144 Wash. 2d 91 | Wash. | 2001
Lead Opinion
— 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
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, chapter 70.02 RCW; (2) whether there is a cause of action for unauthorized disclosure by a physician of confidential information under chapter 7.70 RCW; (3) whether expert medical evidence is required to prove emotional distress under chapter 7.70 RCW; and (4) whether objectively verifiable symptoms are required to support a cause of action for emotional distress under chapter 7.70 RCW.
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.,
On July 1, 1993 Respondent Berger consulted with Petitioner Sonneland, a physician, about her health problems.
Petitioner telephoned Respondent’s former husband and discussed with him her request for the narcotic prescription and her past use of prescription drugs.
On June 23, 1998 Petitioner Sonneland filed a second motion for summary judgment.
On July 2, 1998 Respondent Berger filed a motion to strike, as untimely, Petitioner’s motion for summary judgment.
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.
in. 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
Isl Richard J. Schroeder[25]
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.
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.
On July 21,1998 Petitioner Sonneland filed a motion and memorandum to exclude Respondent’s emotional distress claims.
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*99 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.
Isl Richard J. Schroeder[34]
Richard J. Schroeder, J.
On August 12, 1998 Respondent Berger filed a motion for reconsideration of the court’s order granting summary judgment.
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 of emotional distress damages, and that issue had not been raised in defendant’s original judgment motion.
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
*100 1st Richard J. Schroeder[37]
Judge
On September 30, 1998 Respondent Berger filed a responsive brief to Petitioner’s motion for summary judgment on the issue of emotional damages.
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 Wn.2d 477, 484 (1991).
3. Plaintiff has not set forth in the record the required objective symptoms of 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.
*101 2. Defendant’s motion to recover IME costs is denied.
DONE IN OPEN COURT this 23 day of October, 1998.
Isl Richard J. Schroeder[40]
Richard J. Schroeder, J.
On October 29, 1998 Respondent Berger filed a motion and memorandum for reconsideration of the order granting summary judgment.
On December 18, 1998, Judge Schroeder signed an order denying Respondent Berger’s motion for reconsideration.
On January 13, 1999 Respondent filed a notice of appeal to the Court of Appeals, Division Three.
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 by RCW 7.70.010 and the standard of care requirement of RCW 7.70.030(1). Finally, we hold 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*102 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 court
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.”
Medical Malpractice
The elements of medical malpractice are set forth in RCW 7.70.040:
“(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 a proximate cause of the injury complained of.”[54]
These elements are particularized expressions of the four traditional elements of negligence: duty, breach, proximate cause, and damage or injury.
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 he filed solely under the Uniform Health Care Information Act, chapter 70.02 RCW.
The Uniform Health Care Information Act, chapter 70.02 RCW, regulates disclosure and access to health care information.
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.
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.
Statutory interpretation is a question of law which
Chapter 70.02 RCW is not ambiguous. RCW 70.02.170(1) reads “[a] person who has complied with this chapter may maintain an action for the relief provided in this section.”
(2) Whether there is a cause of action for unauthorized disclosure by a physician of confidential information under chapter 7.70 RCW.
This court has recognized a cause of action against a physician for unauthorized disclosure of privileged information.
RCW 7.70.010 reads:
Declaration of modification of actions for damages*107 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.
RCW 7.70.030 reads:
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 25, 1976, unless the plaintiff establishes one or more of the following propositions:
(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 health 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 chapter 7.70 RCW because her injuries were not the result of “health care.”
The Court of Appeals in this case concluded “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.”
In Linville the court determined a patient’s claim was time-barred by the eight-year statute of limitations under RCW 4.16.350 which provides the statute of limitations for injuries resulting from “health care.”
When injury results from health care, any legal action is governed by chapter 7.70 RCW.
[t]he prevention, treatment, management of illness and the preservation of mental and physical well-being through the services offered by the medical and allied health professions.[92]
The Court of Appeals correctly concluded Petitioner’s
(3) Whether expert medical evidence is required to prove emotional distress under chapter 7.70 RCW.
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.
“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.”
To make a prima facie case under chapter 7.70 RCW when the plaintiff claims a physician did not follow the accepted standard of care, the plaintiff must prove:
(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 a 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
Petitioner Sonneland correctly asserted Respondent has not presented any evidence on causation, a necessary element for a prima facie case under chapter 7.70 RCW.
(4) Whether objectively verifiable symptoms are required to support a cause of action for emotional distress under chapter 7.70 RCW.
Petitioner Sonneland asserts Respondent must prove her claimed emotional distress with objectively verifiable symptoms.
The Court of Appeals concluded a plaintiff seeking compensation for emotional damages under chapter 7.70 RCW is not required to meet the objective symptomology requirement.
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 of emotional distress.
In this case the Court of Appeals correctly concluded the objective symptom requirement is not necessary to prove emotional distress damages under chapter 7.70 RCW because Respondent did not claim negligent infliction of emotional distress. Petitioner cites no authority for his proposition that the requirement should be extended to other causes of action. Respondent Berger is not required to establish objective symptoms to make a factual determination whether a physician disclosed confidential information without authority.
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, chapter 70.02 RCW. Respondent is not limited to filing her cause of action against Petitioner under the Act.
There is a cause of action under chapter 7.70 RCW for a physician’s unauthorized disclosure of confidential information when the injury occurs as a result of “health care,” when the breach occurs while the physician is utilizing the skills the physician had been taught in examining, diagnosing, treating or caring for the patient. Petitioner Sonneland’s conduct constituted “health care” when he disclosed Respondent’s confidential health care information without authorization.
Expert medical evidence is required under the particular facts of this case to establish a claim under chapter 7.70 RCW because causation is not observable by laypersons. Our conclusion is limited to the facts of this case in which the patient has an extensive and unusual medical history which requires medical evidence to establish causation of her emotional distress. In the summary judgment proceedings Respondent did not establish causation with expert medical evidence. Nor did she establish the consequential damages of attorney fees she claims to have incurred because of Petitioner’s unauthorized disclosure of confidential information to her former husband. Her mere assertion in her pleadings that she incurred legal expense does not rise to the level of proof required for summary judgment. She did not make a prima facie case. The trial court was correct in granting summary judgment in favor of Petitioner Sonneland.
We reverse the Court of Appeals and affirm the decision of
Alexander, C.J., and Johnson, Bridge, Chambers, and Owens, JJ., concur.
Berger v. Sonneland, 101 Wn. App. 141, 143, 1 P.3d 1187 (2000).
Clerk’s Papers at 3.
Chapter 70.02 RCW; see RCW 70.02.902.
Clerk’s Papers at 5.
Id. at 4.
Id. at 9.
id.
id.
id.
Id. at 23.
Id. at 23-25.
Id. at 25.
Id.
Id. at 124-25.
Id.
Id. at 22, 35.
Id. at 16, 21.
Id. at 27.
Id. at 33. The first, second, and third causes of action were for breach of (1) confidentiality; (2) fiduciary relationship; and (3) the Uniform Health Care Information Act, chapter 70.02 RCW.
Id. at 33, 46.
Id. at 35.
Id. at 68.
Id. at 48.
Id.
25 Id. at 54.
Id. at 55-56.
Id.
Id.
Id.
Id. at 67-68.
Id. at 118, 122.
Id. at 122.
Id. at 144.
34 Id. at 149-50.
Id. at 135.
Id. at 151.
37 Id. at 158.
Id. at 162.
Id. at 169.
40 Id. at 207.
Id. at 22, 227.
Id. at 228.
Id. at 232.
Id. at 234.
Berger, 101 Wn. App. at 158.
46 Id. at 157-58.
Pet. for Discretionary Review, Wash. State Supreme Ct. (July 13, 2000).
Order, Wash. State Supreme Ct. (Oct. 31, 2000).
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998) (citing CR 56(c)).
Folsom, 135 Wn.2d at 663 (citing Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979)).
Mt. Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994) (citing Syrovy v. Alpine Res., Inc., 122 Wn.2d 544, 548 n.3, 859 P.2d 51 (1993)).
Mt. Park Homeowners, 125 Wn.2d at 341 (citing Taggart v. State, 118 Wn.2d 195, 199, 822 P.2d 243 (1992)); Syrovy, 122 Wn.2d at 548 n.3.
Id.
54 Caughell v. Group Health Co-op of Puget Sound, 124 Wn.2d 217, 233, 876 P.2d 898 (1994) (quoting RCW 7.70.040).
Id. at 233.
Chapter 70.02 RCW.
RCW 70.02.005(1).
RCW 70.02.020.
59 RCW 70.02.170 (emphasis added).
Pet. for Discretionary Review at 7, 12. See RCW 70.02.170(3).
Answer to Pet. for Discretionary Review at 6-7.
Berger, 101 Wn. App. at 150.
W. Telepage, Inc. v. City of Tacoma, 140 Wn.2d 599, 607, 998 P.2d 884 (2000) (citing Enter. Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 551, 988 P.2d 961 (1999)).
W. Telepage, 140 Wn.2d at 609 (some quotation marks omitted) (quoting State v. McCraw, 127 Wn.2d 281, 288, 898 P.2d 838 (1995) (quoting Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 329, 815 P.2d 781 (1991))); State v. Smith, 117 Wn.2d 263, 271, 814 P.2d 652 (1991).
Id.
Davis v. Dep’t of Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999) (citing Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996)).
State v. Tili, 139 Wn.2d 107, 115, 985 P.2d 365 (1999).
Id.
W. Telepage, 140 Wn.2d at 608.
RCW 70.02.170(1) (emphasis added).
RCW 70.02.030(1) and (4) provide in part:
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*106 patient access to health care information under RCW 70.02.090.
....
(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.
RCW 70.02.060(3) provides:
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 procedure.
See RCW 4.16.350.
Loudon, v. Mhyre, 110 Wn.2d 675, 680, 756 P.2d 138 (1988) (citing Smith v. Driscoll, 94 Wash. 441, 442, 162 P. 572 (1917) (“Neither is it necessary to pursue at length the inquiry of whether a cause of action lies in favor of a patient against a physician for wrongfully divulging confidential communications. For the purposes of what we shall say, it will he assumed that, for so palpable a wrong, the law provides a remedy.”)).
RCW 7.70.010, .030. See Branom v. State, 94 Wn. App. 964, 968-69, 974 P.2d 335, review denied, 138 Wn.2d 1023, 989 P.2d 1136 (1999). Petitioner also claims the Court of Appeals applied the wrong test to define “health care.” However, the Court of Appeals did not define “health care.” It defined only what was not “health care” under chapter 7.70 RCW.
Pet. for Discretionary Review at 12-16.
Estate of Sly v. Linville, 75 Wn. App. 431, 878 P.2d 1241 (1994).
Pet. for Discretionary Review at 12-16.
Answer to Pet. for Discretionary Review at 7.
Id. at 9.
Berger, 101 Wn. App. at 157.
Id. at 148.
Id.
Linville, 75 Wn. App. at 440.
Id. at 433.
Id. at 434.
Id. at 440.
Id. (quoting Tighe v. Ginsberg, 540 N.Y.S.2d 99, 146 A.D.2d 268, 271 (1989)).
RCW 7.70.010, .030. See Branom, 94 Wn. App. at 968-69.
But see RCW 70.02.010 which provides:
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 or mental condition; or
(b) That affects the structure or any function of the human body.
State v. Pacheco, 125 Wn.2d 150, 154, 882 P.2d 183 (1994) (citing State v. Sanchez, 73 Wn. App. 486, 488, 869 P.2d 1133 (1994) (citing Shoreline Cmty. Coll. Dist. No. 7 v. Employment Sec. Dep’t, 120 Wn.2d 394, 403, 842 P.2d 938 (1992))).
See Branom, 94 Wn. App. at 969-70 (quoting Linville, 75 Wn. App. at 439) (first alteration in original).
92 The American Heritage Dictionary 833 (3d ed. 1992). See Branom, 94 Wn. App. at 969-70.
Pet. for Discretionary Review at 17-18.
Answer to Pet. for Discretionary Review at 11.
Berger, 101 Wn. App. at 153.
Harris v. Groth, 99 Wn.2d 438, 449, 663 P.2d 113 (1983) (citing 5A Karl B. Tegland, Washington Practice: Evidence § 300 (1982)).
Harris, 99 Wn.2d at 449 (citing Douglas v. Bussabarger, 73 Wn.2d 476, 479, 438 P.2d 829 (1968); Bennett v. Dep’t of Labor & Indus., 95 Wn.2d 531, 533, 627 P.2d 104 (1981)).
Reese v. Stroh, 128 Wn.2d 300, 308, 907 P.2d 282 (1995).
Harris, 99 Wn.2d at 449 (citing Bennett, 95 Wn.2d at 533). See ER 701 (opinion testimony by lay witnesses).
Young v. Key Pharms., Inc., 112 Wn.2d 216, 228, 770 P.2d 182 (1989).
Id. at 228.
102 RCW 7.70.040 (emphasis added).
See Harris, 99 Wn.2d at 449 (citing Bennett, 95 Wn.2d at 533).
See RCW 7.70.040(2). See Folsom, 135 Wn.2d at 663 (Respondent’s pleadings, affidavits, depositions, and admissions must demonstrate a genuine issue of material fact.). See Young, 112 Wn.2d at 225-26 (In summary judgment the moving party bears the burden of showing absence of an issue of material fact. After the moving party has met this initial burden the nonmoving party must establish the existence of facts necessary to make a prima facie case.).
See Young, 112 Wn.2d at 225-27.
Pet. for Discretionary Review at 18-19.
Id. at 19.
Answer to Pet. for Discretionary Review at 10-11.
Berger, 101 Wn. App. at 157-58.
Id. at 158.
Hunsley v. Giard, 87 Wn.2d 424, 436, 553 P.2d 1096 (1976); Hegel v. McMahon, 136 Wn.2d 122, 126, 960 P.2d 424 (1998).
Hegel, 136 Wn.2d at 135.
Hunsley, 87 Wn.2d at 436; Nord v. Shoreline Sav. Ass’n, 116 Wn.2d 477, 485, 805 P.2d 800 (1991) (“[T]he objective symptom requirement applies in cases where negligent infliction of emotional distress is asserted, and goes to proof of liability, not damages.”). See also Hegel, 136 Wn.2d at 132 (“In order to recover for negligent infliction of emotional distress, a plaintiff’s emotional response must be reasonable under the circumstances, and be corroborated by objective symptomotology.”).
Although the trial court made an incorrect conclusion of law when indicating Respondent was required to establish objective symptoms to make a prima facie case, this mistake of law does not make a difference on the motion for summary
Dissenting Opinion
(dissenting) — 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 patient 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 (chapter 70.02 RCW) “is not the sole or exclusive remedy for unauthorized disclosure of a patient’s confidential information.” Majority at 106.1 also agree that Berger can bring a cause of action for breach of physician-patient confidentiality under chapter 7.70 RCW because Sonneland’s conduct constituted “health care” within the meaning of the statute when he disclosed Berger’s confidential information to her ex-husband without authorization. Id. at 108-09, 114. Sonneland “disclosed the confidential information in his effort to discover more information about [Berger’s] use of pain medications so he could treat, diagnose, or care for her.” Id. at 110.
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 96. 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 95; Clerk’s Papers (CP) at 124-25.
“[T]he general rule in Washington is that expert medical
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:
[OJne 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 Wn. App. 141, 158, 1 P.3d 1187 (2000).
A plaintiff alleging emotional distress as the damage 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
Moreover, Berger has also presented sufficient factual evidence that Sonneland’s disclosure of confidential information caused her to expend funds hiring an attorney to represent her when her former husband moved for modification of their children’s placement. The majority incorrectly states that she has merely asserted that she incurred legal expense. Majority at 114. Berger filed a declaration stating she hired an attorney for this purpose, and she appended copies of her contract with that attorney as well as a statement showing draws against the retainer she paid. CP at 124-31. She has clearly provided sufficient evidence as to both causation and damages to withstand summary judgment on this basis as well.
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 accepting 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 with Ireland, J.
A negligence action may be maintained by a plaintiff claiming only emotional distress damages if avoidance of emotional distress to the plaintiff is within the scope of the defendant’s duty of care. The traditional concepts of duty, breach, causation, and damages govern the right of a plaintiff to recover in a negligence action when emotional distress is the only damage claimed. Whaley v. State, 90 Wn. App. 658, 672-74, 956 P.2d 1100 (1998).