Nichole Poletti v. Overlake Hospital Medical Center ( 2013 )

V...
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
NICHOLE POLETTI, as the Executor of
the Estate of Sherri Poletti, Deceased, No. 67821-3-1
Respondent, ORDER GRANTING
MOTION TO PUBLISH
OPINION
OVERLAKE HOSPITAL MEDICAL
CENTER,
Appellant,
and
KING COUNTY,
Defendant.
Non-party Kathy A. Cochran, attorney for Providence Health &Services-
Washington, has filed a motion to publish the opinion filed April 1, 2013; Appellant
Overlake Hospital Medical Center has filed a response to the motion to publish; and
Respondent Nichole Poletti has notfiled a response. The hearing panel has
considered its prior determination and finds that the opinion will be of precedential
value; Now, therefore, it is hereby
ORDERED that the written opinion shall be published and printed in the
Washington Appellate Reports.
DONE this ^ I day of May, 2013.
FOR THE COURT:
V
Judge
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NICHOLE POLETTI, as the Executor of
the Estate of Sherri Poletti, Deceased, No. 67821-3-1
Respondent, DIVISION ONE
o
OVERLAKE HOSPITAL MEDICAL PUBLISHED OPINION S —tc
CENTER,
FILED: April 1,2013
Appellant,
and
« "
Hi -AG
KING COUNTY, ro S"S.
as -" ,_.
Defendant.
Becker, J. —We accepted discretionary review in this wrongful death
case to determine the standard by which a fact finder should judge Overlake
Hospital's decision to discharge, rather than detain, a voluntarily admitted
psychiatric patient. We conclude Overlake's decision to discharge the patient
implicated the involuntary treatment act, chapter 71.05 RCW, and the hospital
cannot be liable if the decision was made in good faith and without gross
negligence.
Sherri Poletti, 58, suffered from bipolar disorder. Around Christmas Day
2006, she stopped taking her medications and began to drive aimlessly
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throughout Washington, Oregon, and Canada. Late at night on December 30,
2006, she sought help at a hospital emergency room in Seattle, reporting
sleeplessness, paranoia, hallucinations, and suicidal thoughts. She was referred
and transported to Overlake Hospital Medical Center. There, she agreed to be
admitted voluntarily into the psychiatric unit. Eighteen hours later, she said she
felt better and asked to be discharged. A nurse tried to dissuade Poletti from
leaving, but after a telephone consultation with the county designated mental
health professional, she granted Poletti's request to be discharged. Poletti went
home in a taxi but then resumed driving. She died not long afterwards, miles
away, in a single-car crash.
In March 2008, Nichole Poletti, Sherri Poletti's daughter and the personal
representative of her estate, filed a wrongful death suit against Overlake Hospital
and King County. The estate claimed that Overlake was guilty of ordinary
negligence for discharging Poletti without an in-person evaluation by a county
designated mental health professional, and King County was guilty of gross
negligence for failing to evaluate her in person, given their knowledge of her
history of bipolar disorder. Overlake Hospital denied any negligence and
asserted that it could be liable only for gross negligence as provided by the act,
RCW71.05.120(1).1
1Early in the case, the defendants obtained dismissal on summary judgment
based on arguments not made here. This court reversed the judgment. Poletti v.
Overlake Hosp. Med. Cntr. noted at 156 Wn. App. 1012 (2010). King County
subsequently settled with Poletti's estate.
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On September 23, 2011, the trial court granted the estate's motion for
partial summary judgment and ruled that Overlake was not entitled to be judged
by the gross negligence standard of care. The court found that "Overlake did not
detain Sherri Poletti and the Involuntary Treatment Act was not implicated at any
time." The court also ruled that Overlake breached the standard of care as a
matter of law because it had failed to refer Poletti to a King County designated
mental health professional for assessment, which the court determined was
required by one of the hospital's own policies. The court certified its order for
discretionary review under RAP 2.3, and this court granted Overlake's motion for
discretionary review.
Summary judgment is proper only ifthere are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. CR
56(c).
The issues presented require statutory interpretation. The court reviews
issues of statutory interpretation and orders granting summary judgment de
novo. Cerrillo v. Esparza, 158 Wn.2d 194, 199, 142 P.3d 155 (2006); In re Pet.
of Danforth. 173 Wn.2d 59, 68, 264 P.3d 783 (2011).
Standard of Care
The involuntary treatment act is primarily concerned with the procedures
for involuntary mental health treatment of individuals who are at risk of harming
themselves or others, or who are gravely disabled. Pertinent to this case, the act
is also concerned with individuals who voluntarily seek inpatient mental health
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treatment. Ordinarily, a person admitted voluntarily "shall be released
immediately upon his or her request." RCW 71.05.050. If a hospital regards
such a person as meeting the test provided in the act for involuntary
commitment, the hospital "may detain such person for sufficient time" to allow the
county designated mental health professional to assess the person:
Nothing in this chapter shall be construed to limit the right of any
person to apply voluntarily to any public or private agency or
practitioner for treatment ofa mental disorder, either by direct
application or by referral. Any person voluntarily admitted for
inpatient treatment to any public or private agency shall be released
immediately upon his or her request. Any person voluntarily
admitted for inpatient treatment to any public or private agency
shall orally be advised of the right to immediate discharge, and
further advised of such rights in writing as are secured to them
pursuant to this chapter and their rights of access to attorneys,
courts, and other legal redress. Their condition and status shall be
reviewed at least once each one hundred eighty days for evaluation
as to the need for further treatment or possible discharge, at which
time they shall again be advised oftheir right to discharge upon
request: PROVIDED HOWEVER, That if the professional staff of
any public or private agency or hospital regards a person voluntarily
admitted who requests discharge as presenting, as a result ofa
mental disorder, an imminent likelihood of serious harm, or is
gravely disabled, they may detain such person for sufficient time to
notify the county designated mental health professional of such
person's condition to enable the [mental health professional] to
authorize such person being further held in custody ortransported
to an evaluation and treatment center pursuant to the provisions of
this chapter, which shall in ordinary circumstances be no later than
the next judicial day.
RCW 71.05.050.
Another section of the statute exempts decision makers from liability for
ordinary negligence under certain circumstances, substituting a gross negligence
standard for duties performed pursuant to the act with regard to decisions
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whether to "admit, discharge, release, administer antipsychotic medications, or
detain a person for evaluation and treatment."
(1) No officer of a public or private agency, nor the superintendent,
professional person in charge, his or her professional designee, or
attending staff of any such agency,... nor any county designated
mental health professional,... or an evaluation and treatment
facility shall be civilly or criminally liable for performing duties
pursuant to this chapter with regard to the decision of whether to
admit, discharge, release, administer antipsychotic medications, or
detain a person for evaluation and treatment: PROVIDED, That
such duties were performed in good faith and without gross
negligence.121
RCW 71.05.120(1).
Overlake contends its decision to discharge Poletti instead of detaining
her for a formal evaluation by a county designated mental health professional is
exemptfrom liability under RCW 71.05.120(1) if performed in good faith and
without gross negligence. The estate defends the trial court ruling and argues
that the involuntary treatmentact does not apply at all because the hospital did
not detain Poletti. The estate contends the ordinary medical negligence standard
of RCW 7.70.040 should govern the case.
"Our fundamental purpose in construing statutes is to ascertain and carry
out the intent of the legislature. We determine the intent of the legislature
primarily from the statutory language. In the absence ofambiguity, we will give
effect to the plain meaning of the statutory language." In re Marriage of
Schneider, 173 Wn.2d 353, 363, 268 P.3d 215 (2011) (citations omitted).
2 In a 1974 amendment, the legislature inserted the term "gross" before
"negligence" in this proviso, indicating a decision to change the standard of care. RCWA
71.05.120.
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The plain language of the act shows it applies to voluntary admissions for
psychiatric treatment. How to deal with patients who voluntarily seek inpatient
treatment is the subject matter of RCW 71.05.150. Poletti's estate cannot hold
Overlake Hospital liable for failing to detain Sherri Poletti without invoking the
immunity provision of RCW 71.05.120 because the only authority under which
Overlake could have detained Poletti was under the involuntary treatment act.
See Estate of Davis v. Dep't of Corr.. 127 Wn. App. 833, 840-41, 113P.3d487
(2005). The trial court erred in concluding that Overlake's decision to discharge
Poletti did not implicate the act.
The gross negligence standard provided by the act applies to a hospital's
performance of "duties pursuant to this chapter." RCW 71.105.120(1). The
estate argues that the only duty a hospital has under RCW 71.05.150 is to
"detain" a patient. This is manifestly inaccurate. A person voluntarily admitted
"shall be released immediately upon his or her request." The proviso makes an
exception to this rule by authorizing a hospital to detain ("they may detain") if staff
regard the person as presenting "an imminent likelihood of serious harm" or as
"gravely disabled." "Shall" is mandatory while "may" is permissive. Thus,
releasing a voluntarily admitted patient "immediately" upon request is the primary
duty, and arguably the only duty, specified by this section of the act.
Moreover, application of the gross negligence standard provided by RCW
71.05.120(1) is not limited only to decisions to detain a person against her will. It
covers decisions whether or not "to admit, discharge, release, administer
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antipsychotic medications, or detain a person for evaluation and treatment." The
act defines "admit" as a decision by a physician or psychiatric advanced
registered nurse practitioner that a person should be examined or treated as a
patient in a hospital. RCW 71.05.020(1). The act defines "discharge"3 as the
termination of hospital medical authority. RCW 71.05.020(15). The act defines
"release" as the legal termination of a court-ordered commitment, and "detain" as
the lawful confinement of a person under the provisions of the act, among other
terms. RCW 71.05.020(37),(12). It is clear the legislature intended to provide
limited immunity for a range of decisions that a hospital can make when a patient
arrives, whether voluntarily or involuntarily, for evaluation and treatment.
Overlake made a decision to discharge Poletti, pursuant to its duty under RCW
71.05.050 to release her immediately upon her request. Overlake cannot be held
liable for this decision if it performed this duty in good faith and without gross
negligence.
The estate argues that under this interpretation of the act, hospitals could
immunize their entire course of treatment of a psychiatric patient merely by
considering whether to have the patient evaluated for involuntary commitment.
This scenario is overblown. The act's limited exemption from liability does not
apply to all damages a psychiatric patient might suffer as a result of treatment
decisions. The act applies in the present case to the extent the estate is claiming
3 In 2000, the legislature amended RCW 71.05.120(1) to include the term
"discharge" in the list of covered decisions. See RCWA 71.05.120.
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No. 67821-3-1/8
that Poletti's death was caused by Overlake's decision to discharge her, a
decision expressly mentioned in and covered by RCW 71.05.120(1).
"Statutes involving a deprivation of liberty are to be construed strictly." In
reDet.ofSwanson, 115 Wn.2d 21, 27, 793 P.2d 962, 804 P.2d 1 (1990).
Detaining a patient against her will under the involuntary treatment act is a
"'massive curtailment of liberty.'" In re LaBelle, 107 Wn.2d 196, 201, 728 P.2d
138 (1986), quoting Humphrey v. Cadv. 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L.
Ed. 2d 394 (1972). The trial court's ruling would have the incongruous result of
holding a hospital to the higher standard of ordinary negligence when discharging
a voluntarily admitted psychiatric patient, while holding the hospital to the lower
standard of gross negligence when releasing an involuntarily committed patient.
Nothing in the statutory language evinces such an intent. A hospital
presumptively must discharge a voluntary patient "immediately upon his or her
request." RCW 71.05.050. While a hospital does have authority under the
statute to detain a patient briefly to obtain a formal evaluation, the hospital will
not face liability for discharging the patient without an evaluation as long as the
decision is made in good faith and without gross negligence.
The estate contends that even if the decision to discharge Poletti
implicates the act, the act's gross negligence standard applies only to the
decision to discharge, while other acts of negligence are to be evaluated under
the ordinary medical negligence standard. The estate points to a number of
mistakes the hospital allegedly made in caring for Poletti during the eighteen
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No. 67821-3-1/9
hours between her voluntary admission and discharge. For example, taken in
the light most favorable to the estate, the record indicates the hospital did not
monitor Poletti as it should have and as a result was unaware that she still was
not getting much sleep. Also, there is evidence the charge nurse did not follow
the attending physician's orders.
The estate's primary wrongful death theory is that the hospital's act of
discharging Poletti caused her death. We leave for the trial court to consider on
remand whether any hospital employees' acts that preceded or followed the
decision to discharge may have caused Poletti's death, and what jury instructions
would be appropriate to allow the estate to develop such a theory.
At the time of the court's certification for discretionary review, the estate
had just moved to amend the complaint by adding a theory of lack of informed
consent. The parties agreed at oral argument before this court that the motion
was denied without prejudice because the parties had agreed to a stay. We
express no opinion as to this motion.
Breach As a Matter of Law
The trial court ruled that the hospital's failure to follow its own policy
requiring referral for a formal evaluation "constituted a breach of the standard of
care as a matter of law." This second ruling is also before this court on
discretionary review.
Overlake's policy No. 12548, entitled "Emergency Psychiatric Treatment
and Transfers," provides as follows:
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Policy: Individuals seeking care will be provided emergency
establishing psychiatric treatment, within the capacity of the
Emergency Department and Psychiatric Services. When additional
specialized psychiatric inpatient services are clinically indicated, the
patient will be offered admission to Overlake Hospital Medical
Center Inpatient Psychiatric Unit or will be offered referral to
another appropriate facility. Any arrangements for transfer of
stabilized patients will provide for safe transport.
C. Patients in need of furtherpsychiatric (inpatient) treatment, but
who are either not accepted for further treatment by other facilities,
or who do not consent to treatment, will be referred to the County
Designated Mental Health Professional, for immediate evaluation.
1. Patients evaluated by CDMHP will either be released or
transferred, as directed by CDMHP
2. Rationale: Treatment Planning/Patient Safety14'
The estate is free to argue to the finder of fact that Overlake's failure to
refer Poletti for immediate evaluation by the county designated mental health
professional was a breach of the standard of care established by the hospital's
own policy. Detaining a voluntary patient to make such a referral is expressly
permitted by RCW 71.05.050. The estate contends, however, that the hospital's
breach has already been conclusively established because it was unrebutted that
the hospital failed to refer Poletti for evaluation by the county designated mental
health professional. What the estate overlooks is that the requirement for referral
in policy No. 12548 (C.) applies only to patients who are "in need of further
psychiatric (inpatient) treatment." Whether Poletti, at the time of her discharge,
Clerk's Papers at 627 (emphasis added).
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was in need of further inpatient psychiatric treatment was disputed in the record
below5 and therefore it is a factual question that must be left for trial.
The trial court did not reach the issue of whether the evidence of gross
negligence was so abundant that Overlake should be held grossly negligent as a
matter of law. The estate invites the court to dispose of the case on this basis.
We decline the invitation. There are factual issues that cannot be resolved on
the limited record before us.
The rulings before us on discretionary review are both reversed.
WE CONCUR:
Csx.J-
5 E.g.. Clerk's Papers at 771, Deposition of Dr. John Chiles at 72.
11