Robert Repin v. State of Washington and Washington State University , 198 Wash. App. 243 ( 2017 )

FILED
MARCH 21, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ROBERT REPIN, )
) No. 34049-0-111
Petitioner, )
)
V. )
)
STATE OF WASHINGTON; ) PUBLISHED OPINION
WASHINGTON STATE UNIVERSITY; )
AND MARGARET CHON-URBACH, )
BVSC; and DOES 1-10, )
)
Respondents. )
FEARING, C.J. -Robert Repin sues Washington State University (WSU) and
WSU veterinarian, Dr. Margaret Cohn-Urbach, for conduct arising from the euthanasia of
his beloved Alaskan Malamute, Kaisa. Repin alleges that Cohn-Urbach, with gross
negligence, performed the euthanasia and thereby caused Kaisa pain and prolonged her
death. Cohn-Urbach also purportedly failed to fully inform him of the repercussions of
the method of euthanasia. Repin pleads causes of action in breach of contract, reckless
breach of contract, professional negligence, lack of informed consent/negligent
misrepresentation by omission, intentional or reckless infliction of emotional distress, and
conversion/trespass to chattels or trespass on the case. WSU and Cohn-Urbach moved
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for summary judgment to dismiss all claims. The trial court dismissed the lack of
informed consent/negligent misrepresentation by omission, intentional and/or reckless
infliction of emotional distress, conversion, and trespass claims. The trial court also
ruled, as a matter of law, that Repin could not recover emotional distress damages for a
reckless breach of contract. We affirm all of the trial court's rulings.
FACTS
Since the trial court granted WSU and Dr. Margaret Cohn-Urbach (collectively
WSU) summary judgment in part, we recount the facts in a light favorable to Robert
Repin. This factual statement occasionally, however, adds WSU's version of the facts.
Plaintiff Robert Rep in is a single man, with no children, who works as a gold
prospector. In 2001, Repin adopted Kaisa, an Alaskan Malamute puppy, who his niece
rescued. Kaisa grew to become an indispensable part ofRepin's reclusive life.
In September 2012, Kaisa fell ill. After a grim night, Robert Repin took Kaisa to
an emergency veterinarian. The veterinarian diagnosed Kaisa with cancer and prescribed
medication for her. Repin then transported Kaisa to Kaisa's regular veterinarian, who
recommended a visit to the WSU Veterinary Teaching Hospital.
On September 26, Robert Repin drove Kaisa from Cle Elum to Pullman and
presented Kaisa to WSU's Veterinary Teaching Hospital. Jasmine Feist and another
fourth-year veterinary student registered Kaisa with the hospital. Feist placed Kaisa in
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the intensive care unit and inserted a catheter in Kaisa's left front leg. Hours later,
defendant Dr. Margaret Cohn-Urbach, an intern at the hospital, examined Kaisa. During
this time, Repin remained with Kaisa.
Following radiographs, Veterinary Teaching Hospital clinicians diagnosed Kaisa
with metastatic cancer. Staff predicted Kaisa would live only several months. Robert
Repin insisted on a consultation with an expert. Repin spoke, on the phone, with Dr.
Kevin Choy, an oncologist, who agreed with the diagnosis of metastatic cancer. WSU
veterinarians recommended euthanasia.
After reflection, Robert Repin directed the Veterinary Teaching Hospital to
euthanize Kaisa. Repin viewed the WSU hospital to be the best at veterinary medicine.
He did not wish Kaisa to undergo weeks of agony.
Robert Repin requested that he sign paperwork before the euthanasia because he
did not trust his mental state after the procedure. He signed a Washington State
University Veterinary Teaching Hospital consent for euthanasia form. The form read, in
relevant part:
I, the undersigned, do hereby certify that I am the owner (or duly
authorized agent of the owner) of the animal described above; that I hereby
give the clinicians of the Washington State University Veterinary Teaching
Hospital full and complete authority to humanely destroy the
aforementioned animal. ...
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I hereby release the Washington State University Veterinary
Teaching Hospital, their agents, and representatives, from any and all
liability for said animal.
Clerk's Papers (CP) at 126. Repin denies seeing the release language because of his
distraught state of mind. No hospital employee discussed the language with him. Repin
checked the form's box directing Kaisa's remains be returned to him rather than studied
at the hospital. Repin paid $260.56 for the euthanasia.
Robert Repin and a Veterinary Teaching Hospital attendant walked Kaisa from the
intensive care unit to the euthanasia room, euphemistically labeled the quiet room. Dr.
Margaret Cohn-Urbach then described the procedure to Repin. Cohn-Urbach advised
that Kaisa would be administered a mild sedative to relax her and thereafter dispensed
Euthasol, a drug that would stop the Malamute's heart and allow a peaceful death.
According to Dr. Cohn-Urbach, she informed Robert Repin that, as Kaisa passes, she
may have deep gasps, tremors, and other adverse effects. Repin claims Cohn-Urbach
only warned that Kaisa might take a deep breath and exhibit a slight leg twitch.
Robert Repin laid on the quiet room floor with Kaisa. Dr. Margaret Cohn-Urbach
told Robert Repin the hospital procedure would commence. According to Margaret
Cohn-Urbach and Jasmine Feist, Feist performed the euthanasia, while Cohn-Urbach
supervised. Repin contends that Cohn-Urbach performed the procedure.
According to Robert Repin, he heard Jasmine Feist exclaim: "[O]h, look, Kaisa
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has chewed off the end of her catheter, should I go get another one?" CP at 62. Margaret
Cohn-Urbach responded: "[N]o. I will show you how to still make this one work." CP at
62. Repin did not look at the catheter and never observed Kaisa chewing the catheter.
Feist and Cohn-Urbach deny any such conversation or Kaisa chewing the catheter.
Robert Repin contends that no hospital staff member flushed the catheter to ensure
patency, a medical term for open or unobstructed. Dr. Margaret Cohn-Urbach and
Jasmine Feist both declare that one of them flushed 20 milliliters (ml) of saline solution
through the catheter. Each avers that the saline flushed unimpeded and that she lacked
any concern regarding patency.
Kaisa slept on the quiet room floor when the veterinarians began the euthanasia.
After the flushing, Either Dr. Margaret Cohn-Urbach or Jasmine Feist injected 1.1 ml of
Acepromazine into the catheter. Five to ten minutes later, either Cohn-Urbach or Feist
started the second injection. Repin turned from observing the injection. Repin describes
the ensuing events:
[Kaisa] woke up screaming. She was on her feet panicking,
screaming in agony. I said, What the fuck is going on here? I said, this
can't fucking be happening. I had to wrestle [Kaisa] back to the floor. I
had to hold her down and listen to her scream. [Dr. Cohn-Urbach] and
[Feist] had backed up against the wall. They didn't know what the fuck to
do. Jasmine said, My God, it's not working. What should we do, she says?
My dog didn't know what the fuck was going on. She would have tore
those girls apart if I let go of her. All she knew was she was in fucking
pain and she wanted to get out of there and I had to hold her down ....
[Feist] said somewhere, What do we do? Should I go get another catheter?
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[Dr. Cohn-Urbach] says, I'm out of medication. I said, This can't be
fucking happening.
CP at 67-68.
According to Robert Repin, Dr. Margaret Cohn-Urbach left the quiet room and
retrieved more Euthasol. Repin believes five to seven minutes passed between the two
injections of Euthasol, during which time Kaisa constantly struggled on her two front
feet, while Repin toiled to restrain her. Kaisa's agony never ceased. On Cohn-Urbach's
return, Repin rolled Kaisa on her back to afford Cohn-Urbach a clear shot at her right
forelimb. Jasmine Feist and Repin restrained Kaisa as Cohn-Urbach injected Euthasol
into the right forelimb. Fifteen seconds later, Kaisa expired.
According to Jasmine Feist, Kaisa lifted her head and upper torso and uttered one
loud howl at the end of the first Euthasol injection. Kaisa did not scream in agony. Dr.
Margaret Cohn-Urbach leaped to her feet and exited the quiet room. Robert Repin
grabbed Kaisa around the neck and held her. Kaisa lay down and emitted large breaths.
Kaisa died after she slouched. Feist estimates Dr. Cohn-Urbach left the room for up to
two minutes.
According to Dr. Margaret Cohn-Urbach, Kaisa uttered three howls and gazed at
her left leg, which Jasmine Feist handled. Kaisa did not act violently or thrash. As Kaisa
reacted, Cohn-Urbach observed Robert Repin's unhappiness. Dr. Cohn-Urbach decided
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to hurry the euthanasia. She left the quiet room for more Euthasol and returned within
two minutes. Cohn-Urbach injected the Euthasol directly into the cephalic vein in
Kaisa's right leg. As Dr. Cohn-Urbach administered the second dose ofEuthasol, Kaisa
howled again. After the second injection, Kaisa died.
After Kaisa expired, Dr. Margaret Cohn-Urbach offered Robert Repin a trash bag
for Kaisa' s remains, a suggestion that offended Repin. Rep in removed Kaisa on a gurney
. from the Veterinary Teaching Hospital to his car, while colorfully expressing displeasure.
Dr. Margaret Cohn-Urbach wrote in her clinical notes concerning the euthanasia:
During the euthanasia procedure, Kaisa showed a reaction to the
injection of 20ml of Euthasol through an 18G catheter in the left cephalic
vein. The catheter was tested prior to injection of the Euthasol and we are
confident that it flushed fine. Kaisa only reacted to the injection when the
final 1ml was given, and showed no response while the first 19ml Euthasol
and 1.1 ml Acepromazine were given. As Kaisa was reacting to the
injection, we used the right cephalic vein to inject and this was
administered ·smoothly without delay. Kaisa again did show a reaction at
the end of the injection of the 15ml Euthasol in the right cephalic vein, even
though this was confirmed as definitely being in the vein. The left forelimb
did not appear swollen after injection, suggesting that Kaisa may have
reacted poorly to the euthanasia due to underlying intracranial and other
disease. The owner expressed anger at the situation.
CP at 212-13.
Dr. Harmon Rogers, a colleague of Dr. Margaret Cohn-Urbach, reported to a
supervisor:
At the time of euthanasia the IV catheter looked questionable. Dr.
Cohn-Urbach tested it several times and confirmed patency by flushing 20
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mls of fluid through it. The euthanasia did not go smoothly and the dog
cried out while being euthanized. That greatly upset the owner. It is
possible that the euthanasia solution was perivascular. Dr. Cohn accessed
another vein and completed the euthanasia. She was very apologetic to the
owner about the circumstances. I wonder if her apologies increased the
owner's dismay and made him believe she was more responsible for the
difficulty than might be the case. He left very upset and swearing many
times about how she had rd everything up.
CP at 131. "Perivascular" means tissue surrounding a blood vessel.
In a declaration, Robert Repin affirmed that Dr. Margaret Cohn-Urbach never
informed him of the risks of proceeding with a damaged catheter, the use of
Acepromazine alone or at an inappropriate dosage, a fourth-year student injecting
Euthasol, a high dose of Euthasol, or Kaisa responding to the procedure in distress. Had
Cohn-Urbach informed Repin of the risks, he would not have consented to the procedure
as performed at the Veterinary Teaching Hospital. He would have instead demanded a
different catheter, a proper first medication, a dilution to the Euthasol, and all injections
being performed by a licensed veterinarian.
Robert Repin reports severe emotional distress resulting from the painful
euthanasia of Kaisa. Repin now lacks patience, easily angers, suffers headaches, and
drinks alcohol to sleep.
Robert Repin hired Dr. Victoria Peterson, a licensed Washington veterinarian, as
an expert witness. In a declaration opposing WSU's summary judgment motion,
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Peterson declared that veterinarians act in a fiduciary capacity of trust and confidence.
She averred that she knows the standard of care of small animal veterinarians in the State
of Washington. Peterson opined that:
Defendant Cohn-Urbach committed veterinary medical malpractice
and breached the contract with Mr. Repin, proximately causing him
economic and noneconomic damages. Indeed I find that her acts and
omissions were cumulatively reckless and grossly negligent. In short, one
does not euthanize a dog by injecting caustic solution outside the vein,
causing her to experience tremendous fear and suffer agonizing pain for an
extended duration while she is forcibly, physically restrained by the owner
until the veterinarian can leave the room to obtain more euthanasia solution
and return to administer it properly. That is not euthanasia. It is torturous
to both the animal and her owner.
CP at 236.
Dr. Victoria Peterson faulted Dr. Margaret Cohn-Urbach for administering
Acepromazine precedent to Euthasol, because the former acts as a tranquilizer, rather
than a sedative. A tranquilizer does not alter the dog's perception to the situation, but
rather limits her ability to respond. Acepromazine may render the animal more excited,
unpredictable, and dangerous. The small dose administered to Kaisa would not have
sedated Kaisa or relieved her of any pain. According to Peterson, Margaret Cohn-Urbach
was also grossly negligent for administering a large dose of Euthasol because of the age
of Kaisa. The drug increased the risk of a geriatric dog's vein bursting such that the
caustic solution travels perivascular. Euthanasia requires only 9 ml ofEuthasol, but
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Cohn-Urbach's two injections amounted to 34 ml. Since Kaisa was an Arctic breed, Dr.
Cohn-Urbach should have warned Robert Repin that Kaisa would whine and cry upon
being euthanized. According to Peterson, Cohn-Urbach's treatment was not humane but
led to minutes of conscious pain.
Another of Robert Repin's experts, Dr. Bruce Goldberger, a forensic toxicologist,
examined Kaisa's exhumed leg after the animal's death. Goldberger determined that the
first injection of Euthasol entered Kaisa's perivascular region, a conclusion consistent
with Victoria Peterson's conclusion that Kaisa suffered from the perivascular injection.
PROCEDURE
Robert Repin sues the State of Washington, WSU, and Margaret Cohn-Urbach.
We assume that WSU and the State of Washington are the same legal entity. In the
complaint, Repin asserts six claims: breach of contract, reckless breach of contract,
professional negligence, lack of informed consent/negligent misrepresentation by
omission, intentional and/or reckless infliction of emotional distress, conversion/trespass
to chattels or trespass on the case. Repin requests reimbursement of amounts billed by
WSU for services provided and his emotional distress and loss of enjoyment of life. In
seeking emotional distress damages, Repin alleges that the "zone of danger" doctrine
applies. CP at 7. We do not read the complaint as seeking any damages for pain suffered
by Kaisa.
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The trial court granted, in part, WSU's motion for summary judgment. The trial
court dismissed reckless breach of contract, lack of informed consent/negligent
misrepresentation by omission, outrage, and conversion/trespass to chattels. The trial
court also dismissed any claim for emotional distress damages no matter the cause of
action pled. We granted discretionary review of the trial court's summary judgment
rulings.
LAW AND ANALYSIS
Reckless Breach of Contract and Noneconomic Damages
We find no case that recognizes a cause of action for reckless breach of contract
distinct from a cause of action for breach of contract. We explore, however, whether the
law may provide recovery for emotional distress or other noneconomic damages for a
breach of contract under some circumstances, including egregious conduct of the
breaching party. Robert Repin may allege reckless breach of contract in order to recover
noneconomic damages. Repin may also allege reckless breach of contract in order to
avoid the release contained in the euthanasia contract. WSU does not assert the defense
of the release in support of its summary judgment motion.
The trial court did not dismiss Robert Repin's breach of contract claim.
Therefore, we do not address whether Repin maintains a viable claim in contract. We
assume that Rep in does not seek recovery for the value of Kaisa, since regardless of any
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professional negligence, Kaisa faced death. We address, however, whether Repin may
recover noneconomic damages for the alleged breach of contract.
Robert Repin contends that noneconomic damages should be recoverable when a
veterinarian breaches, regardless of reckless conduct, a euthanasia contract because of the
distressful nature of euthanasia. He emphasizes, however, that more reason exists to
allow emotional distress damages on a reckless breach of a euthanasia contract. WSU
responds that Washington courts have not recognized recovery of emotional distress
damages for breach of a contract, even where emotional distress is foreseeable.
In general, parties cannot recover noneconomic, emotional disturbance damages
for breach of contract. RESTATEMENT (SECOND) OF CONTRACTS§ 353 (Am. Law Inst.
1981); Gaglidari v. Denny's Restaurants, Inc., 117 Wash. 2d 426, 440-48, 815 P.2d 1362
( 1991 ). An exception arises if "the contract or the breach is of such a kind that serious
emotional disturbance was a particularly likely result." RESTATEMENT (SECOND) OF
CONTRACTS§ 353. The comments explore this exception:
Common examples are contracts of carriers and innkeepers with
passengers and guests, contracts for the carriage or proper disposition of
dead bodies, and contracts for the delivery of messages concerning death.
Breach of such a contract is particularly likely to cause serious emotional
disturbance. Breach of other types of contracts, resulting for example in
sudden impoverishment or bankruptcy, may by chance cause even more
severe emotional disturbance, but, if the contract is not one where this was
a particularly likely risk, there is no recovery for such disturbance.
RESTATEMENT (SECOND) OF CONTRACTS§ 353 cmt. a.
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Both parties cite extensively to Gaglidari. Repin argues that Gaglidari embraced
a broadened understanding of recovery for emotional damages in breach of contract
cases. WSU responds this is a complete misstatement of Gaglidari, which did not
expand recovery for breach of contract.
In Gaglidari v. Denny's Restaurants, Inc., 117 Wash. 2d 426 (1991), Denny's hired
Ronda Gaglidari, in 1980, to be a bartender for their Tukwila store. A fight broke out at
the Denny's restraunt. Denny's fired Gaglidari as a result of the altercation. Gaglidari
sued Denny's for, among other things, breach of contract. Following a trial, the jury
returned a verdict awarding Gaglidari $55,000 in economic damages and $75,000 in
noneconomic damages. Denny's appealed. The Washington Supreme Court determined
that it was inappropriate to award emotional distress damages in this context. In doing
so, the court explored Washington common law, other states' common law, public policy,
and the Restatement of Contracts. The court wrote:
... [B]y allowing emotional damages whenever they are a
foreseeable result of the breach, the traditional predictability and economic
efficiency associated with contract damages would be destroyed. In order
to avoid the unpredictable and destabilizing results of such an approach,
most courts have generally limited emotional distress damages to contracts
uniquely intended to protect some personal interest or security and which
are incapable of compensation by reference to the terms of the contract.
It is easily predictable there would be a jury issue on emotional
distress in nearly every employee discharge case and in fact nearly every
breach of contract case. The contractual consensus of the parties will
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become secondary to an action in tort. This will represent a profound
change in the law, the implication of which probably can be explained only
by adverting to the "Law of Unintended Consequences." Ifthere is to be a
change in the common law, we believe a more prudential approach would
be for the Legislature to consider the matter prior to such a change
occurring.
Gaglidari, 117 Wash. 2d 446, 448.
In 2013, this court decided the more analogous Hendrickson v. Tender Care
Animal Hospital, Corp., 176 Wash. App. 757, 312 P.3d 52 (2013). In Hendrickson, Julie
Hendrickson brought her golden retriever, Bear, to Tender Care for neutering and
implanting of a microchip. Following the procedure, veterinarian Kristen Cage noticed
Bear's abdomen as swollen. Cage ordered x-rays to rule out gastric dilation volvulus.
When Cage examined Bear's x-rays, she noticed significant gastric distention but no
volvulus. Tender Care sent Bear home with instructions on how to treat gastric
distention. Bear eventually died, likely from gastric dilation volvulus. Hendrickson sued
Tender Care, in part, for reckless breach of bailment contract. The trial court dismissed
the reckless breach of bailment contract and emotional distress damages. This court
affirmed. This court wrote:
[A]lthough the Washington cases Hendrickson cites recognize the
existence of emotional suffering resulting from the injury to or loss of a
companion animal, those cases uniformly recognize the historic treatment
of those animals as property under Washington law and the limitation on
emotional distress damages for such injury except in cases of malicious or
intentional infliction of injury to those animals. In fact, Hendrickson has
failed to submit, and this court is not aware of, any Washington case
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applying the Restatement rule and creating a claim for emotional distress
damages arising out of a contract action.
Hendrickson, 176 Wash. App. at 767.
Robert Repin cites to cases from Michigan and Louisiana to support his contention
that he can recover emotional distress damages for breach of contract. Lane v.
KinderCare Learning Centers, Inc., 231 Mich. App. 689,588 N.W.2d 715 (1998); Smith
v. University Animal Clinic, Inc., 09-745 (La. App. 3 Cir. 2/10/10), 30 So. 3d 1154;
Barrios v. Safeway Insurance Co., 2011-1028 (La. App. 4 Cir. 3/21/12), 97 So. 3d 1019.
Louisiana law lacks persuasive authority because its Napoleonic code allows recovery of
damages in breach of contract for nonpecuniary losses. LOUISIANA CIVIL CODE art.
1998. The Michigan decision helps Repin some, but we remain bound by Washington
precedence. Under Washington law, recovery of emotional disturbance damages for
breach of contract is generally not recoverable. Therefore, the trial court did not err in
limiting Repin's potential recovery for breach of contract to economic damages.
Professional Negligence, Noneconomic Damages, and Zone of Danger
The trial court did not dismiss Robert Repin' s claim for veterinarian negligence,
but ruled that Robert Repin cannot recover for his emotional distress under this cause of
action. On appeal, Repin argues that the trial court erred in denying him recovery of
noneconomic damages based on his position in the "zone of danger" of the traumatic
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incident ofKaisa's painful death and based on the theory of negligent infliction of
emotional distress. We address each argument separately starting with the zone of danger
doctrine.
In 1962, the Washington Supreme Court adopted a zone of danger test to
determine whether a bystander may recover for emotional distress caused by the
defendant's negligence. Murphy v. City of Tacoma, 60 Wash. 2d 603, 620-21, 374 P.2d 976
(1962). With the adoption of this criterion, the plaintiff need not establish physical
impact to her body in order to recover for emotional distress. Nevertheless, the "zone of
danger" measure requires either an immediate physical invasion of the plaintiffs person
or security or a direct possibility of such an invasion in order that recovery may be had
for mental anguish. Murphy v. City of Tacoma, 60 Wash. 2d at 620-21.
Under the later creation of a cause of action for negligent infliction of emotional
distress, Washington recognized a broader rule whereby the bystander may recover for
emotional distress regardless of the possibility of invasion of her body space. Hunsley v.
Giard, 87 Wash. 2d 424, 435, 553 P.2d 1096 (1976); Hegel v. McMahon, 136 Wash. 2d 122,
126,960 P.2d 424 (1998). The zone of danger doctrine still holds relevance, however.
Under the zone of danger standard, the plaintiff need not prove objective symptoms to
recover emotional distress damages. Wilson v. Key Tronic Corp., 40 Wash. App. 802, 809-
10, 701 P.2d 518 (1985); McRae v. Bolstad, 32 Wn. App. 173,178,646 P.2d 771 (1982)
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I ajf'd, 101 Wn.2d 161,676 P.2d 496 (1984). A plaintiff, in a negligent infliction of
emotional distress cause of action, must establish objective symptomatology. Corrigal v.
Ball and Dodd Funeral Home, Inc., 89 Wn.2d 959,962, 577 P.2d 580 (1978); Hunsley v.
Giard, 87 Wash. 2d at 436 (1976); Wilson v. Key Tronic Corp., 40 Wash. App. at 810.
Robert Repin claims he lodged within the zone of danger because he watched his
beloved Malamute experience an agonizing death and because the conduct exposed him
to grievous bodily harm from Kaisa. We explore these alternate contentions in such
I order. Ifhe is correct with regard to either contention, he need not show objective
symptoms of emotional distress.
Washington has never addressed the applicability of the zone of danger rule to a
medical or veterinarian malpractice claim. Other jurisdictions deny such a claim. We
follow the other American jurisdictions.
lI In Owens v. Childrens Memorial Hospital, Omaha, Nebraska, 480 F .2d 465 (8th
Cir. 1973), parents alleged that health care providers at the defendant hospital negligently
diagnosed and treated their son. They asserted that they remained in close proximity to
their son throughout the period of his hospitalization and that they personally witnessed
the malpractice of the providers and the physical and mental suffering of their son. They
further alleged that, as a direct and proximate result of the negligence, they suffered
physical and mental anguish, great emotional disturbance, and shock to their respective
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nervous systems. The reviewing court affirmed the lower court's dismissal on the
pleadings. The court reasoned in part that the parents were not within the zone of
physical danger. The court was reluctant to extend the liability of health care providers
beyond the patient.
In Squeo v. Norwalk Hosp. Association, 316 Conn. 558, 113 A.3d 932 (2015),
parents brought action against a nurse and the hospital for medical malpractice, alleging
that the defendants negligently discharged their suicidal son after the nurse conducted an
emergency psychiatric examination. The parents found the son hanging in their front
yard. The Connecticut court affirmed summary judgment dismissal of the claim. The
court noted that bystander medical malpractice claims will rarely if ever arise under a
zone of danger rule, as it is the rare form of medical malpractice that would pose a
physical threat to bystanders.
Finally in Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76 (Tex. 1997),
Oscar Trevino alleged that he suffered severe mental anguish after witnessing the
negligent treatment of his wife. Trevino argued that he should be permitted to recover
mental anguish damages against the hospital as a bystander to the wife's treatment. The
Texas high court denied recovery, in part, from fear that hospitals might curtail patient
visitation to prevent bystander suits. The very nature of medical treatment is traumatic to
the layperson. Even when a medical procedure proves beneficial to the patient, the
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procedure may shock the senses of the ordinary bystander who witnesses it.
We note that California and New Jersey promote a contrary view. Ochoa v.
Superior Court, 39 Cal. 3d 159, 703 P.2d 1, 216 Cal. Rptr. 661 (1985); Gendek v. Poblete,
139 N.J. 291, 654 A.2d 970 (1995). Nevertheless, other courts allow recovery for only
those bystanders who are within the zone of danger and suffer emotional distress as a
result of a reasonable fear of a physical injury to themselves, a factor we discuss below.
Asaro v. Cardinal Glennon Memorial Hospital, 799 S.W.2d 595, 599 (Mo. 1990);
Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138,425 A.2d 92, 95
(1980). We accept the reasoning employed in Texas, Connecticut, and Nebraska.
We might reverse dismissal of the negligence claim based on Robert Repin's fear
for his own physical safety. Nevertheless, Repin presents no evidence of such fear. CR
56(e) reads, in pertinent part:
... an adverse party may not rest upon the mere allegations or
denials of a pleading, but a response, by affidavits or as otherwise provided
in this rule, must set forth specific facts showing that there is a genuine
issue for trial. If the adverse party does not so respond, summary judgment,
if appropriate, shall be entered against the adverse party.
A complete failure of proof concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S.
317,323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
In his testimony, Robert Repin mentioned that he needed to wrestle Kaisa to the
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floor. Dr. Margaret Cohn-Urbach and Jasmine Feist cowered against the wall. Kaisa
would have attacked the two women if Repin did not restrain her. Repin did not testify of
any fear that Kaisa would harm him. He failed to place himself in a zone of danger.
Therefore, as a matter of law, he cannot sustain a claim for his emotional distress
resulting from WSU's alleged professional negligence.
Negligent Infliction of Emotional Distress
Robert Repin does not expressly plead a cause of action for negligent infliction of
emotional distress. Therefore, WSU contends that Repin may not claim error on appeal
for a phantom claim. In response, Repin urges us to review a claim for negligent
infliction because WSU did not assert this contention before the trial court. We disagree.
WSU asserted this argument in its trial court reply brief. We note that an issue raised and
argued for the first time in a reply brief is generally too late to warrant consideration.
Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549 (1992).
Nevertheless, WSU may have lacked knowledge ofRepin's asserting the claim until
Repin filed his memorandum responding to WSU's summary judgment motion.
WSU's attempt to preclude consideration of any cause of action for negligent
infliction of emotional distress begs several questions. Is a claim for negligent infliction
of emotional distress encompassed in a claim for negligence? Should WSU, before
Robert Repin filed his brief responding to WSU's summary judgment motion, have
20
No. 34049-0-111
Repin v. State of Washington
known that Repin sought to recover for negligent infliction of emotional distress? May
the trial court allow an implied amendment, pursuant to CR 15(b), when the plaintiff
raises a new cause of action in a summary judgment response brief? We decide to ignore
these questions and address whether Repin identified facts sufficient to sustain a
negligent infliction of emotional distress claim in response to WSU' s summary judgment
motion. We rule in favor of WSU on this issue so the university suffers no prejudice by
addressing the merits of the claim.
The tort of negligent infliction of emotional distress encompasses three elements:
( 1) the emotional distress is within the scope of foreseeable harm of the negligent
conduct, (2) the plaintiff reasonably reacted given the circumstances, and (3) objective
symptomatology confirms the distress. Bylsma v. Burger King Corp., 176 Wash. 2d 555,
560, 293 P.3d 1168 (2013). Under the tort, a plaintiff who suffers mental distress without
physical injury may have a cause of action. Hunsley v. Giard, 87 Wash. 2d at 431; Pickford
v. Masion, 124 Wash. App. 257, 259, 98 P.3d 1232 (2004). No absolute boundary
surrounds the class of persons whose peril may stimulate the mental distress. Hunsley v.
Giard, 87 Wash. 2d at 436.
We focus on the third element of the tort of negligent infliction of emotional
distress. According to the third element, a plaintiff must prove he suffered emotional
distress by objective symptomatology and the emotional distress must be susceptible to
21
No. 34049-0-111
Repin v. State of Washington
medical diagnosis and proved through medical evidence. Kloepfel v. Bokor, 149 Wash. 2d
192, 196-97, 66 P.3d 630 (2003); Hegel v. McMahon, 136 Wash. 2d at 134-35.
In response to a summary judgment motion, the adverse party may not rest on the
mere allegations or denials of a pleading, but a response by affidavits must present
specific facts showing a genuine issue for trial. CR 56( e). In response to WSU' s
summary judgment motion, Robert Repin omitted any facts showing objective symptoms
of stress.
WSU also argues that Washington law refuses to extend the cause of action for
negligent infliction of emotional distress to distress suffered due to injury to a pet. For
example, in Pickford v. Masion, 124 Wash. App. 257 (2004), this court denied recovery to
a pet owner, whose dog was mauled by other dogs, of damages for emotional distress and
loss of the human-animal companionship. Gina Pickford alleged negligent and malicious
infliction of emotional distress. Hendrickson v. Tender Care Animal Hospital Corp., 176
Wash. App. 757 (2013) and Sherman v. Kissinger, 146 Wash. App. 855, 873, 195 P.3d 539
(2008) also appear to follow a strict rule that denies a pet owner emotional distress
damages for loss of a human-animal bond based on the negligent death or injury to a pet.
We do not know if this rule extends to emotional distress suffered as a result of observing
one's pet suffer. Nevertheless, we need not base our decision on the nature of Robert
Repin's claim. Robert Repin provides no evidence of objective symptomatology.
22
No. 34049-0-111
Repin v. State of Washington
Outrage
Robert Repin contends that the trial court erred in dismissing his outrage claim.
WSU argues that Repin failed to establish that WSU's conduct was outrageous as a
matter of law. We agree with WSU.
The tort of outrage is synonymous with a cause of action for intentional infliction
of emotional distress. Kloepfel v. Bokor, 149 Wash. 2d 192, 194-95 (2003); Snyder v.
Medical Service Corp. ofEastern Washington, 145 Wn.2d 233,250, 35 P.3d 1158
(2001 ). In order to make a prima facie case of intentional infliction of emotional distress,
a plaintiff seeking to survive summary judgment must produce evidence showing three
elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of
emotional distress, and (3) actual result to the plaintiff of severe emotional distress.
Kloepfel v. Bokor, 149 Wash. 2d at 195 (2003); Grimsby v. Samson, 85 Wash. 2d 52, 59,530
P .2d 291 ( 197 5). Contrary to negligent infliction of emotional distress, the plaintiff need
not establish objective symptomatology of the distress. Kloepfel v. Bokor, 149 Wash. 2d at
196-98. The law assumes that intentional, rather than negligent, conduct of the defendant
leads to severe emotional distress. Kloepfel v. Bokor, 149 Wash. 2d at 202.
Under Washington law, a pet owner may have no right to emotional distress
damages or damages for loss of a human-animal bond based on the negligent death or
injury to a pet. Sherman v. Kissinger, 146 Wash. App. at 873 (2008). Nevertheless,
23
No. 34049-0-111
Repin v. State of Washington
recovery for emotional distress is possible for malicious or intentional injury to a pet.
Womack v. Von Rardon, 133 Wash. App. 254, 263, 135 P.3d 542 (2006); Pickford v.
Masion, 124 Wash. App. at 261 (2004).
This appeal focuses on element one of the tort. Extreme and outrageous conduct
must be conduct that the recitation of the facts to an average member of the community
would arouse his resentment against the actor and lead him to exclaim "Outrageous!"
Kloepfel v. Bokor, 149 Wash. 2d at 196; Reid v. Pierce County, 136 Wash. 2d 195, 201-02,
961 P.2d 333 (1998); Grimsby v. Samson, 85 Wash. 2d at 59 (1975). Liability exists only
when the conduct has been so outrageous in character and extreme in degree as to go
beyond all possible bounds of decency and to be regarded as atrocious and utterly
intolerable in a civilized community. Grimsby, 85 Wash. 2d at 59.
Generally, the elements of a claim for intentional infliction of emotlonal distress
are questions of fact. Strong v. Terrell, 147 Wash. App. 376, 385, 195 P.3d 977 (2008).
On summary judgment, however, a trial court must make an initial determination as to
whether the conduct may reasonably be regarded as so extreme and outrageous as to
warrant a factual determination by the jury. Sutton v. Tacoma School District No. JO,
180 Wash. App. 859, 869, 324 P.3d 763 (2014); Strong v. Terrell, 147 Wash. App. at 385.
No case suggests that the standard to defeat a summary judgment motion is harsher for
plaintiffs asserting outrage claims than plaintiffs in other tort suits. Nevertheless,
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No. 34049-0-111
Repin v. State of Washington
Washington courts, like other courts, have considered themselves gatekeepers for
purposes of allowing a jury to decide claims of intentional infliction of emotional
distress. Christian v. Tohmeh, 191 Wash. App. 709, 736, 366 P.3d 16 (2015), review
denied, 185 Wash. 2d 1035, 377 P.3d 744 (2016). The trial court and, in tum, the appeals
court, renders an initial screening to determine whether the defendant's conduct and
mental state, together with the plaintiffs mental distress, rise to the level necessary to
make out a prima facie case. Benoy v. Simons, 66 Wash. App. 56, 63, 831 P .2d 167 (1992);
Orwickv. Fox, 65 Wash. App. 71, 87-88, 828 P.2d 12 (1992). The requirement of
outrageousness is not an easy one to meet. Christian v. Tohmeh, 191 Wash. App. at 736.
The level of outrageousness required is extremely high. Reigel v. SavaSeniorCare LLC,
292 P.3d 977, 990 (Colo. Ct. App. 2011).
Washington may be the only jurisdiction with a reported decision involving a
claim for outrage attended to veterinarian care. Baechler v. Beaunaux, 167 Wash. App.
128, 272 P.3d 277 (2012). Nevertheless, this court affirmed with little discussion the trial
court's summary dismissal of the claim because the claimant presented no evidence that
the defendant veterinarian violated the standard of care. So, we evaluate Robert Repin's
cause of action for outrage by reviewing decisions involving physicians.
In Benoy v. Simons, 66 Wash. App. 56 (1992), Saundra Benoy sued neonatologist
Robert Simon for intentional infliction of emotional distress. Benoy gave birth to a
25
No. 34049-0-111
Repin v. State of Washington
severely disabled premature child at Kadlec Medical Center in Richland, where Dr.
Simon provided care. When the infant's condition deteriorated, Dr. Simon transferred
him to Children's Orthopedic Hospital in Seattle, where the boy later died. Benoy
contended that Simon needlessly pressured her family to create a guardianship,
maintained the infant needlessly on life support, led her to believe her son's condition
improved when it deteriorated, told her to bring her son's body home on a bus, and billed
her for needless care. This court affirmed summary judgment in favor of Dr. Simon.
Even assuming the events occurred as described by Benoy, the physician's conduct did
not fall within the perimeters of outrageous conduct.
In Christian v. Tohmeh, 191 Wash. App. 709 (2015), Diane Christian presented
eyidence that Dr. Antoine Tohmeh engaged in a pattern of intentional behavior to
obfuscate a true diagnosis of Christian's neurological deficits in an attempt to avoid legal
liability; referred Christian to a neurologist but not ordering nerve conductions studies at
the level of spine of her pain; yelled and shouted at her; told Christian that she had no
neurological deficits, her problems were all in her head, and whatever was wrong would
have happened anyway; implied to Christian that she was lazy and obese; spoke angrily
to Christian's later treating physician and attempted to influence the physician's
diagnosis; told the second physician that Christian suffered from significant emotional or
psychological issues that rendered Christian's history less valid; and referred Christian to
26
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No. 34049-0-III
Rep in v. State of Washington
l a urologist, who found a neurogenic bladder, yet told Christian that the urologist's
l findings were normal. This court affirmed a summary judgment dismissal of the claim
against Dr. Tomeh. In doing so, we reviewed decisions, from other jurisdictions, in
which the appellate courts also dismissed claims of outrage against a physician. Reigel v.
SavaSeniorCare LLC, 292 P.3d 977 (Colo. Ct. App. 2011); Cangemi v. Advocate South
Suburban Hospital, 364 Ill. App. 3d 446, 845 N.E.2d 792, 300 Ill. Dec. 903 (2006);
Harris v. Kreutzer, 271 Va. 188, 624 S.E.2d 24 (2006); Hart v. Child's Nursing Home
Co., 298 A.D.2d 721, 749 N.Y.S.2d 297 (2002); Albert v. Solimon, 252 A.D.2d 139, 684
N.Y.S.2d 375 (1998), aff'd, 94 N.Y.2d 771, 721 N.E.2d 17, 699 N.Y.S.2d 1 (1999); C.M
v. Tomball Regional Hospital, 961 S.W.2d 236 (Tex. App. 1997).
The conduct of Dr. Margaret Cohn-Urbach, viewed in a light most beneficial to
Robert Repin, at best shows gross negligence. None of the conduct leads to a reasonable
person uttering "outrageous." We conclude that Repin has failed to show outrageous
conduct.
Trespass to Chattels
Robert Repin argues that he established a prima facie case for an intentional tort
along the trespass-conversion spectrum. We are unacquainted with such a spectrum so
we address each theory separately beginning with trespass.
27
No. 34049-0-111
Repin v. State of Washington
In his brief, Robert Repin cites only Restatement (Second) Torts §§ 226, 227, and
228 (Am. Law Inst. 1965) in his discussion about trespass and conversion. Each
Restatement section concerns conversion alone. Although we recognize a cause of action
for trespass to chattel, Repin cites no authority to support a claim for trespass to chattel
under the circumstances on appeal. Therefore, we affirm the summary judgment
dismissal of the claim.
RAP 10.3(a)(6) directs each party to supply, in his brief, "argument in support of
the issues presented for review, together with citations to legal authority and references to
relevant parts of the record." This court does not review errors alleged but not supported
with citation to authority. Valente v. Bailey, 74 Wn.2d 857,858,447 P.2d 589 (1968);
Meeks v. Meeks, 61 Wash. 2d 697, 698, 379 P.2d 982 (1963); Avellaneda v. State, 167 Wn.
App. 474,485 n.5, 273 P.3d 477 (2012). Appellate courts are precluded from
considering such alleged errors. Hollis v. Garwall, Inc., 137 Wash. 2d 683, 689 n.4, 974
l P.2d 836 (1999); Escude v. King County Public Hospital District No. 2, 117 Wash. App.
I 183, 190 n.4, 69 P.3d 895 (2003).
!
Conversion
Robert Repin argues that Dr. Margaret Cohn-Urbach without authorization
1
Il intermeddled with his property rights in Kaisa in a manner inconsistent with his express
j
j
I
j and contracted instructions to humanely euthanize Kaisa. Under Repin's version of the
28
No. 34049-0-III
Rep in v. State of Washington
facts, Dr. Cohn-Urbach utilized a damaged catheter and pompously admonished Jasmine
Feist to complete the euthanasia with the impaired instrument. Repin argues that Cohn-
Urbach's insistence on use of the compromised catheter constituted an intentional act that
caused the Euthasol to enter Kaisa's perivascular region with the result of tremendous
pain to the Malamute. His physician and veterinarian experts support this claim.
According to Repin, Cohn-Urbach's actions deprived both Kaisa and Repin of the
expected results of euthanasia.
Robert Rep in further argues that the fundamental nature of his transaction with
WSU was to destroy his property in a humane manner and without undue pain and
suffering according to sound veterinary principles. The euthanasia form signed by Repin
authorized the Veterinarian Teaching Hospital to humanely destroy Kaisa. When WSU
failed to fulfill this purpose, the veterinarian hospital converted Repin's property, Kaisa.
WSU argues that Repin's authorization of the demise ofKaisa thwarts a cause of
action for conversion. WSU emphasizes the nebulous nature ofRepin's claim.
We must decide if a veterinarian commits a conversion in the civil law when the
veterinarian engages in gross negligence during treatment of a companion animal or
when the veterinarian disobeys instructions for care of the animal. We find no case law
directly applicable. Because we conclude that Robert Repin's claim does not fulfill the
letter or purpose behind the cause of action for conversion, we reject his claim for
29
No. 34049-0-111
Repin v. State of Washington
conversion as a matter of law.
Under modem jurisprudence, conversion is the unjustified, willful interference
with a chattel that deprives a person entitled to the property of possession. Potter v.
Washington State Patrol, 165 Wash. 2d 67, 78, 196 P.3d 691 (2008); In re Marriage of
Langham & Ko/de, 153 Wash. 2d 553, 564, 106 P.3d 212 (2005). Conversion is the act of
willfully interfering with any chattel, without lawful justification, whereby any person
entitled thereto is deprived of the possession of it. Washington State Bank v. Medalia
Healthcare LLC, 96 Wash. App. 547, 554, 984 P.2d 1041 (1999); Consulting Overseas
Management, Ltd. v. Shtikel, 105 Wash. App. 80, 83, 18 P.3d 1144 (2001).
An essential element of conversion is the taking of possession, actual or
constructive, of the chattel. Martin v. Sikes, 38 Wn.2d 274,287,229 P.2d 546 (1951). In
its ordinary sense, conversion means to take and keep another's property. Hess v.
Starwich, 149 Wash. 679, 684, 272 P. 75 (1928). Nevertheless, even a willful or an
unlawful taking will not always amount to conversion. Clark v. Groger, 102 Wash. 188,
194, 172 P. 1164 (1918). There must be some assertion of right or title hostile to the true
owner. Clarkv. Groger, 102 Wash. at 194.
We observe that the essence of conversion is the dispossession of property from
the rightful owner. We note that Robert Repin lay next to or held Kaisa during the
euthanasia. Dr. Margaret Cohn-Urbach never sought title or possession of the Malamute.
30
No. 34049-0-III
Rep in v. State of Washington
Repin never relinquished possession ofKaisa. Although Repin strongly objects to the
care given by Cohn-Urbach, he agreed to some care being given.
The most analogous Washington decision involving care of a companion animal is
Sherman v. Kissinger, 146 Wash. App. 855 (2008). Nevertheless, Sherman provides no
legal assistance. Arlene Sherman brought her dog Ruby to a veterinarian hospital to
obtain a urine sample to determine if Ruby suffered from a urinary infection. The
hospital receptionist informed Sherman that the hospital would collect the urine sample
by placing a sheath under Ruby's cage. Nevertheless, veterinarian Jennifer Kissinger
took the sample by inserting a needle into the urinary bladder. No one warned Sherman
of the use of a needle. When inserting the needle, the veterinarian drew blood, rather
than urine. Kissinger immediately removed the needle, applied pressure to the puncture
area, and returned Ruby to her cage. Ruby died one minute later. Sherman sued for
breach of bailment contract, negligent misrepresentation, conversion, trespass to chattels,
and breach of fiduciary duty. The trial court dismissed on the ground that the medical
malpractice act, chapter 7.70 RCW, controlled and did not afford recovery for Sherman's
claims. This court reversed and held that the act does not apply to veterinarians and
veterinary clinics. We reinstated all claims, including the claim for conversion. But we
qualified the holding by observing that we did not decide whether any of the claims were
viable.
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No. 34049-0-111
Repin v. State of Washington
Washington courts have never applied those sections of Restatement (Second) of
Torts addressing conversion, but both Robert Repin and WSU cite some of those
sections. To excuse its conduct, WSU relies on Restatement (Second) of Torts§ 252,
which reads:
One who would otherwise be liable to another for trespass to a
chattel or for conversion is not liable to the extent that the other has
effectively consented to the interference with his rights.
Robert Repin counters with a different section of the Restatement.
One who is authorized to make a particular use of a chattel, and uses
it in a manner exceeding the authorization, is subject to liability for
conversion to another whose right to control the use of the chattel is thereby
seriously violated.
RESTATEMENT (SECOND) OF TORTS§ 228.
Restatement (Second) of Torts§ 228 lists many examples in an attempt to breathe
living meaning into the static words of the section. None of the examples given under
§ 228, however, concern gross negligence or failure to follow contract instructions when
caring for an animal. None of the examples involve the owner of the property retaining
possession of the property while the defendant performs services on the property. The
examples involve putting the chattel to a significant use other than authorized, such as
one renting a car that ferries passengers, but using the car to haul heavy freight. In all
examples, the defendant exclusively possessed the chattel and applied the chattel to her
32
I
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No. 34049-0-III
Rep in v. State of Washington
own use. Dr. Margaret Cohn-Urbach never sought to use Kaisa for her own pleasure.
Cohn-Urbach never assumed complete physical control ofKaisa.
Although more than a century old, the Washington case most analogous in which
the court reviewed the law of conversion is Spokane Grain Co. v. Great Northern
Express Co., 55 Wash. 545, 104 P. 794 (1909). The grain company hired the defendant
railway to transport fourteen horses from St. Paul to Seattle. The grain company
provided its own car for the journey. During the trip, hay in the horse car caught fire and
seriously injured two horses. The grain company later blamed the fire on sparks from the
train's engine. The railway company blamed the fire on the faulty car provided by the
grain company. During a stop in Spokane, the railway company removed the two horses
to attend to their injuries. One horse died within days. The other horse recovered and
completed the train trek to Seattle. The grain company sued the railway company for
conversion of the two horses. The trial court denied a directed verdict requested by the
railway. The jury awarded the grain company $360.
On appeal, the Great Northern Express Company argued that no evidence
supported a claim for conversion. The Supreme Court agreed, reversed the verdict, and
directed judgment for the railway. The Supreme Court observed that the grain company
might have a claim for negligence against the railway in conducting the train or caring for
the horses or a claim for breach of contract, but not for conversion. The railway never
33
No. 34049-0-111
Repin v. State of Washington
sought title to the horses or to permanently deprive the grain company of possession of
the equines.
Lack of Informed Consent
Robert Rep in' s complaint pleads as one cause of action "lack of informed
consent/negligent misrepresentation by omission." We know of no such conglomerated
cause of action. We do not consider the sum of the stated cause of action to be greater
than its parts. We analyze the pled cause of action's constituent parts as separate causes
of action.
Robert Rep in contends that lack of informed consent in the context of veterinary
care is a creature of common law and its lack of codification does not affect its vitality.
He testified that he would not have authorized the methods employed by the Veterinary
Teaching Hospital such as veterinary student injections, use of Acepromazine alone and
in an insufficient dose, failure to flush the catheter, use of a damaged catheter,
administration ofEuthasol perivascularly, and a failure to store a second dose ofEuthasol
in the quiet room for a hasty second injection. WSU argues that lack of informed consent
does not exist in the context ofveterinary practice. We agree with WSU.
RCW 7.70.050 recognizes a duty of a physician to inform a human patient of
material facts relating to treatment, and the statute acknowledges a cause of action for
informed consent. Robert Repin recognizes that chapter 7.70 RCW, addressing actions
34
No. 34049-0-III
Rep in v. State of Washington
for injury resulting from health care, does not apply to claims against veterinarians.
Sherman v. Kissinger, 146 Wash. App. at 869 (2008). Repin instead contends that a claim
for informed consent arises from common law, the health care act codified the claim in
the context of human care, and the act imposes no restrictions on an informed consent
claim against a veterinarian. We agree with the first two arguments. We must decide if
Washington recognizes a claim for lack of informed consent for animal health care
treatment.
Robert Repin concedes that no Washington decision recognizes a cause of action
for informed consent in the setting of animal treatment. He contends that other
jurisdictions recognize the claim. We question this argument.
Robert Repin cites Henry v. Zurich American Insurance Co., 2012-888 (La. Ct.
App. 3 Cir. 2/6/13), 107 So. 3d 874. The Henry court recognized that its courts had held
that the standards in medical malpractice actions controlled veterinarian malpractice
cases. Nevertheless, Louisiana's Napoleonic code expressly incorporated medical
malpractice standards to veterinarian malpractice suits. The owners of a horse sued a
veterinarian after a minor surgery that led to the death of the equine. The horse's trainer,
not the owners, consented to treatment. The owners sought liability against the
veterinarian for failing to obtain their consent to the surgery. The trial court ruled in
favor of the veterinarian, and the appellate court affirmed. Both courts noted that the
35
t
No. 34049-0-111
Repin v. State of Washington
owners presented no proof that the veterinarian's care fell below the standard of care, and
the owners omitted any testimony that they would not have consented to the procedure if
granted an opportunity to consent. The court assumed that the doctrine of informed
consent applied to suits against a veterinarian. Nevertheless, the claim surrounded the
alleged failure to gain any consent, not a failure of the veterinarian to disclose material
risks, the heart of an informed consent claim.
Robert Repin also cites Zimmerman v. Robertson, 259 Mont. 105, 854 P.2d 338
(1993). During trial, the other Robert Zimmerman attempted to question the defendant
veterinarian on whether the veterinarian obtained Zimmerman's informed consent to an
allegedly risky surgery. The trial court excluded testimony on informed consent because
Zimmerman failed to plead a cause of action for informed consent and pleading medical
malpractice did not suffice. The Montana court never directly addressed whether the
owner of an animal can maintain a cause of action for informed consent.
Next Robert Repin cites Hoffa v. Bimes, 954 A.2d 1241 (Pa. Super. 2008). Robert
Hoffa sued a veterinarian who performed an abdominal tap on Hoffa's horse. Like Henry
v. Zurich American Insurance Co., the claim surrounded the lack of any consent rather
than informed consent. The court dismissed the claim because the veterinarian
performed the tap in an emergency. The court never expressly adopted informed consent
in the context of a claim against a veterinarian.
36
No. 34049-0-III
Repin v. State of Washington
Loman v. Freeman, 375 Ill. App. 3d 445, 874 N.E.2d 542, 314 Ill. Dec. 446
(2006), aff'd, 229 Ill. 2d 104, 890 N.E.2d 446, 321 Ill. Dec. 724 (2008) also involves the
failure to gamer any consent for surgery on a horse. Unreported cases cited by Robert
Repin do not necessarily support his position either. We choose not to rely on unreported
decisions anyway.
We recognize sound reasons for permitting a claim for informed consent when the
veterinarian fails to divulge relevant facts. Veterinarian literature encourages
practitioners to disclose pertinent information to an animal's owner before prescribing
and performing treatment. One's autonomy by virtue of being human, a rationale behind
•
informed consent, may not be a concern. Nevertheless, veterinarians should be
encouraged to disclose material risks so an owner may make informed decisions
regarding the care of companion animals.
As noted by Robert Repin, Washington licenses veterinarians similar to the
manner by which it licenses health care providers for humans. Chapter 18.92 RCW.
Veterinary science is a profession, the practice of which includes prescribing or
administering drugs, performing operations, and applying treatments in order to cure.
RCW 18.92.010; Baechler v. Beaunaux, 167 Wash. App. 128 (2012).
Still, the principle rationale of patient sovereignty behind informed consent
clumsily fits in the context of animal care. Under the doctrine of informed consent, a
37
No. 34049-0-111
Rep in v. State of Washington
health care provider has a fiduciary duty to disclose relevant facts about the patient's
condition and the proposed course of treatment so that the patient may exercise the right
to make an informed health care decision. Stewart-Graves v. Vaughn, 162 Wash. 2d 115,.
122, 170 P.3d 1151 (2007). The doctrine of informed consent refers to the requirement
that a physician, before obtaining the consent of his or her patient to treatment, inform the
patient of the treatment's attendant risks. Crawfordv. Wojnas, 51 Wash. App. 781, 782,
754 P.2d 1302 (1988). The doctrine is premised on the fundamental principle that every
human being of adult years and sound mind has a right to determine what shall be done
with his own body. Crawford v. Wojnas, 51 Wash. App. at 782-83; Schloendorff v. Society
ofNew York Hospital, 211 N.Y. 125, 129, 105 N.E. 92 (1914), abrogated on other
grounds by Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3, 163 N.Y.S.2d 3 (1957). A
necessary corollary to this principle is that the individual be given sufficient information
to make an intelligent decision. Smith v. Shannon, 100 Wash. 2d 26, 29-30, 666 P.2d 351
(1983); Canterbury v. Spence, 150 U.S. App. D.C. 263,464 F.2d 772, 783 (1972). In
Crawford v. Wojnas, this court denied a mother's informed consent claim against a
physician, who administered a vaccination to the mother's child, because the duty to
disclose was only for the child, the patient.
In the context of veterinarian care, the party suing is not the patient. The sentient
being undergoing the treatment lacks the ability to reason and decide a course of care.
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No. 34049-0-111
Repin v. State of Washington
We also find that no foreign state has definitively adopted informed consent as a cause of
action against a veterinarian.
We recognize that novelty does not necessarily prevent an intermediate appeals
court from the application of a cause of action never recognized in this State. Hoffman v.
Dautel, 189 Kan. 165, 168, 368 P.2d 57 (1962). Nevertheless, we proceed with the
I
utmost caution and deliberateness in the face of such a request. Hester v. Hubert Vester
Ford, Inc., 239 N.C. App. 22, 31, 767 S.E.2d 129 (2015). We consider the expansion of
duties under the law to be better addressed by our Supreme Court or the legislature, who
can engage in a cost-benefit analysis to determine if public policy warrants the expansion.
Ritchie v. Rupe, 443 S.W.3d 856, 878 (Tex. 2014). We encourage our Supreme Court, in
the appropriate case, to determine whether to permit a claim against a veterinarian for
failure to obtain informed consent from an animal's owner.
Negligent Misrepresentation by Omission
Robert Repin argues that he presented facts supporting a case for negligent
misrepresentation by omission. He argues that, because of a fiduciary or special
relationship between Kaisa and him, on the one hand, and Dr. Margaret Cohn-Urbach, on
the other hand, Cohn-Urbach held a duty to affirmatively disclose information concerning
the proposed course of treatment. WSU contends that Repin's negligent
misrepresentation by omission claim fails as matter of law because an omission alone
39
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j No. 34049-0-III
II Repin v. State of Washington
cannot constitute negligent misrepresentation. We decline to apply this theory because
I WSU did not deal with Robert Repin in the course of the latter's business.
Under Washington law, a plaintiff claiming negligent misrepresentation must
prove by clear, cogent, and convincing evidence that (1) the defendant supplied
information for the guidance of another in his or her business transactions, (2) the
information was false, (3) the defendant knew or should have known that the information
was supplied to guide the plaintiff in his or her business transactions, (4) the defendant
was negligent in obtaining or communicating the false information, (5) the plaintiff relied
on the false information, (6) the plaintiffs reliance was reasonable, and (7) the false
information proximately caused the plaintiff damages. Ross v. Kirner, 162 Wash. 2d 493,
499, 172 P.3d 701 (2007).
Robert Repin emphasizes Restatement (Second) of Torts § 551 (Am. Law Inst.
1977), which creates a duty to disclose under certain fiduciary situations. Nevertheless,
negligent misrepresentation under section 551 invokes the duty to disclose only in terms
of a business transaction. Colonial Imports v. Carlton Northwest, Inc., 121 Wash. 2d 726,
731,853 P.2d 913 (1993). Liability is further limited by section 551(2) to those
situations when business advice is given by one who proclaims expertise or has a
financial stake in the matter under consideration. Colonial Imports v. Carlton Northwest,
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No. 34049-0-111
Repin v. State of Washington
Inc., 121 Wash. 2d at 732; Richland School District v. Mabton School District, 111 Wn.
App. 377, 386, 45 P.3d 580 (2002).
We find no case in which negligent misrepresentation by omission has been
applied in the context of veterinarian services. Dr. Margaret Cohn-Urbach did not
provide financial information or advice to Robert Repin. Repin's business did not
include raising dogs.
CONCLUSION
We affirm all rulings of the trial court. We remand the case to the superior court
for further proceedings on those claims not dismissed on summary judgment.
WE CONCUR:
Lawrence-Berrey, J.
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No. 34049-0-111
FEARING, C.J. (concurring)- Gentlemen of the Jury: The best friend a man has in
this world may turn against him and become his enemy. His son or daughter that he has
reared with loving care may prove ungrateful. Those who are nearest and dearest to us,
those whom we trust with our happiness and our good name, may become traitors to their
faith. The money that a man has he may lose. It flies away from him perhaps when he
needs it most. A man's reputation may be sacrificed in a moment of ill-considered
action. The people who are prone to fall on their knees to do us honor when success is
with us, may be the first to throw the stones of malice when failure settles its cloud upon
our heads. The one absolutely unselfish friend that a man can have in this selfish world,
the one that never deserts him, the one that never proves ungrateful or treacherous, is his
dog.
Closing argument of U.S. Senator George Vest, Burden v. Hornsby (1870).
I write this concurring opinion to advocate a change in the law. Principles
underlying the law of damages for breach of contract and values basic to the law of
negligent infliction of emotional distress call for an award of emotional distress damages
to the owner of a companion animal when a veterinarian commits malpractice and
breaches the implied covenant of competent care in the treatment of the pet.
Unfortunately, Washington law has strayed from these principles and values by
jaundicely viewing pets as just another piece of personal property. I am bound by earlier
Washington Supreme Court and Court of Appeals decisions to affirm denial to Robert
I
II No. 34049-0-III
r Repin v. State of Washington (concurring)
I
II Repin of emotional distress damages, but I recommend our state Supreme Court's
consideration of our ruling. I do not recommend any changes to the law with regard to
I commercial animals.
Breach of Contract Damages
I
As noted in the majority opinion, in general, parties cannot recover noneconomic,
I
I emotional disturbance, damages for breach of contract. RESTATEMENT (SECOND) OF
CONTRACTS§ 353 (Am. Law Inst. 1981); Gaglidari v. Denny's Restaurants, Inc., 117
Wash. 2d 426, 440-48, 815 P.2d 1362 (1991). Nevertheless, under the Restatement, an
exception arises if "the contract or the breach is of such a kind that serious emotional
disturbance was a particularly likely result." RESTATEMENT (SECOND) OF CONTRACTS
§ 353.
No Washington court has expressly adopted Restatement (Second) of Contracts
§ 353. Nevertheless, the Washington Supreme Court in Gaglidari v. Denny;s
Restaurants, Inc., 117 Wash. 2d 426, and the Court of Appeals in Hendrickson v. Tender
Care Animal Hospital, Corp., 176 Wash. App. 757, 312 P.3d 52 (2013) discussed the
section as if Washington had adopted it. Washington courts have adopted or
acknowledged other sections of Restatement (Second) of Contracts. Some examples are
Restatement (Second)§ 90 in Greaves v. Medical Imaging Systems, Inc., 124 Wash. 2d 389,
398, 879 P.2d 276 (1994); § 151 in Chemical Bank v. Washington Public Power Supply
System, 102 Wash. 2d 874, 898-99, 691 P.2d 524 (1984), and Scott v. Petett, 63 Wash. App.
I
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Repin v. State of Washington (concurring)
50, 58,816 P.2d 1229 (1991); § 261 in Washington State Hop Producers, Inc.
Liquidation Trust v. Goschie Farms, Inc., 112 Wash. 2d 694, 707, 773 P.2d 70 (1989); §
265 in Washington State Hop Producers, Inc. Liquidation Trust v. Goschie Farms, Inc.,
112 Wash. 2d at 696; § 347 in Eastlake Construction Co., Inc. v. Hess, 102 Wash. 2d 30, 46,
686 P.2d 465 (1984); § 348 in Eastlake Construction Co., Inc. v. Hess, 102 Wash. 2d at 47;
§ 371 in Young v. Young, 164 Wash. 2d 477, 487-88, 191 P.3d 1258 (2008); and§ 374 in
Ducolon Mechanical, Inc. v. Shinstine/Forness, Inc., 77 Wash. App. 707, 711, 893 P.2d
1127 (1995).
The comments to Restatement (Second) of Contracts§ 353 read, in part:
Common examples are contracts of carriers and innkeepers with
passengers and guests, contracts for the carriage or proper disposition of
dead bodies, and contracts for the delivery of messages concerning death.
Breach of such a contract is particularly likely to cause serious emotional
disturbance. Breach of other types of contracts, resulting for example in
sudden impoverishment or bankruptcy, may by chance cause even more
severe emotional disturbance, but, if the contract is not one where this was
a particularly likely risk, there is no recovery for such disturbance.
RESTATEMENT (SECOND) OF CONTRACTS§ 353 cmt. a.
The Restatement's historic examples of contracts of carriers and innkeepers with
passengers and guests may be outdated. Few, if any, recent cases award a passenger of a
common carrier or guest of a hotel emotional distress damages for break of contract. As
to carriers, the federal ICC Termination Act of 1995 will likely bar any claim against a
motor carrier for emotional distress. 49 U.S.C. § 14706; Moffit v. Bekins Van Lines Co.,
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No. 34049-0-III
Repin v. State of Washington (concurring)
6 F.3d 305, 306-07 (5th Cir. 1993). Other federal law will, in turn, likely bar any claim
against an air carrier for emotional distress damages. 49 U.S.C. § 41713; Tobin v.
Federal Express Corp., 775 F.3d 448,452 (1st Cir. 2014). As to innkeepers, the hotel
owner may still remain subject to emotional distress damages for breach of contract.
Amickv. BM & KM, Inc., 275 F. Supp. 2d 1378 (N.D. Ga. 2003) (applying Georgia law);
Doldv. Outrigger Hotel, 54 Haw. 18,501 P.2d 368 (1972), overruled, Francis v. Lee
Enterprises, Inc., 89 Haw. 234, 971 P.2d 707 (1999).
Regardless of the current state of the law regarding common carriers and hoteliers,
more reason exists to allow the owner of a pet to recover for emotional distress resulting
from the negligence of a veterinarian's causing death or injury to the companion animal.
Breach of contract by the veterinarian will likely cause serious emotional disturbance or
at least more so than contract breaches by innkeepers and carriers. The veterinarian
knows of the bond between a human being and his companion animal and the trauma
resulting from a breach of the contract to competently care for the pet.
As discussed in the majority opinion, Gaglidari v. Denny's Restaurants, Inc., 117
Wash. 2d 426 ( 1991) is a principal Washington decision involving recovery of emotional
distress damages for breach of contract. Ronda Gaglidari sued Denny's for breach of an
employment contract. The Washington Supreme Court reversed a jury award of
emotional distress damages. The court wrote:
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Repin v. State of Washington (concurring)
... [B]y allowing emotional damages whenever they are a
foreseeable result of the breach, the traditional predictability and economic
efficiency associated with contract damages would be destroyed. In order
to avoid the unpredictable and destabilizing results of such an approach,
most courts have generally limited emotional distress damages to contracts
uniquely intended to protect some personal interest or security and which
are incapable of compensation by reference to the terms of the contract.
It is easily predictable there would be a jury issue on emotional
distress in nearly every employee discharge case and in fact nearly every
breach of contract case. The contractual consensus of the parties will
become secondary to an action in tort. This will represent a profound
change in the law, the implication of which probably can be explained only
by adverting to the "Law of Unintended Consequences." If there is to be a
change in the common law, we believe a more prudential approach would
be for the Legislature to consider the matter prior to such a change
occurrmg.
Gaglidari, 117 Wn.2d at 446,448.
One flaw in Gaglidari v. Denny's Restaurants, Inc., is that a discharged employee
nearly always now sues in tort, regardless of whether the employee adds a claim in
contract, such that most every employee discharge case now entails a jury question of
emotional distress. More importantly, the Gaglidari court wished to limit emotional
distress damages to contracts uniquely intended to protect some personal interest or
security and which are incapable of compensation by reference to the terms of the
contract. The court does not define a contract intended to protect "some personal
interest." The court may have pondered contracts wherein the breach may defame the
plaintiff or injure his or her status in the community or contracts that concern the psyche
of the plaintiff such as counseling contracts.
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No. 34049-0-III
Repin v. State of Washington (concurring)
Regardless, pet owners hold a personal interest, not simply an economic interest,
in companion animals. Pets possess an enormous hold on Washington residents, as
illustrated by Kaisa being the sole companion of Robert Repin. Washingtonians devote
hours to walking, playing, feeding, stroking, and caring for pets. Washingtonians mourn
the death of a pet. In tum, pets return hours of love, devotion and companionship to
owners. Veterinarians know well the devotion that owners possess toward pets. Small
animal veterinarians uncynically and legitimately make money from this devotion.
According to the American Pet Products Association, total pet industry
expenditures in the United States reached $60.28 billion in 2015. Americans spent a total
of $23.05 billion on pet food, $14.28 billion on supplies and medicine, $15.42 billion on
veterinarian care, $2.12 billion on live animal purchases, and $5.41 billion on pet services
like grooming and boarding. Pet Industry Market Size & Ownership Statistics, AM. PET
PRODS. Ass 'N, http://americanpetproducts.org/press_ industrytrends. asp
[https://perma.cc/QP5H-WE94]. According to a report by the Bureau of Labor Statistics,
on average, each U.S. household spent over $500 on pets in 2015. Amelia Josephson,
The Economics of the Pet Industry, SMARTASSET (Dec. 25, 2015),
https ://smartasset. com/personal-finance/the-economics-of-the-pet-industry
[https://perma.cc/JLP9-LNW9]. Since some households lack a pet, those households
with pets spend on average more than $500 per year.
Hendrickson v. Tender Care Animal Hospital, Corp., 17 6 Wash. App. 7 57 (2013) is
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No. 34049-0-111
Repin v. State of Washington (concurring)
an indistinguishable decision that we follow. The Hendrickson court summarily
dismissed Julie Hendrickson's claim for emotional distress damages resulting from the
death of her pet dog during the care by a veterinarian. A primary rationale behind the
court's ruling was the historic treatment of animals as any other article of personal
property. 176 Wash. App. at 767. This historic treatment now belies reality.
Many decisions, including Washington decisions, recognize the bond between
animal and human and the intrinsic and inestimable value of a companion animal. "We
recognize that the bond between pet and owner often runs deep and that many people
consider pets part of the family." Mansour v. King County, 131 Wash. App. 255, 265, 128
P.3d 1241 (2006). Harm may be caused to a person's emotional well-being by malicious
injury to that person's pet as personal property. Womack v. Von Rardon, 133 Wash. App.
254, 263-64, 135 P.3d 542 (2006). "Pickford, with good reason, maintains that Buddy is
much more than a piece of property; we agree." Pickford v. Masion, 124 Wash. App. 257,
263, 98 P.3d 1232 (2004).
Here, first, the private interest involved is the owners' interest in
keeping their pets. This is greater than a mere economic interest, for pets
are not fungible. So the private interest at stake is great.
Rhoades v. City ofBattle Ground, 115 Wash. App. 752, 766, 63 P.3d 142 (2002).
Foreign decisions echo this sentiment. The emotional attachment to a family's
dog is not comparable to a possessory interest in furniture. San Jose Charter of Hells
Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005). Pets are
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No. 34049-0-III
Repin v. State of Washington (concurring)
not inanimate objects, and an emotional bond exists between some pets and their owners.
Barrios v. Safeway Insurance Co., 2011-1028 (La. App. 4 Cir. 3/21/12), 97 So. 3d 1019,
1023-24.
The other concurring opinion mentions two typical objections to judicial changes
in the law. First, this court should leave any changes to the state legislature. The flaw in
this argument lies in the fact that the judiciary, without input from the legislature, created
the rule denying emotional distress damages for breach of veterinarian contracts. The
rule conflicts with underlying legal principles. Therefore, the courts, not the legislature,
should correct the error and align the rule with the underlying principles.
The legislature has never addressed whether pet owners may recover emotional
distress damages. When no statute in this state examines a subject matter, it is both
appropriate and proper that the courts decide the question. In re Welfare ofBowman, 94
Wn.2d 407,420,617 P.2d 731 (1980).
Second, the other concurring opinion worries about harm to the veterinarian
profession and the end to some veterinarians' practices. Nevertheless, one may recover
emotional distress damages against physicians and lawyers. Harbeson v, Parke-Davis,
Inc., 98 Wn.2d 460,477, 656 P.2d 483 (1983) (physician); Paul v. Judicial Watch, Inc.,
543 F. Supp. 2d 1, 7 (D.D.C. 2008) (attorney); Gillespie v. Klun, 406 N.W.2d 547, 558
(Minn. Ct. App. 1987) (attorney); McAlister v. Slosberg, 658 A.2d 658,660 (Me. 1995)
(attorney); In re Jackson, 92 B.R. 987, 999 (Bankr. E.D. Pa. 1988) (attorney);
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No. 34049-0-III
Repin v. State of Washington (concurring)
Wagenmann v. Adams, 829 F.2d 196,221 (1st Cir. 1987) (attorney). The availability of
such damages has not irreparably harmed these or other professions. The noble
veterinarian profession deserves no protections denied other professions.
Negligent Infliction of Emotional Distress
I agree with Washington law's requirement that, to recover in negligent infliction
of emotional distress, the plaintiff must show objective symptomatology and the
emotional distress must be susceptible to medical diagnosis and proved through medical
evidence. Kloepfel v. Bokor, 149 Wash. 2d 192, 196-97, 66 P.3d 630 (2003); Hegel v.
McMahon, 136 Wash. 2d 122, 135, 960 P.2d 424 (1998). The majority opinion denies
Robert Repin recovery in negligent infliction of emotional distress based on the absence
of medically documented objective symptomatology.
I criticize current Washington law in that state law may impose a strict prohibition
on a pet owner recovering emotional distress damages for loss of a human-animal bond
based on the negligent death or injury to a pet. Sherman v. Kissinger, 146 Wash. App. 855,
873, 195 P.3d 539 (2008); Pickford v. Masion, 124 Wash. App. 257 (2004). No reason
exists to distinguish between emotional distress suffered from the death or serious injury
to a pet and emotional distress suffered from other events caused by the negligence of a
defendant.
At least one Washington decision recognizes the harm that may be caused to a
person's emotional well-being by malicious injury to that person's pet. Womack v. Von
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No. 34049-0-III
Repin v. State of Washington (concurring)
Rardon, 133 Wash. App. at 264 (2006). Because of the role of pets in our society, this
recognition should extend to instances of negligent injury.
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No. 34049-0-111
LAWRENCE-BERREY, J. (concurring)- Current law that requires dismissal should
not be judicially changed. To subject veterinarians to a claim for a pet owner's emotional
distress damages would have profound societal effects. It would likely put many
veterinarians out of business, it would sharply increase veterinarian bills for pet owners,
and it would result in veterinarians refusing to perform emergency operations.
Our concurring brother dismisses these concerns, in part, by noting how well
physicians have adjusted to increased damage awards. Increased damage awards against
physicians are funded by increased medical insurance rates, which in turn are funded by
several millions of people who pay medical insurance. Pet owners, however, pay
veterinarian bills from their pockets. Because pet owners generally do not ( or cannot)
buy pet insurance, increased veterinarian costs cannot be funded in the same manner as
increased physician costs. We are confident that veterinarians would not fare as well as
physicians if Washington was to permit recovery of emotional damages for pet owners.
Nevertheless, we should leave it for the legislature to weigh the benefits and costs of such
a rule. See Gaglidari v. Denny's Restaurants, Inc., 117 Wash. 2d 426, 448, 815 P .2d 1362
(1991).
I CONCUR: