Malpractice Statute is Not Limitless

When Washingtonians are injured in a health care setting, the providers may be liable for health care malpractice if their treatment was below the standard of care and a state statute, RCW 7.70, provides the exclusive list of causes of action that can be brought for malpractice. However, not all injuries arising from a health care setting are properly defined as malpractice alone. Division One of the Washington Court of Appeals recently confirmed this in the case of Kipfer v. Providence Health & Servs. Wash. when the Court held that “Chapter 7.70 RCW ‘sweeps broadly’ […] [b]ut, its reach is not endless.”

This decision by the Court of Appeals builds on decades of earlier cases. In fact, more than twenty years before the opinion in Kipfer, Division One had articulated a minimum circumstance which would trigger the malpractice statute in the case Branom v. State. There, the Court decided that the malpractice statute was properly triggered when a health care provider “ ‘was utilizing the skills which he had been taught in examining, diagnosing, treating or caring for’ ” a patient. Id. at 970–71. Nine years after that case, Division One decided the outer limits of the malpractice statute when it took up the case of Reed v. ANM Health Care.  In Reed, the Plaintiff had brought common law claims of outrage and negligent infliction of emotional distress against the health care staffing company because a nurse would not let the Plaintiff sit by their life partner’s bedside at the ICU. The Court found that the nurse’s actions were not themselves malpractice because “not all actions that occur during the course of a health care provider and patient relationship constitute ‘health care’ within the meaning of [RCW 7.70].” Id. at 269. Accordingly, the Plaintiff was allowed to file the common law claims even though they were not contemplated by the malpractice statute. Other cases where the Courts have decided that the malpractice statute does not adequately address a health care worker’s actions include Quimby v. Fine, (the Plaintiff was allowed to pursue Consumer Protection Act claim against a physician whose alleged motivation was financial gain rather than medical care); Doe v. Fitch, (the Plaintiff could bring claims for intentional torts against a physician who was alleged to have engaged in sexual relations with a patient’s spouse); Wright v. Jeckle,  (Consumer Protection Act claim proceeded against physician who was selling diet drugs); Bundrick v. Stewart, (the Plaintiff’s claim for medical battery was not superseded by the malpractice statute).

One of the reasons Courts have determined that the malpractice statute has not supplanted a Plaintiff’s right to bring causes of action against health care providers that are not contemplated by the statute is because the Civil Rules expressly authorize a Plaintiff to plead alternative and even inconsistent causes of action. Rule 8 governs the content of pleadings, and the Ninth Circuit of the United States Court of Appeals has held that “in light of the liberal policy embodied in Rule 8(e)(2), […] a pleading should not be construed as an admission against another alternative or inconsistent pleading in the same case….” Molsbergen v. United States.

Therefore, when Washingtonians are injured in a health care setting, but not necessarily as a result of malpractice, those claims have not been extinguished by the Washington malpractice statute.