucinations.
However, there also is evidence that Dalen was alert and responsive to questions, at least early in
her ED visit. A genuine issue of fact exists regarding this issue.
Third, Dalen argues that, even if there was an emergency during which she was not
competent to give consent, the respondents still were obligated under RCW 7.70.050(4) to obtain
consent from a person legally authorized to consent on her behalf if such a person was available.
Parents and adult siblings of the patient are so authorized. RCW 7.70.065(1)(a). Both Dalen’s
sister and her father were present with her in the ED, but neither were asked to consent to the
care Dalen received. A genuine issue of fact exists regarding this issue.
We hold that RCW 7.70.050(4) does not support summary judgment in favor of the
respondents on Dalen’s lack of consent claim because genuine issues of material fact exist
regarding all three statutory requirements.
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No. 50391-3-II
4. Immunity Under RCW 18.71.220
Under RCW 18.71.220, there is no civil liability solely for failure to obtain consent if (1)
the physician or hospital renders “emergency medical, surgical, hospital, or health services,” (2)
“[the] patient is unable to give his or her consent for any reason,” and (3) “there is no other
person reasonably available who is legally authorized to consent to the providing of such care.”
These three requirements are similar to the RCW 7.70.050(4) requirements. In addition, the
physician or hospital must have “acted in good faith and without knowledge of facts negating
consent.” RCW 18.71.220.
The analysis under RCW 7.70.050(4) applies equally to RCW 18.71.220. As discussed
above, there are genuine issues of fact whether an emergency existed, whether Dalen was able to
give consent, and whether Dalen’s father and adult sister, who were legally authorized to give
consent, were reasonably available. In addition, there is a genuine issue of fact whether the
respondents acted without knowledge of facts negating consent. Therefore, we hold that the
application of RCW 18.71.220 does not support summary judgment in favor of the respondents
on Dalen’s lack of consent claim.
5. Consent Requirement after Involuntary Detention
The respondents suggest that consent was not required for necessary treatment once a
person is involuntarily detained under former RCW 71.05.050(3). However, we hold above that
genuine issues of fact exist as to whether Dalen was lawfully detained under RCW 71.05.050(3).
Therefore, we do not address this issue.
6. Summary
Questions of fact exist whether the respondents failed to obtain consent from Dalen
before providing certain treatment, whether consent can be implied under RCW 7.70.050(4), and
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No. 50391-3-II
whether the respondents are entitled to immunity under RCW 18.71.220. Accordingly, we hold
that the trial court erred in granting summary judgment in favor of the respondents on Dalen’s
lack of consent claim.
CONCLUSION
We reverse the trial court’s summary judgment dismissal of Dalen’s claims for violation
of RCW 71.05.050(3) regarding her involuntary detention in the ED, her lack of consent claims,
and her claims against Cascade, but we affirm the trial court’s dismissal of Dalen’s remaining
claims and all claims against Dr. Kranz.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2.06.040, it is so ordered.
In the unpublished portion of this opinion, we hold that (1) the trial court did not err in
granting summary judgment on Dalen’s medical malpractice claim for negligent diagnosis and
treatment of her head injury because Dalen’s expert witnesses were not qualified to testify about
the applicable standard of care or the breach of that standard of care; (2) the trial court did not err
in granting summary judgment on Dalen’s emotional distress claims because she did not plead or
argue that those claims related to conduct that occurred after the involuntary commitment; and
(3) the trial court did not err in granting summary judgment in favor of Dr. Kranz on all claims
because the service of process on him was insufficient, but the court did err in granting summary
judgment in favor of Cascade because a genuine issue of fact existed as to whether the person
served had authority to accept service on behalf of Cascade.
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No. 50391-3-II
ADDITIONAL FACTS
In December 2012, a local newspaper published a lengthy article about Dalen’s
involuntary admission to SJMC. A person with a user name associated with Dr. Kranz posted an
online comment about the article, which stated in part, “I have over 20 years of experience with
taking care of people with head injuries and have never seen a head injury cause delusions or
hallucinations. I have seen mental illness and street drugs cause these symptoms. She was taken
care of and kept safe and should be thankful.” CP at 92.
In her complaint, Dalen among other claims alleged medical malpractice, negligent
infliction of emotional distress, intentional infliction of emotional distress, and outrage.
On May 19, 2014, Dalen had the summons and complaint served on an assistant at the
risk management department of PeaceHealth. Dalen’s process server attested in her affidavit of
service that Kelly Dombrowsky, a PeaceHealth risk management assistant, affirmed that she was
“the acting agent able to accept service” for all of the respondents. CP at 291. Dalen never
personally served Dr. Kranz or Cascade. Both first received notice of the lawsuit in January
2016.
The respondents submitted a declaration from Daniel Huhta, a PeaceHealth risk
management employee, stating that PeaceHealth was at no time authorized to accept service for
Dr. Kranz or Cascade.
The trial court dismissed all these claims on summary judgment.
ANALYSIS
A. MEDICAL MALPRACTICE CLAIM
Dalen argues that the trial court erred in dismissing her medical malpractice claim based
on RCW 7.70.030(1) because the expert testimony she presented created a genuine issue of fact
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No. 50391-3-II
regarding whether the respondents breached the standard of care in diagnosing and treating her
head injury. We disagree.
1. Legal Background
Chapter 7.70 RCW modified “certain substantive and procedural aspects of all civil
actions and causes of action, whether based on tort, contract, or otherwise, for damages for injury
occurring as a result of health care.” RCW 7.70.010. The definition of “health care provider” in
RCW 7.70.020 includes physicians, nurses, psychologists, and nurse practitioners. Chapter 7.70
RCW exclusively governs any action for damages based on an injury resulting from health care.
Fast v. Kennewick Pub. Hosp. Dist., 187 Wn.2d 27, 34, 384 P.3d 232 (2016).
One of the grounds for recovering damages for “injury occurring as the result of health
care” is “[t]hat injury resulted from the failure of a health care provider to follow the accepted
standard of care.” RCW 7.70.030(1).
For a damages claim based on a health care provider’s failure to follow the accepted
standard of care under RCW 7.70.030(1), a plaintiff must prove both that the health care provider
“failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health
care provider” and that such failure was a proximate cause of the plaintiff’s injuries. RCW
7.70.040. The applicable standard of care generally must be established by expert testimony.
Reyes v. Yakima Health Dist., 191 Wn.2d 79, 86, 419 P.3d 819 (2018). The expert testimony
must establish what a reasonable medical provider would or would not have done under the
circumstances, that the defendant failed to act in that manner, and that this failure caused the
plaintiff’s injuries. Keck, 184 Wn.2d at 371. If the plaintiff lacks expert testimony regarding one
of the required elements, the defendant is entitled to summary judgment on liability. Reyes, 191
Wn.2d at 86.
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No. 50391-3-II
2. Analysis
The question here is whether Dalen presented qualified expert testimony on the standard
of care and breach that created genuine issues of fact.
The admissibility of an expert’s testimony is not based on his or her professional title, but
instead on the scope of the expert’s knowledge. Hill v. Sacred Heart Med. Ctr., 143 Wn. App.
438, 447, 177 P.3d 1152 (2008). “A witness may testify as an expert if he or she possess
knowledge, skill, experience, training, or education that will assist the trier of fact.” Id. (citing
ER 702). ER 702 provides the trial court a mechanism to determine whether an expert opinion is
sufficient based on the qualifications of the expert and the statutory scope of that expert’s
authority and certification as a health care provider. See Frausto, 188 Wn.2d at 241.
Here, Taylor stated “I am a registered nurse, receiving a BSN in 1992. From 1993 to
2005 I worked with in-patient mental health care at the Portland Veterans Administration
Hospital.” CP at 57. Mott testified that “I am the Clinical Case Manager for the Brain Injury
Alliance of Washington. I have a Ph.D. in Rehabilitation. . . . My professional experience and
education have provided me with the opportunity to work with many individuals who sustained
brain injuries during my 52 year career as a rehabilitation counselor and case manager.” CP at
121-22.
Despite Taylor’s experience in mental health in-patient care and Mott’s experience in
brain injury rehabilitation, neither of them claimed to have any experience providing care in an
emergency department setting. Neither stated any reason why she was qualified to opine on the
standard of care for emergency department health care providers treating a patient presenting
with Dalen’s symptoms. Neither claimed to have any knowledge about emergency department
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No. 50391-3-II
triage, admission, or diagnostic procedures, or knowledge about how emergency department staff
determine whether a patient should be evaluated for possible involuntary commitment.
Accordingly, we hold that the trial court did not err in dismissing Dalen’s medical
negligence claim because she did not present qualified expert testimony regarding the standard
of care or the breach of the standard of care.9
B. EMOTIONAL DISTRESS CLAIMS
Dalen concedes that any intentional infliction of emotional distress, negligent infliction of
emotional distress, and outrage claims relating to her involuntary detention are subsumed in her
medical malpractice claim. But she argues the trial court erred in dismissing those claims
because they actually relate to the respondents’ conduct after her involuntary commitment. We
decline to consider this argument because Dalen did not assert this claim in the trial court or
present evidence to support the claim.
Under RAP 2.5(a), we may refuse to review any claim of error which was not raised in
the trial court. Dalen argues on appeal that her emotional distress claims actually arose from
respondents’ attempt to recover a $3,000 medical bill and Dr. Kranz’s comments in an online
newspaper forum responding to the newspaper article about Dalen’s involuntary admission.10
She claims that her complaint described the newspaper article published on her experience at
SJMC, which disclosed her private information without her consent, as well as Dr. Kranz’s
alleged inflammatory response.
9
Even if the experts were qualified, their testimony also failed to establish the relevant standard
of care, breach, and causation. Therefore, summary judgment on the medical malpractice claims
also was appropriate on that basis.
10
In her brief, Dalen also references “hateful things” that were said to her, apparently after her
hospitalization. However, she does not provide any citation to the record for this statement and
there is no evidence in the record to support this claim.
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No. 50391-3-II
Under CR 8(a), a complaint must contain “(1) a short and plain statement of the claim
showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which
the pleader deems the pleader is entitled.” This rule allows “notice pleading.” See Champagne
v. Thurston County, 163 Wn.2d 69, 84-85, 178 P.3d 936 (2008). However, the complaint still
must adequately inform the defendant of the nature of the plaintiff’s claims as well as the legal
grounds upon which those claims rest. Kirby v. City of Tacoma, 124 Wn. App. 454, 469-70, 98
P.3d 827 (2004).
Here, Dalen’s complaint alleged a series of facts about the events surrounding her
admission to SJMC, beginning with her arrival at the ED and concluding with her filing a
grievance with the hospital. Under her third and fourth causes of action for negligent and
intentional infliction of emotional distress, Dalen incorporated the facts she previously alleged
by reference, but made no mention under those headings of the newspaper article, Dr. Kranz’s
alleged online comments, other disparaging remarks directed against her post-hospitalization, or
the respondents’ medical bills.
Dalen did mention the comments responding to the newspaper article under her eighth
cause of action, “HIPAA Law Violation.” CP at 10. She alleged, “Following the publication of
the article, several private facts about the Plaintiff and Plaintiff’s condition were disclosed in the
public forum attached to the on-line [sic] publication of the article. . . . The private information
disclosed could only have been known by the Defendants or their agents.” CP at 10. Dalen
claims that these allegations in her complaint were sufficient to assert claims for emotional
distress relating the respondents’ conduct after her hospitalization. However, the trial court
dismissed Dalen’s HIPAA cause of action and Dalen does not challenge that ruling on appeal.
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No. 50391-3-II
Further, notice pleading under CR 8 does not allow plaintiffs to allege only the factual
basis in their pleading, leaving the plaintiff unrestricted as to any particular legal theory. See
Pac. Nw. Shooting Park Ass’n v. City of Sequim, 158 Wn.2d 342, 352, 144 P.3d 276 (2006). A
complaint is insufficient if it fails to give the defendant fair notice of the claims asserted. Id.; see
also Trask v. Butler, 123 Wn.2d 835, 846, 872 P.2d 1080 (1994). We conclude that the
complaint language was insufficient to assert an emotional distress claim related to the
respondents’ conduct after Dalen’s hospitalization.
Dalen also argues that she raised emotional distress claims not related to health care in
her response to the respondents’ summary judgment motion. Her response contained a heading
titled “Emotional Distress Claims.” CP at 53. But under that heading she argued that these
claims related to the respondents’ conduct in the hospital.
Dalen did raise the issue of Dr. Kranz’s alleged comment on the newspaper article in her
response, but did so under a “Facts” heading, where she argues “my HIPPA [sic] rights were
violated on December 22, 2012 when Marc Kranz spoke of my supposed delusions and
hallucinations noting his 20 years of experience treating head injuries . . . on the Daily News
public forum comments section.” CP at 52.
As in Dalen’s complaint, her response to the summary judgment motion contained no
link between her emotional distress claims and the alleged conduct of the respondents after
Dalen’s hospitalization. Instead, both her complaint and response to the motion linked her
emotional distress claims to events that occurred during her admission and hospitalization.
Accordingly, we hold that the trial court properly dismissed Dalen’s emotional distress
claims.
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No. 50391-3-II
C. INSUFFICIENT SERVICE OF PROCESS
Dalen argues that the trial court erred in dismissing her claims against Dr. Kranz and
Cascade because she presented a material issue of fact on whether they had been properly served.
We disagree with respect to service on Dr. Kranz, but agree with respect to Cascade.
Proper service of the summons and complaint is required to invoke personal jurisdiction.
Scanlan v. Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014). When a defendant challenges
service of process, the plaintiff has the initial burden of proof to establish the prima facie
elements of proper service. Id. The defendant then must show by clear and convincing evidence
that service was improper. Id.
In opposition to summary judgment, Dalen submitted an affidavit by her process server,
who stated that the PeaceHealth risk management employee who accepted service stated that she
was authorized to do so on behalf of all respondents. The respondents presented conflicting
evidence: Huhta’s declaration stating that PeaceHealth was not authorized to accept service for
Dr. Kranz or Cascade.
1. Dr. Kranz
RCW 4.28.080(16) governs personal service on an individual defendant and authorizes
service by delivering a copy of the summons to the defendant personally or “by leaving a copy of
the summons at the house of his or her usual abode with some person of suitable age and
discretion then resident therein.” Here, service was improper with respect to Dr. Kranz in his
individual capacity. Service was made on a PeaceHealth risk management employee, not on Dr.
Kranz personally. And the summons was not left with a resident of Dr. Kranz’s abode. And
there is no statutory provision that would allow a third person to accept service on behalf of an
individual defendant apart from the requirements of RCW 4.28.080(16).
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No. 50391-3-II
Therefore, regardless of what the risk management employee said, as a matter of law
service on her was insufficient to serve Dr. Kranz.
2. Cascade
Service on corporations is governed by RCW 4.28.080(9), which provides that service is
proper if a copy of the summons is delivered
to the president or other head of the company or corporation, the registered agent,
secretary, cashier or managing agent thereof or to the secretary, stenographer or
office assistant of the president or other head of the company or corporation,
registered agent, secretary, cashier or managing agent.
The Supreme Court has held that service upon a medical clinic’s administrative manager
was sufficient where the defendant surgical center’s registered agent worked at the clinic and the
administrative manager served as registered agent’s office assistant. Weber v. Associated
Surgeons, P.S., 166 Wn.2d 161, 164, 206 P.3d 671 (2009). Service was proper in that case even
though neither the registered agent nor his office assistant worked for the defendant surgical
center. Id.
Whether an individual is a “managing agent” of the corporation for purposes of accepting
service under RCW 4.28.080(9) is a “ ‘question [that] turns on the character of the agent, and, in
the absence of express authority given by the corporation, on a review of the surrounding facts
and the inferences which may properly be drawn therefrom.’ ” Reiner v. Pittsburg Des Moines
Corp., 101 Wn.2d 475, 477, 680 P.2d 55 (1984) (italics omitted) (quoting Crose v.
Wolkswagenwerk Aktiengesellschaft, 88 Wn.2d 50, 58, 558 P.2d 764 (1977)). A managing agent
of the corporation “is truly and thoroughly a representative of it, rather than a mere servant or
employee . . . and must be one having in fact representative capacity and derivative authority.”
Id. (italics omitted). Express authority to receive or accept service of process is not necessary.
Id.
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No. 50391-3-II
Here, the assistant who accepted service on behalf of Cascade affirmed to Dalen’s
process server that she was an acting agent who was authorized to accept service on Cascade’s
behalf. Unlike for an individual defendant, a plaintiff may be able to serve a corporate defendant
by delivering the summons to a third person. It is possible that the assistant was Cascade’s
registered agent or that Peacehealth was Cascade’s managing agent. Therefore, the assistant’s
statement was sufficient to create a genuine issue of fact regarding whether the assistant was
authorized to accept service on behalf of Cascade. Although Huhta’s declaration is inconsistent
with the assistant’s statement, we must view the evidence in the light most favorable to Dalen.
However, because “ ‘proper service of process is required for jurisdiction, sufficiency of
service of process is a question of law. As a result, the determination of valid service is reserved
to the judge.’ ” Harvey v. Obermeit, 163 Wn. App. 311, 327, 261 P.3d 671 (2011) (quoting
Gross v. Sunding, 139 Wn. App. 54, 67, 161 P.3d 380 (2007)). Therefore, the trial court must
make the factual determination regarding authority to accept service following an evidentiary
hearing and then determine as a matter of law whether that service was sufficient under RCW
4.28.080(9) or some other statutory provision.
Accordingly, we hold that the trial court erred in dismissing all Dalen’s claims against
Cascade based on insufficient service of process.
CONCLUSION
We reverse the trial court’s summary judgment dismissal of Dalen’s claims for violation
of RCW 71.05.050(3) regarding her involuntary detention in the ED, lack of consent claims, and
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No. 50391-3-II
claims against Cascade, but we affirm the trial court’s dismissal of Dalen’s remaining claims and
all claims against Dr. Kranz.
MAXA, C.J.
We concur:
JOHANSON, J.
LEE, J.
32