Berger v. SonnelandBerger v. Sonneland
Petitioner John Sonneland, M.D., seeks review of a decision by the Court of Appeals, Division Three, which reversed an order of summary judgment by the Spokane County Superior Court in his favor in an action by Respondent Suzan Berger for medical malpractice based upon his unauthorized disclosure of confidential information.1 We granted review. We reverse.
QUESTIONS PRESENTED
The questions presented in this case are (1) whether a cause of action for a physician‘s unauthorized disclosure of a patient‘s confidential information must be filed solely under the Uniform Health Care Information Act,
STATEMENT OF FACTS
On June 26, 1996 Respondent Suzan Berger filed a summons and complaint in the Spokane County Superior Court against Petitioner John Sonneland, M.D.,2 claiming (1) breach of confidentiality; (2) breach of fiduciary relationship; (3) breach of the Uniform Health Care Information Act,
On July 1, 1993 Respondent Berger consulted with Petitioner Sonneland, a physician, about her health problems.6 She complained of abdominal pain, chronic diarrhea, severe dumping syndrome, vomiting and a 40 pound weight loss.7 Her symptoms began at age 22 and at age 27 she had multiple surgeries.8 Petitioner Sonneland reported Respondent told him she was taking various drugs, including Tylox, a narcotic for pain.9 Respondent Berger disputes this fact.10 She stated she gave Petitioner a written release to contact her previous physician, Dr. Federic E. Eckhauser, at the University of Michigan Hospital, Ann Arbor, Michigan, to obtain her medical history, but did not list Dr. Hoheim, her former husband, as a past medical provider and did not give Petitioner permission to contact him. She said she told Petitioner her relationship with her former husband was strained.11
Petitioner telephoned Rеspondent‘s former husband and discussed with him her request for the narcotic prescription and her past use of prescription drugs.12 The former husband immediately filed a motion in a pending case in the Montana courts to modify the custodial plan for the couple‘s children, asserting that Respondent‘s medical condition and drug use justified modification.13 Respondent claims that as a result of Petitioner Sonneland‘s
On December 20, 1997 Petitioner Sonneland filed a motion for summary judgment.16 In a memorandum he claimed Respondent could not establish a prima facie case of medical negligence; her claim under the Uniform Health Care Information Act,
On June 23, 1998 Petitioner Sonneland filed a second motion for summary judgment.20 In a memorandum he claimed Respondent could not establish a prima facie case of medical negligence because she had not established and could not establish by medical testimony that Petitioner caused her claimed psychological or physical injuries.21 On July 15, 1998 Respondent filed a motion for summary judgment stating she was no longer claiming any medical or physical injury other than her emotional distress arising out of Petitioner‘s conduct.22
On July 2, 1998 Respondent Berger filed a motion to strike, as untimely, Petitioner‘s motion for summary judgment.23 On July 8, 1998 Petitioner Sonneland filed a response to the motion to strike and included a motion to “enlarge time for hearing dispositive motions.” He claimed “the alleged tardiness in the motion [was] due to plaintiff‘s lack of compliance with the court‘s scheduling order and not as a result of any act or omission by defendant.”24
On July 10, 1998 Judge Richard J. Schroeder, Spokane County Superior Court, signed an order which read:
II. FINDING
After reviewing the case record to date, and the basis for the motion, the court finds that: The motion should be denied.
III. ORDER
It is ordered that:
1. The motion to strike is Denied.
2. Defendant‘s Summary Motion will be heard on July 24, 1998.
3. Plaintiff‘s Response to the Summary Judgment Motion is due July 15, 1998.
Dated: 7/10/98
/s/ Richard J. Schroeder25 Judge
On January 14, 1998 Respondent Berger filed a declaration of Dr. Thomas R. McCormick, B. Th., M. Div., D. Min., a medical ethicist, who is Director of Counseling Services at the University of Washington School of Medicine, and who was identified as an expert witness to testify at trial.26 In his
On July 15, 1998 Respondent filed a response to Petitioner‘s motion for summary judgment, stating she had in fact presented a prima facie case inasmuch as medical testimony is not required to prove causation because she was claiming emotional distress and consequential damages in legal fees and not claiming medical or physical injury.30
On July 21, 1998 Petitioner Sonneland filed a motion and memorandum to exclude Respondent‘s emotional distress claims.31 He moved to dismiss her claims for damages because she put her psychological condition in issue, stipulated to a psychological independent medical examination (IME) in Philadelphia, and then refused to be tested.32 On August 18, 1998 Petitioner Sonneland filed a memorandum in support of his motion to recover costs for the psychological examination.33
On August 25, 1998, after a hearing on the motions, Judge Schroeder signed an order which read in part:
III. FINDINGS
Based on review of the foregoing materials, and after hearing argument of counsel, the Court finds as follows:
A. Regarding Summary Judgment
1. There is no genuine issue of material fact and defendant is entitled as a matter of law to summary judgment dismissing this action with prejudice.
2. There is nothing in the record before the Court establishing that the plaintiff suffered any damage as the result of any alleged act or omission by defendant Dr. John Sonneland.
3. The entire remaining claims in plaintiff‘s complaint and the complaint in its entirety should be dismissed with prejudice.
A. Regarding Motion to Strike McCormick Declaration
1. The McCormick Declaration should not be stricken and that motion should be denied.
IV. ORDER AND JUDGMENT
Based on the foregoing, it is hereby
ORDERED, ADJUDGED AND DECREED as follows:
1. The McCormick Declaration is not stricken.
2. The complaint and all claims therein are dismissed with prejudice.
DONE IN OPEN COURT this 25 of August, 1998.
/s/ Richard J. Schroeder34 Richard J. Schroeder, J.
On August 12, 1998 Respondent Berger filed a motion for reconsideration of the court‘s order granting summary judgment.35 On September 4, 1998 Petitioner Sonneland filed a responding memorandum.36
On September 11, 1998, Judge Schroeder signed an order which read:
II. FINDING
After reviewing the case record to date, and the basis for the motion, the court finds that: As the court‘s ruling was based upon the Plaintiff‘s failure to present evidence
III. ORDER
It Is Ordered that: Plaintiff‘s motion for reconsideration is granted; that plaintiff shall have the opportunity to respond to the emotional distress issue by September 28, 1998, and that the Defendant‘s motion shall be reheard on October 9, 1998, together with Defendant‘s motion for costs arising out of Dr. Green‘s exam of the plaintiff.
Dated: 9-11-98
/s/ Richard J. Schroeder37 Judge
On September 30, 1998 Respondent Berger filed a responsive brief to Petitioner‘s motion for summary judgment on the issue of emotional damages.38 On October 2, 1998 Respondent filed a response.39
On October 23, 1998, after a hearing, Judge Schroeder signed an order reading in part:
III. FINDINGS
Based on review of the foregoing materials, and after hearing argument of counsel the court finds as follows:
A. Regarding Summary Judgment
1.
RCW 7.70 et. seq. supports a cause of action for breach of confidentiality.2. The plaintiff was required to set forth objective symptoms of emotional distress, as part of her prima facie case to establish liability, not damages. Nord v. Shoreline Savings, 116 Wash.2d 477, 484, 805 P.2d 800 (1991).
3. Plaintiff has not set forth in the record the required objective symptoms оf emotional distress required under Washington law and no prima facie case has been established.
4. Accordingly, there is no genuine issue of material fact and defendant is entitled to judgment as a matter of law.
5. Therefore this action should be dismissed with prejudice for failure to establish a prima facie case.
B. Regarding Motion for Recovery of Costs
1. The Court finds the costs requested by defendant should not be reimbursed by plaintiff.
ORDER AND JUDGMENT
Based on the foregoing, it is hereby
ORDERED, ADJUDGED, AND DECREED:
1. The complaint and all claims therein are dismissed with prejudice.
2. Defendant‘s motion to recover IME costs is denied.
DONE IN OPEN COURT this 23 day of October, 1998.
/s/ Richard J. Schroeder40 Richard J. Schroeder, J.
On October 29, 1998 Respondent Berger filed a motion and memorandum for reconsideration of the order granting summary judgment.41 On November 9, 1998 Petitioner Sonneland filed a responsive memorandum.42
On December 18, 1998, Judge Schroeder signed an order denying Respondent Berger‘s motion for reconsideration.43
On January 13, 1999 Respondent filed a notice of appeal to the Court of Appeals, Division Three.44 On June 13, 2000 the Court of Appeals, the Honorable Frank L. Kurtz writing, reversed the judgment of the Superior Court and remanded the matter for further proceedings.45 The court concluded:
We hold that a tort action exists under RCW 7.70.030(1) for damages resulting from the unauthorized disclosure of confidential information related to health care and obtained within the physician-patient relationship. Moreover, a plaintiff seeking compensation for emotional damages resulting from such an action need not meet the heightened standards designed to limit liability in cases alleging bystander negligent infliction of emotional distress. The objective symptomatology requirement, imposed to place limits on a tortfeasor‘s liability to bystanders, is not necessary to limit liability when the physician‘s liability is already limited byRCW 7.70.010 and the standard of care requirement ofRCW 7.70.030(1) . Finally, we hоld that one who has established a cause of action for breach of physician-patient confidentiality is entitled to recover damages for (a) the harm to his or her interests in confidentiality resulting from the unauthorized disclosure; (b) his or her mental distress proved to have been suffered if it is of a kind that normally results from such an unauthorized disclosure; and (c) special damage of which the unauthorized disclosure is a legal cause.Taking the evidence in the light most favorable to Ms. Berger, the evidence here is sufficient to raise a question of fact as to whether Ms. Berger was injured by Dr. Sonneland‘s unauthorized disclosure of confidential information related to health care and obtained within the physician-patient relationship. For this reason, the judgment of the superior court is reversed and the matter is remanded for further proceedings consistent with this opinion.46
On July 13, 2000 Petitioner Sonneland sought review by this court47 which was granted on October 31, 2000.48
DISCUSSION
STANDARD OF REVIEW
“Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”49 The moving party bears the burden of demonstrating there is no genuine dispute as to any material fact.50 The appellate court engages in the same inquiry as the trial court when reviewing an order for summary judgment.51 All facts and reasonable inferences are considered in a light most favorable to the nonmoving party.52 All questions of law are reviewed de novo.53
MEDICAL MALPRACTICE
The elements of medical malpractice are set forth in
(1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances;
(2) Such failure was the proximate cause of the injury complained of.54
These elements are particularized expressions of the four traditional elements of negligence:
The questions presented in this case are discussed in the order of their inclusion as “questions presented.”
(1) Whether a cause of action for a physician‘s unauthorized disclosure of confidential information must be filed solely under the Uniform Health Care Information Act,
The Uniform Health Care Information Act,
Civil remedies. (1) A person who has complied with this chapter may maintain an action for the relief provided in this section against a health care provider or facility who has not complied with this chapter.
(2) The court may order the health care provider or other person to comply with this chapter. Such relief may include actual damages, but shall not include consequential or incidental damages. The court shall award reasonable attorneys’ fees and all other expenses reasonably incurred to the prevailing party.
(3) Any action under this chapter is barred unless the action is commenced within two years after the cause of action is discovered.
(4) A violation of this chapter shall not be deemed a violation of the consumer protection act,
chapter 19.86 RCW .59
Petitioner Sonneland claims Respondent Berger‘s exclusive remedy for her cause of action is under the Uniform Health Care Information Act and her claim is time-barred because of the two-year statute of limitations under the Act.60 Respondent argues there is nothing in
Statutory interpretation is a question of law which this court reviews de novo.63 Courts should assume the Legislature means exactly what it says.64 Plain words do not require construction.65 The courts do not engage in statutory interpretation of a statute that is unambiguous.66 If a statute is plain and unambiguous, its meaning must be derived from the wording of the statute itself.67 A statute is ambiguous if it
The Uniform Health Care Information Act,
(2) Whether there is a cause of action for unauthorized disclosure by a physician of confidential information under
RCW chapter 7.70 .
This court has recognized a cause of action against a physician for unauthorized disclosure of privileged information.73 Causes of action for injuries occurring as a result of health care are governed by
Declaration of modification of actions for damages based upon injuries resulting from health care. The state of Washington, exercising its police and sovereign power, hereby modifies as set forth in this chapter and in
RCW 4.16.350 , as now or hereafter amended, 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 which is provided after June 25, 1976.
Propositions required to be established —Burden of proof. No award shall be made in any action or arbitration for damages for injury occurring as a result of health care which is provided after June
(1) That injury resulted from the failure of a health care provider to follow the accepted standard of care;
(2) That a health care provider promised the patient or his representative that the injury suffered would not occur;
(3) That injury resulted from hеalth care to which the patient or his representative did not consent.
Unless otherwise provided in this chapter, the plaintiff shall have the burden of proving each fact essential to an award by a preponderance of the evidence.
Petitioner Sonneland claims Respondent does not have a cause of action for breach of physician-patient confidentiality under
The Court of Appeals in this case concluded “a tort action exists under
In Linville the court determined a patient‘s claim was time-barred by the eight-year statute of limitations under
When injury results from health care, any legal action is governed by
[t]he prevention, treatment, and management of illness and the preservation of mental and physical well-being through the services offerеd by the medical and allied health professions.92
The Court of Appeals correctly concluded Petitioner‘s conduct constituted health care and that Linville is distinguishable. When the physician in Linville commented on the patient‘s previous physician, he was not utilizing the skills he had been taught in examining, diagnosing, treating or caring for the patient. However, in this case Petitioner Sonneland‘s conduct did constitute “health care” because he disclosed the confidential information in his effort to discover more information about Respondent‘s use of pain medications so he could treat, diagnose, or care for her. Petitioner Sonneland‘s conduct meets the definition of “health care.” Respondent Berger should be able to file a claim under
(3) Whether exрert medical evidence is required to prove emotional distress under
RCW chapter 7.70 .
Petitioner Sonneland claims expert medical opinion is necessary to prove the existence and causation of Respondent‘s emotional distress because those facts are not immediately apparent to laypersons.93 Respondent Berger asserts her injures are wholly recognizable by laypersons and do not require medical testimony on causation.94 The Court of Appeals agreed and concluded expert testimony on causation is not required because the medical facts related to causation are readily observable to laypersons.95
“In general, expert testimony is required when an essential element in the case is best established by an opinion which is beyond the expertise of a layperson.”96 Expert testimony will generally be necessary to establish the standard of care and most elements of causation.97 Medical testimony on proximate cause is required in medical malpractice cases.98 Medical facts must be proved by expert testimony unless they are observable by laypersons and describable without medical training.99 For example, technical medical expertise is not required in cases where a physician amputates the
To make a prima facie case under
(1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances;
(2) Such a failure was the proximate cause of the injury complained of.102
The Court of Appeals erroneously concluded that Respondent‘s emotional distress and causation were observable by laypersons. Because of her extensive and unusual medical history, the cause of Respondent Berger‘s insomnia, stress, and gastrointestinal problems requires medical evidence and cannot be determined by observation of laypersons. Furthermore, causation of Respondent‘s injuries is not readily observable because she had the same symptoms years before Petitioner disclosed the confidential information and those preexisting medical problems were the reason she consulted Petitioner. Respondent provided a declaration from a medical ethicist concerning the standard of care, but did not provide a declaration on causation. Under the facts of this case, causation is not readily аpparent to laypersons.103 Expert medical testimony is essential for Respondent to prove her emotional distress claim.
Petitioner Sonneland correctly asserted Respondent has not presented any evidence on causation, a necessary element for a prima facie case under
(4) Whether objectively verifiable symptoms are required to support a cause of action for emotional distress under
RCW chapter 7.70 .
Petitioner Sonneland asserts Respondent must prove her claimed emotional distress with objectivеly verifiable symptoms.106 He claims the objective symptom requirement is not limited to negligent infliction of emotional distress claims.107 Respondent Berger argues objective symptoms of emotional distress are not required for a claim of breach of physician-patient confidentiality because the requirement is limited to claims for negligent infliction of emotional distress.108
The Court of Appeals concluded a plaintiff seeking compensation for emotional damages under
The objective symptom requirement was first articulated in Hunsley v. Giard, the first Washington case to recognize a cause of action for bystander negligent infliction оf emotional distress.111 “[T]o satisfy the objective symptomology requirement established in Hunsley, a plaintiff‘s emotional distress must be susceptible to medical diagnosis and proved through medical evidence.”112 Washington cases have limited the objective symptom requirement to negligent infliction of emotional distress claims.113
In this case the Court of Appeals correctly concluded the objective symptom requirement is not necessary to prove emotional distress damages under
SUMMARY AND CONCLUSIONS
A cause of action for a physician‘s unauthorized disclosure of confidential patient information is not required to be filed only under the Uniform Health Care Information Act,
There is a cause of action under
Expert medical evidence is required under the particular facts of this case to establish a claim under
We reverse the Court of Appeals and affirm the decision of the Spokane County Superior Court granting summary judgment in favor of Petitioner John Sonneland, M.D.
ALEXANDER, C.J., JOHNSON, BRIDGE, CHAMBERS, OWENS, JJ., concur.
When considering the evidence and reasonable inferences therefrom in the light most favorable to Plaintiff Suzan Berger, there is a genuine issue of material fact as to whether she suffered emotional distress as a result of Dr. John Sonneland‘s alleged medical malpractice in making an unauthorized disclosure of confidential рatient information. Therefore, I respectfully dissent from the summary dismissal of Berger‘s claim.
I concur with the majority‘s conclusion that the Uniform Health Care Information Act (
The majority notes that Berger filed a motion for summary judgment stating that she was claiming only her emotional distress arising out of Sonneland‘s conduct. Id. at 260. Berger claimed that as a result of Sonneland‘s disclosure, she developed insomnia, anxiety, and stress (including nausea, vomiting, and weight loss), and that she incurred legal fees (consequential damages) in contesting her ex-husband‘s subsequent action to modify the custodial plan for their children. Id. at 259-60; Clerk‘s Papers (CP) at 124-25.
“[T]he general rule in Washington is that expert medical testimony on the issue of proximate cause is required in medical malpractice cases.” Reese v. Stroh, 128 Wash.2d 300, 308, 907 P.2d 282 (1995). However, the rule is predicated on the premise that jurors and courts do not usually have sufficient knowledge and training to determine whether a physician‘s actions caused a plaintiff‘s injury. Id.
In the case before us, Berger‘s symptoms of emotional distress are manifested by symptoms that are readily observable by laypersons and can be described without medical training. Berger‘s gastrointestinal problems or an alleged psychiatric disorder would necessitate expert medical evidence to establish causation. Therefore, to the extent she seeks to show emotional distress resulting from or associated with her gastrointestinal problems, or which cannot be readily distinguished from stress caused by those problems, an expert is necessary to establish the necessary causal link. However, it is not such conditions which she attributes to the medical malpractice. Technical expertise is not required to understand the alleged anxiety and stress generated by disclosures to an ex-husband and a child custody action allegedly precipitated by the physician‘s disclosure. The Court of Appeals properly held as follows:
[O]ne who has established a cause of action for breach of physician-patient confidentiality is entitled to recover damages for (a) the harm to his or her interests in confidentiality resulting from the unauthorized disclosure; (b) his or her mental distress proved to have been suffered if it is of a kind that normally results from such an unauthorized disclosure; and (c) special damage of which the unauthorized disclosure is a legal cause.
Berger v. Sonneland, 101 Wash.App. 141, 158, 1 P.3d 1187 (2000).
A plaintiff alleging emotional distress as the damаge for breach of the physician-patient relationship should not invariably be required to prove the emotional distress by expert testimony. Berger should be able to pursue her action for a breach of Sonneland‘s professional duty.1
In addition, Berger submitted declarations describing her lack of trust of health care providers and associated stress resulting from Sonneland‘s breach of confidentiality. Given her health conditions, it is necessary for her to have frequent contact with health care providers, and expert testimony is not necessary to show a causal link between her emotional distress in dealing with health care providers, knowing that her trust has previously been betrayed by her own physician, and that betrayal.
When aсcepting Berger‘s factual allegations as true, and drawing all reasonable inferences in her favor, there is sufficient evidence to raise a question of fact as to whether Berger suffered emotional distress as a result of Sonneland‘s disclosure of confidential information about her. The Court of Appeals should be affirmed, summary dismissal of Berger‘s medical malpractice claim should be reversed, and the case should be remanded for trial.
MADSEN and SANDERS, JJ., concur.
Notes
Patient authorization of disclosure. (1) A patient may authorize a health care provider to disclose the patient‘s health care information. A health care provider shall honor an authorization and, if requested, provide a copy of the recorded health care information unless the health care provider denies the patient access to health care information under
. . . .
(4) Except as provided by this chapter, the signing of an authorization by a patient is not a waiver of any rights a patient has under other statutes, the rules of evidence, or common law.
. . . .
Discovery request or compulsory process.
. . . .
(3) Production of health care information under this section, in and of itself, does not constitute a waiver of any privilege, objection, or defense existing under other law or rule of evidence or proсedure.
But see
70.02.010 Definitions. As used in this chapter, unless the context otherwise requires:
. . . .
(4) “Health care” means any care, service, or procedure provided by a health care provider:
(a) To diagnose, treat, or maintain a patient‘s physical оr mental condition; or
(b) That affects the structure or any function of the human body.