Joe M. Eskridge, Md And Judy Y. Eskridge, Apps. v. Kelby Dahmer Fletcher, Res. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOE M. ESKRIDGE, MD and ) No. 78013-1-I
JUDY Y. ESKRIDGE, husband and )
wife, ) DIVISION ONE
Appellants,
v.
) UNPUBLISHED OPINION
KELBY DAHMER FLETCHER and, )
STOKES LAWRENCE, P.S., a )
Washington Professional Service )
Corporation,
Respondents. ) FILED: June 24, 2019
SCHINDLER, J. — Dr. Joseph Eskridge appeals summary judgment dismissal of
his legal malpractice lawsuit against attorney Kelby Fletcher and Stokes Lawrence PS.
We affirm.
Employment at Swedish Medical Center
Dr. Joseph Eskridge is a neuroradiologist who performs neuro endovascular
surgery. Dr. Eskridge began working at the Swedish Medical Center Neuroscience
Institute in 2004. Dr. Eskridge agreed to and signed the terms and conditions of the
Swedish Medical Center (Swedish) “Information Confidentiality and Non-Disclosure
No. 78013-1-112
Agreement” (Information Confidentiality Agreement) in 2004 and every two years
thereafter. The 2012 Information Confidentiality Agreement states, in pertinent part:
1. I will access, use and disclose minimum confidential information only
as necessary to perform my job functions. This means, among other
things, that:
a.) I will only access, use, and disclose the minimum confidential
information as authorized to do my job;
b.) I will not in any way access, use, divulge, copy, release, sell, loan,
review, alter, or destroy any confidential information except as
properly and clearly authorized within the scope of my job and in
accordance with all applicable Swedish policies and procedures and
with all applicable laws;
3. I understand that it is my responsibility to be aware of Swedish
policies regarding electronic communications and other policies that
specifically address the handling of confidential information and
misconduct that warrants corrective disciplinary action.
5. I understand that any fraudulent application, violation of confidentiality
or any violation of the above provisions may result in disciplinary
action . . up to and including termination of employment and/or
.
affiliation with Swedish.
The Information Confidentiality Agreement defines “confidential information” as “[p]atient
information (medical records, conversations, demographic information, financial
information).”
In 2009, Swedish required Dr. Eskridge to engage in and complete a “clinical
corrective action plan.”
Washington Physicians Health Program Evaluation
In 2013, Madigan Army Medical Center neurologist Dr. Yince Loh worked part
time at the Swedish Neuroscience Institute. On September 10, 2013, Dr. Eskridge
made “crude” and “rude” comments in phone calls and text messages to Dr. Loh. Dr.
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No. 78013-1-1/3
Loh reported the behavior of Dr. Eskridge to Swedish. Dr. Loh believed Dr. Eskridge
was intoxicated.
On September 13, Swedish medical staff contacted the Washington Physicians
Health Program (WPHP) regarding “multiple episodes” of Dr. Eskridge “lashing out at
other staff,” concerns about intoxication, and the September 10 communications with
Dr. Loh. Swedish suspended Dr. Eskridge’s clinical privileges and directed him to call
WPHP to obtain an assessment.
Dr. Eskridge met with WPHP psychiatrist Dr. Charles Meredith on September 26.
Dr. Eskridge admitted drinking ‘several glasses of wine” and arguing with Dr. Loh on
September 10. Dr. Eskridge denied any other episodes of “being verbally aggressive.”
However, contrary to Dr. Eskridge’s assertion, Dr. Meredith notes, “The documentation
provided by Swedish indicates there have been a number of such incidents since 2008.”
Dr. Meredith diagnosed Dr. Eskridge with “[a]lcohol abuse.” Dr. Meredith states
Dr. Eskridge “does admit to what is in my opinion an unhealthy level of alcohol
consumption, although it is not clear that he is dependent.”
We do have concerns about his alcohol use. Questions have been raised
on occasion apparently by his wife regarding his alcohol use in the past
and certainly have recently been raised in his professional environment.
There are implications that his alcohol use may have negatively impacted
his behavior in recent stressful interactions with colleagues.
Dr. Eskridge agreed to participate in mental health treatment and a one-year
monitoring program. At the end of the one-year monitoring period in fall 2014, Dr.
Eskridge told Dr. Meredith that “he still needs to work on ‘diplomacy skills’ with providers
such as the neurologist with whom he had an interpersonal dispute that led to his
referral here.” Dr. Eskridge agreed that “his alcohol intoxication contributed to his
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No. 78013-1-1/4
situation and he needs to be mindful and conservative in his use if he drinks
recreationally again.”
Letter to Madician
On April 26, 2015, Dr. Eskridge “contacted the Madigan Command office by
phone.” Dr. Eskridge identified himself as “Dr. Mike” and requested a fax number and
e-mail address. The next day on April 27, Dr. Eskridge sent an unsigned letter by e
mail to the Office of the Army Inspector General. The letter criticizes the treatment Dr.
Loh provided to seven Swedish patients and asserts Dr. Loh engaged in “activities that
violate Army policy and the federal False Claims Act Anti-Kickback Statute.” Dr.
Eskridge identifies the seven patients by “name, medical record number, age,
diagnosis, procedure information including procedure date, and discharge status.”
The e-mail address Dr. Eskridge used to send the letter contained his name. On
April 28, Madigan personnel called Dr. Eskridge about the letter he sent by e-mail. Dr.
Eskridge “again claimed to be Dr. Mike until he was told that his identity had been
revealed in his email.” Madigan personnel notified “Army Criminal Investigation”
because “Dr. Eskridge’s actions were considered irregular and suspicious.”
At the request of Dr. Loh, on May 20, Madigan chief of medicine Dr. Jay Erickson
notified Swedish of the assertions Dr. Eskridge made in the letter “so that Swedish
could conduct an internal investigation as deemed appropriate.”
Dr. Loh requested that I inform you about Dr. Eskridge’s communications
with Madigan last month. As you may know, Dr. Eskridge sent a report to
Madigan on April 27, 2015 containing numerous allegations about Dr.
Loh’s medical care and professional conduct.
Dr. Eskridge contacted the Madigan Command office by phone on April
26, 2015 under a false name, identifying himself as Dr. Mike. He
requested a fax number and email contact from the office secretary. On
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No. 78013-1-1/5
April 27, 2015, he sent an accusatory report about Dr. Loh via email to the
office secretary. The report was written in an unusual style/format similar
to a newspaper article. It contained private health information and was
anonymous. The office secretary determined that the email came from Dr.
Eskridge because the originating email address contained his name.
When he was contacted by phone on April 28, 2015 he again claimed to
be Dr. Mike until he was told that his identity had been revealed in his
email.
Investigation and Review of Letter Sent to Mad igan
Madigan conducted an investigation of Dr. Loh. On May 20, Madigan concluded
there were “no substantiated findings of sub-standard care or unprofessional actions by
LTC~11 Loh at Madigan.”
Swedish hired an “external reviewer” to investigate Dr. Loh’s care of patients.
The external reviewer “found Dr. Loh provided quality care to the patients and no
deficiencies were discovered.”
On June 4, Swedish placed a “precautionary restriction” on Dr. Eskridge’s
medical staff privileges and notified him that the Professional Behavior Quality Review
Committee and the Medical Executive Committee (MEC) planned to conduct a review of
the letter he sent to Madigan.
On June 5, the chief of staff at Swedish sent a letter to Dr. Eskridge stating, “[lit
is suspected that you accessed those patient charts without proper authorization” and
“you may have violated [the Health Insurance Portability and Accountability Act of 1996
(HIPAA), Pub. L. 104-191, 110 Stat. 1936,] and Swedish policies by releasing protected
health information to third parties without proper consent.”2 The letter attached a copy
of the Swedish policy on “Integrity, Compliance, Privacy and Security” and the “Levels
1 Lieutenant Colonel.
2 HIPAA limits disclosure of protected health information without the patient’s consent. 45 C.F.R.
§ 164.502.
5
No. 78013-1 -116
of Violation.” The policy states the level of violation is determined “according to the
severity of the violation—Level One” is an unintentional violation, “Level Two” is an
“Intentional Violation Not for Personal Gain or Malice,” and “Level Three” is an
“Intentional Violation for Personal Gain or Malice.”3
Dr. Eskridge contacted Kelby Fletcher, an employment attorney at Stokes
Lawrence PS (collectively, Fletcher). On June 10, Fletcher and Stokes Lawrence
attorney Thomas Lerner met with Dr. Eskridge. Lerner had experience in representing
medical professionals and institutions. Lerner addressed the consequences of
revocation of medical privileges at Swedish. Lerner told Dr. Eskridge that revocation of
privileges would result in a report to the Washington State Department of Health
Medical Quality Assurance Commission (MQAC) and the National Practitioner Data
Bank.
On June 15, Fletcher sent “Engagement Terms” and a letter to Dr. Eskridge
confirming Fletcher will represent Dr. Eskridge “in connection with your employment at
Swedish Neurological Institute.”
On June 23, Swedish privacy officer Tracy Howes and Swedish hospital attorney
Peter Kim interviewed Dr. Eskridge. Fletcher attended the interview. Dr. Eskridge
admitted that he accessed the Swedish medical records of patients with whom he had
no treatment relationship in order to obtain the patient information in the letter to
Mad igan. Dr. Eskridge said he reported his concerns about the care Dr. Loh provided
to patients to the former director of the Swedish Neuroscience Institute Dr. John
Henson. Dr. Eskridge said he sent the letter to Madigan because he “felt” Dr. Henson
did not take any action. When asked why he did not “use any of the Swedish
~ Boldface omitted.
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No. 78013-1-1/7
mechanisms for reporting and addressing substandard care,” Dr. Eskridge said he
“forgot he could report it via eQVR[41 and he didn’t know he could report it to
Compliance.” When asked if any of his cases had been the subject of an internal
investigation, Dr. Eskridge admitted he “may have had one case reviewed.” Contrary to
his assertion, Swedish records showed that between 2005 and 2015, the internal
Cardiovascular Review Committee reviewed over 14 of his cases.
On July 1, Howes issued a case investigation report to the MEC. The report
states Dr. Eskridge improperly accessed Swedish patient records “outside of any
treatment or Swedish managed or approved clinical quality or performance
improvement process” and “made an unauthorized disclosure of patient information.”
On July 14, Fletcher sent an e-mail to Dr. Eskridge regarding the “[u]pcoming
MEC action.”
We will say that you acted in good faith on the reasonable belief that you
could convey the information to Madigan. I don’t know what the grounds
are for revocation of your privileges, etc. and that is why I requested the
by-laws from [Swedish attorney] Ms[.] [Betsy] Vo. There is a hearing
procedure for Swedish to follow in order for this to occur and it will have
the burden of proof, if I recall correctly.
Until we know more about how they want to proceed, we are just
guessing. It will be the HIP[A]A issue, for sure. And it could involve an
allegation that you were acting unprofessionally or something of the sort.
Fletcher told Dr. Eskridge in the e-mail that he would obtain a copy of the
Swedish policies and bylaws. Fletcher sent an e-mail to Dr. Eskridge the next day on
July 15. Fletcher informed Dr. Eskridge, “[Y]ou will have the burden of proving by clear
and convincing evidence that any adverse action against you was arbitrary or
unreasonable.’ “ Fletcher told Dr. Eskridge, “I don’t think you have a winnable
~ Electronic quality variance report.
7
No. 78013-1-1/8
retaliation claim if they press forward on the patient privacy issue.” Fletcher cites the
following Swedish policy provisions:
At p.[5J 1, an element of the policy is “assuring compliance with all
applicable state and federal laws, including those providing for the privacy
and security of protected health information .
At p. 3 a responsibility of a ‘workforce member’ is compliance with
[Swedish] Code of Conduct, HIPAA regulations and system policies.
Workforce members “must protect confidential information including . .
PHI [(protected health information)] . .
An example of violation of Integrity, Compliance, Privacy and Security
(ICPS) functions is a violation of [Swedish] policies. Also on p. 3.
Another ICPS violation is disclosing patient names for an unauthorized
purpose. You would contend that the disclosure, you thought, was
authorized.
There are various level[s] of violation unintentional, intentional and not
-
for personal gain or malice[,] and intentional for personal gain or malice.
As for the second level, that includes disclosing PHI “when there is no job-
related need to access, use or disclose. Here, again, you want to
. . .“
say this was, in fact, job related it had to do with patient care and
-
improper payment. That is a stretch, I suppose, they will say: You should
have used internal [Swedish] processes rather than going outside of
[Swedish]. But, it is a defense.~6~
Fletcher told Dr. Eskridge that Swedish “will look at whether you failed to check
whether your course of action was prohibited.” Fletcher also notes Swedish “could
contend that your reports about [Dr.] Loh were retaliatory for the complaints he had
about you some years ago leading to your supervision” and “they could contend that
you concealed the violation by not using your name on the letter to Madigan.” Fletcher
asked Dr. Eskridge, “Can they claim there is a pattern? Are there any other things
you’ve done which led to any investigations?”
~ Page.
6 Emphasis in original; ellipses in original.
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No. 78013-1-1/9
Fletcher said, “I’ve not yet looked at the regulations regarding the National
Physician Data Bank and what and how anything here would be reported.” However,
Fletcher told Dr. Eskridge:
At your stage of career and with your accomplishments, I wonder if it really
would make any difference going forward with another institution.
Depending on what [Swedish] does tomorrow or thereafter, you will want
to be candid in any application for privileges at another institution.
MEC Recommendation To Revoke Medical Privileges
On July 23, the Swedish chief of staff sent Dr. Eskridge a “Written Notice of
Recommended Adverse Action.” MEC recommended revoking Dr. Eskridge’s privileges
and membership at Swedish for the following reasons:
1. Your deliberate release of protected health information to an outside
entity and your attempt to conceal this action, were in violation of policy
and Medical Staff Rules and Regulations, including but not limited to
rules and regulations concerning professional conduct and behavior.
2. Your failure to report any concerns through Swedish and Medical Staff
internal channels, including established processes for quality review,
was in violation of policy and Medical Staff Rules and Regulations.
3. Your history of behavior concerns shows a pattern of misconduct. You
have previously received both education and corrective action for
these concerns. Your pattern of misconduct has continued despite the
previous education and corrective actions.
The Notice of Recommended Adverse Action informs Dr. Eskridge that
“[b]ecause the MEC is recommending to the Swedish Health System Board of Trustees
that your Medical Staff privileges and membership be revoked, you have the right to
request a Review Hearing.” The notice states Dr. Eskridge must request a review
hearing in writing ‘within thirty (30) days of receipt of this letter” and “enclosed a copy of
the Swedish Medical Staff Bylaws, Article Xl: Disciplinary and Review Hearing.”
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No. 78013-1 -1/10
Dr. Eskridge sent Fletcher the July 23 Notice of Recommended Adverse Action.
At 8:09 am. on July 24, Fletcher sent an e-mail to Dr. Eskridge asking about the
“‘history of behavior concerns’ “and “‘pattern of misconduct’ “:
Item no. 3 is the most bothersome for me: “Your history of behavior
concerns shows a pattern of misconduct. You have previously received
both education and corrective actions for these concerns. Your pattern of
misconduct has continued despite the previous education and corrective
actions.” What is that about? If you have any information about that, let
me know so I can better assist you.
Fletcher testified that when he met with Dr. Eskridge, he was reluctant to discuss
what had happened in the past but referred to the incident with Dr. Loh in 2013:
I learned from [Dr. Eskridge] that there had been some incident years
before that involved alcohol and a complaint by Dr. Loh about his — Dr.
Eskridge’s — behaviors. This led to some undefined action by Swedish,
and what I understood is that it led also to a referral to the Washington
Physicians Health Plan.
I wasn’t able to tease out a whole lot of information about that,
other than Dr. Eskridge felt — I think his words were, “It was phony.” But
he didn’t provide particulars.
In late July, Fletcher and Dr. Eskridge discussed whether to request a review
hearing to contest revocation of his medical privileges. According to Dr. Eskridge,
Fletcher told him to “not go ahead with the revocation hearing.”
In late July 2015, in a phone conversation, Mr. Fletcher communicated to
me that it was his advice, counsel, and recommendation that I not go
ahead with the revocation hearing. He said it would be expensive and that
nothing would be accomplished. He told me that with my reputation I
would have no trouble getting another job and that I could live off my
investments and patents.
On July 30, Fletcher contacted Dr. Eskridge “regarding his decision not to
appeal” the MEC recommendation. On July 31, Fletcher sent an e-mail to Dr. Eskridge
confirming, “Per our conversation of yesterday, you don’t want to bother appealing the
recommendation of the MEC and you don’t want me to do further work on this.”
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No. 78013-1-I/li
On August 10, Fletcher sent Dr. Eskridge a letter confirming his decision not to
contest the MEC recommendation to revoke his medical privileges. Fletcher states a
request for a hearing “must be made by August 20.”
I understand from our last conversation that you do not want me to
seek an appeal of the decision of the [MEC] to revoke your privileges at
Swedish. I will comply with that instruction and will not do anything
further. For that reason, I believe that my engagement by you for legal
services is now at an end.
For your information, a notice for hearing must be made by August
20. Failure to submit a timely notice will be grounds to deny you a
hearing.
Dr. Eskridge did not request a hearing.
Revocation of Medical Privileges
On November 5, the Swedish chief medical officer informed Dr. Eskridge that on
October 28, 2015, the Swedish Health System Board of Trustees affirmed the MEC
recommendation to revoke his medical staff privileges and membership. The letter
states:
Please be informed that since this final action is considered an adverse
action, the Swedish Medical Staff is required to report this adverse action
to the Washington State Medical Quality Assurance Commission and the
National Practitioner Databank.
On November 12, Dr. Eskridge’s “medical staff privileges and membership were
terminated.” Swedish reported the revocation of medical privileges to MQAC.
MQAC Investigation
In December, MQAC opened an investigation into the decision of Swedish to
revoke Dr. Eskridge’s medical provisions. Dr. Eskridge retained attorney Gerald Tarutis
to represent him.
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No. 78013-1-1/12
On March 8, 2016, Tarutis sent a letter to MQAC and a lengthy letter from Dr.
Eskridge. Citing HIPAA regulations 45 C.F.R. §~ 164.520 through .526, Tarutis argued
Dr. Eskridge did not violate HIPAA. Tarutis asserted HIPAA allows a physician to
disclose protected health information without the patient’s consent or authorization to a
public health authority like Mad igan, “provided the agency is legally authorized to collect
and receive the disclosed information and the disclosure is for ‘public health purposes,’
such as “public health surveillance, investigations, and interventions.”
On April 6, MQAC sent a letter to Tarutis. The letter does not address HIPAA or
the HIPAA defense. The letter states MQAC “closed this case.” The letter states only
that Dr. Eskridge “may have avoided this situation by reporting his concerns to [MQAC],
instead of the Office of Inspector General directly,” and “the panel acknowledges the
Respondent was attempting to bring his significant concerns regarding the standard of
care provided to patients to the attention of regulatory authorities.”
Legal Malpractice Lawsuit
On March 7, 2017, Dr. Eskridge filed a legal malpractice lawsuit against Fletcher
and Stokes Lawrence. Dr. Eskridge alleged Fletcher’s legal representation fell below
the standard of care and was the proximate cause of the decision of Swedish to revoke
his privileges and membership. Dr. Eskridge alleged Fletcher knew or should have
known that he had a defense to the alleged HIPAA violation. Fletcher filed an answer
denying the allegations.
Summary Judgment Dismissal
Fletcher filed a motion for summary judgment dismissal. Fletcher asserted Dr.
Eskridge could not prove proximate cause. Fletcher argued that if Dr. Eskridge had
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No. 78013-1-1/13
challenged the revocation of his medical privileges, he would not have prevailed in the
MEC hearing. Fletcher asserted Dr. Eskridge could not meet the burden to prove by
clear and convincing evidence that the reasons to revoke his medical privileges were
arbitrary, capricious, or unreasonable. Fletcher argued the opinions of Dr. Eskridge’s
experts on the standard of care were irrelevant and the expert opinions of John
Christiansen and Tarutis about whether Dr. Eskridge would have prevailed were
speculative. Fletcher also argued Dr. Eskridge could still pursue a wrongful termination
claim against Swedish.
In response, Dr. Eskridge primarily relied on the declaration of Tarutis on the
element of proximate cause. Tarutis states the determination by MQAC “is clear,
cogent and convincing evidence that Dr. Eskridge’s actions were well supported by
HIPAA regulations and that he could have prevailed on this ground had the matter
proceeded to a hearing before Swedish regarding his privileges.” Tarutis also asserts
that by requesting a hearing, Fletcher could have obtained discovery of additional facts
and “presenting a positive defense could have created a different atmosphere resulting
in a settlement of the issue.”
The court granted summary judgment and entered an order dismissing the
lawsuit.
Appeal of Summary Judgment Dismissal
Dr. Eskridge contends material issues of fact preclude granting summary
judgment on proximate cause. We review summary judgment de novo. Kruse v. Hemp,
121 Wash. 2d 715, 722, 853 P.2d 1373 (1993). Summary judgment is appropriate if the
pleadings, affidavits, depositions, and admission demonstrate the absence of any
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No. 78013-1-1/14
genuine issues of material fact and the moving party is entitled to judgment as a matter
of law. CR 56(c); Jonesv. Allstate Ins. Co., 146 Wn.2d 291,300-01,45 P.3d 1068
(2002).
When the defendant files a motion for summary judgment showing the” ‘absence
of evidence to support the {plaintiff]’s case,’ “the burden shifts to the plaintiff to set forth
specific facts showing a genuine issue of material fact for trial. Young v. Key Pharm.,
Inc~ 112 Wash. 2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Allegations or conclusory
statements of fact unsupported by evidence are not sufficient to establish a genuine
issue of material fact. Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash. 2d 127,
132, 769 P.2d 298 (1989); Elcon Constr., Inc. v. E. Wash. Univ., 174 Wash. 2d 157, 169,
273 P.3d 965 (2012). The nonmoving party cannot rely on “speculation, argumentative
assertions that unresolved factual issues remain, or in having its affidavits considered at
face value.” Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wash. 2d 1, 13, 721 P.2d 1
(1986). Bare assertions that a genuine material issue exists cannot defeat a motion for
summary judgment. SentinelC3, Inc. v. Hunt, 181 Wash. 2d 127, 140, 331 P.3d 40 (2014);
Griswold v. Kilpatrick, 107 Wash. App. 757, 763, 27 P.3d 246 (2001). A party must
present more than “[ujltimate facts” or conclusory statements. Grimwood v. Univ. of
Puget Sound, Inc., 110 Wash. 2d 355, 359, 753 P.2d 517 (1988), abrogated on other
grounds by Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wash. 2d 516, 404
P.3d 464 (2017).
If the plaintiff ‘fails to make a showing sufficient to establish the existence of an
“
element essential to that party’s case, and on which that party will bear the burden of
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No. 78013-1-1/15
proof at trial,’ “summary judgment is proper. Young, 112 Wash. 2d at 225 (quoting
Celotex, 477 U.S. at 322). Because Dr. Eskridge must meet the burden of showing by
clear and convincing evidence that the recommendation of MEC was arbitrary or
unreasonable, we incorporate that standard of proof in our assessment of the evidence
on summary judgment. Portmann v. Herard, 2 Wash. App. 2d 452, 462-63, 409 P.3d
1199 (2018).
To establish a claim for legal malpractice, the plaintiff must prove (1) the
existence of an attorney-client relationship that gives rise to a duty of care to the client,
(2) an act or omission by the attorney that breaches the duty of care, (3) damage to the
client, and (4) proximate cause between the attorney’s breach of the duty and the
damages incurred. Hizey v. Carpenter, 119 Wash. 2d 251, 260-61, 830 P.2d 646 (1992).
Fletcher’s motion for summary judgment assumed breach of the standard of care
and addressed only proximate cause. Fletcher argued Dr. Eskridge could not prove by
clear and convincing evidence that the recommendation to revoke his medical privileges
was arbitrary or unreasonable.
The “cause in fact” and “but for” test applies to proof of causation in a legal
malpractice case. Daugert v. Pappas, 104 Wash. 2d 254, 260, 704 P.2d 600 (1985). A
plaintiff in a legal malpractice case must prove that but for the negligence of the
attorney, the plaintiff probably would have prevailed in the underlying proceeding.
Daugert, 104 Wash. 2d at 263; Schmidt v. Coogan, 162 Wash. 2d 488, 492, 173 P.3d 273
(2007). A court can decide proximate cause as a matter of law only when reasonable
minds could reach but one conclusion. SentinelC3, 181 Wash. 2d at 140; Kim v. Budget
15
No. 78013-1-1/16
RentACarSys., Inc., 143 Wash. 2d 190, 203, 15 P.3d 1283 (2001); VersusLaw, Inc. v.
Stoel Rives, LLP, 127 Wash. App. 309, 328, 111 P.3d 866 (2005).
Dr. Eskridge contends expert testimony shows the legal advice of Fletcher was
the proximate cause of revocation of his privileges. Dr. Eskridge cites the MQAC
decision to argue there is clear and convincing evidence that he would have prevailed at
the MEC hearing and Swedish would not have revoked his medical privileges. Dr.
Eskridge relies primarily on the declaration of his expert Tarutis. Tarutis asserts the
MQAC decision not to pursue disciplinary action “is clear, cogent and convincing
evidence that. . . [Dr. Eskridge] could have prevailed . . . had the matter proceeded to a
hearing before Swedish.’7 For the reasons set forth below, we conclude Dr. Eskridge
has not raised a genuine issue of material fact that he probably would have prevailed in
the revocation hearing.
First, allocation of the burden of proof in a medical disciplinary proceeding is
markedly different from the revocation hearing governed by the Swedish bylaws. In a
medical disciplinary proceeding, MQAC has the burden of proving allegations against a
doctor by clear and convincing evidence. Nguyen v. Wash. Dep’t of Health Med.
Quality Assur. Comm’n, 144 Wash. 2d 516, 529, 29 P.3d 689 (2001). By contrast, in a
Swedish revocation hearing, Dr. Eskridge had the “burden of proving by clear and
convincing evidence” that the MEC recommendation to revoke his privileges “should not
be sustained because it lacks factual basis or the conclusions drawn from the facts are
arbitrary, capricious, or unreasonable.” The declaration of Tarutis does not address
~ Below, Dr. Eskridge also submitted declarations from expert witness Christensen and Mark
Fucile. Christiansen does not state that Dr. Eskridge probably would have prevailed in an MEC hearing.
Christiansen states only that “there were available internal processes available by Swedish’s own by-laws
and rules giving Dr. Eskridge the opportunity to avoid termination.” Fucile addressed only the standard of
care.
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No. 78013-1 -1117
how Dr. Eskridge would have been able to meet the high burden of proof in an MEC
revocation hearing.
Second, the scope of the evidence presented at the MEC hearing on the
recommendation to revoke medical privileges would have been far broader than the
evidence Dr. Eskridge presented to MQAC. Tarutis addressed only HIPAA in the letter
to MQAC. HIPAA generally limits use of protected health information to treatment,
payment, or health care operations. 45 C.F.R. § 164.502. Tarutis focused on certain
HIPAA provisions that allow disclosure of protected health information without patient
consent or notification to argue there was no HIPAA violation. To the extent Tarutis
addresses how Dr. Eskridge obtained this patient information, Tarutis states only that
Dr. Eskridge “personally witnessed inappropriate care” or “received reports from other
health[ ]care providers who have witnessed similar inappropriate care.” However, Dr.
Eskridge admitted he obtained protected health care information of the patients
identified in his letter to Madigan by electronically accessing and reviewing the medical
records of five patients with whom he had no treatment relationship and from whom he
had no consent to access their confidential medical records. Yet neither Tarutis nor Dr.
Eskridge address the unauthorized access of protected health information of individuals
who were not his patients or the allegation that his “history of behavior concerns shows
a pattern of misconduct.”8 The undisputed record shows that Dr. Eskridge violated the
Swedish Information Confidentiality Agreement; the policy on Integrity, Compliance,
Privacy and Security; and the Swedish rules and regulations that expressly prohibit a
8 Christiansen testified that he did not consider Dr. Eskridge’s alleged “pattern of misconduct” in
forming his opinion. In his declaration, Christiansen states that any “‘previous misconduct’ was “never
“
identified in any record available to me.” In his deposition, Christiansen similarly admitted that he formed
his opinion “without knowing anything about any previous disciplinary issues.”
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No. 78013-1-1/18
doctor from accessing the protected health information of patients with whom that
doctor has no treatment relationship. The evidence of accessing patient medical
records is a clear violation of the Information Confidentiality Agreement Dr. Eskridge
signed in 2012 that would have been presented at the Swedish hearing. The 2012
Information Confidentiality Agreement unequivocally states Dr. Eskridge agrees to “only
access . . . the minimum confidential information as authorized to do my job” and “not in
any way access. . . any confidential information except as properly and clearly
authorized within the scope of my job and in accordance with all applicable Swedish
policies and procedures.” The Swedish corrective action policy for privacy violations
identifies “[l]ooking at or accessing confidential information (including PHI/ePHI[9l) for an
unauthorized purpose” as a violation “that may result in corrective actions.”
The undisputed record supports finding Dr. Eskridge violated Swedish rules and
regulations governing professional conduct and behavior by attempting to conceal his
identity when he contacted Madigan. The Swedish rules and regulations require
doctors to report standard of care concerns. The record also shows Dr. Eskridge did
not report concerns about substandard care “through Swedish and Medical Staff
internal channels.” The undisputed record also supports finding a “pattern of
misconduct” dating back over a period of years and continuing despite previous
corrective action efforts.
According to Tarutis, if Fletcher had requested a hearing, he could have obtained
discovery on the allegation of a pattern of misconduct and by “presenting a positive
defense could have created a different atmosphere resulting in a settlement of the
issue.” Speculative and conclusory opinions cannot create a genuine issue of material
~ Electronic protected health information.
18
No. 78013-1-1/19
fact on the element of proximate cause. Dauqert, 1 04 Wn.2d at 260 (“The ‘but for’ test
requires a plaintiff to establish that the act complained of probably caused the
subsequent disability. . . . Plaintiff’s case must be based on more than just speculation
and conjecture.”); Griswold, 107 Wash. App. at 763 (expert witness’ conclusory opinion
that the claim would have settled not sufficient to raise a genuine issue of material fact
on the element of proximate “but for” causation).
We conclude Dr. Eskridge could not show by clear and convincing evidence that
but for the alleged breach of the standard of care, the recommendation to revoke his
medical privileges lacked a factual basis or the conclusions drawn from the facts were
arbitrary, capricious, or unreasonable. We affirm summary judgment dismissal of the
lawsuit.
0~
WE CONCUR: 1
Ii _
‘1
19