Estate of Viola Williams v. Lourdes Health Network ( 2016 )

FILED
JULY 12, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
SHERRIE LENNOX, as Personal )
Representative of the ESTATE OF ) No. 33201-2-111
VIOLA WILLIAMS, )
)
Appellants, )
)
v. ) UNPUBLISHED OPINION
)
LOURDES HEAL TH NETWORK a )
Washington non-profit corporation; )
BENTON COUNTY and FRANKLIN )
COUNTY, Washington municipal )
corporations, )
)
Respondents. )
)
)
)
FEARING, C.J. -Under RCW 71.05.120, an entity enjoys immunity from conduct
related to the failure to involuntarily commit a mental health patient, but not for gross
negligent acts. On the basis of this immunity, the trial court dismissed on summary
judgment claims against Lourdes Health Network and Benton and Franklin Counties
Crisis Response Unit for the murder of Viola Williams by her grandson, Adam Williams,
No. 33201-2-111
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a mental health patient. We affirm the summary dismissal in favor of the Crisis Response
Unit and reverse the dismissal in favor of Lourdes Health Network.
FACTS
The background to Sherrie Lennox's lawsuit against Lourdes Health Network and
the Crisis Response Unit concerns the mental illness of Adam Williams and treatment for
the illness. From the age of eleven, Adam Williams struggled with attention deficit
hyperactivity disorder, major depression, and substance abuse. He began using
methamphetamine, marijuana, and alcohol at age twelve. He abused inhalants such as
gasoline and glue, hallucinogenic mushrooms, lysergic acid diethylamide (LSD) and
other drugs, and participated in substance abuse treatment several times. By the age of
sixteen, Williams sat in juvenile detention sixteen times, with ten convictions for crimes
such as malicious mischief, forgery, residential burglary, and eluding the police. At age
seventeen, Williams began hearing voices and developed the delusion that he could read
minds and communicate with God and others telepathically. Williams tried to kill
himself three times, once by jumping into a river and twice by refusing food for extended
periods of time while incarcerated.
On June 6, 2006, Adam Williams was found not guilty by reason of insanity of
third degree assault and the court involuntarily committed him to Eastern State Hospital
(Eastern). Due to ongoing mental health issues, he remained civilly committed at Eastern
for the next five years, the maximum permissible time. Eastern staff diagnosed Williams
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with, and treated him for, chronic paranoid schizophrenia, recurrent major depression,
and polysubstance abuse.
On March 8, 2011, nine days before Adam Williams' scheduled release date of
March 17, Eastern psychiatrist Dr. Imelda Borromeo and designated mental health
professional (DMHP) Scott Burke petitioned the Spokane County Superior Court for a
seventy-two-hour hold to evaluate Williams to determine whether his involuntary
.
commitment should continue beyond his release date. A DMHP is a mental health
professional designated by a county or other government entity to perform duties with
regard to mental health patients under the Involuntary Treatment Act, chapter 71.05
RCW. RCW 71.05.012(11). In their petition, Borromeo and Burke alleged that Williams
qualified as "gravely disabled." RCW 71.05.020(17).
In their March 8, 2011, petition, Dr. Imelda Borromeo and DMHP Scott Burke
declared that Adam Williams still experienced delusions, auditory hallucinations, and
baseline depressive disorder. Williams lacked insight into his substance abuse. When
outside a structured environment, Williams' illness increased such that he heard
commands to injure others. Borromeo and Burke believed that Williams would not
voluntarily admit himself for inpatient psychiatric treatment if his condition worsened
again after his release from Eastern.
On March 10, 2011, Eastern State Hospital staff, including Dr. Imelda Borromeo,
evaluated Adam Williams for possible release from Eastern on a less restrictive
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alternative status. A less restrictive alternative status consists of "outpatient treatment
provided to an individual who meets criteria for commitment but is not residing in a
facility providing inpatient treatment." What is a Less Restrictive Alternative (LRA)?,
WASH. ST. DEP'T OF Soc. & HEALTH SERVS., https://www.dshs.wa.gov/faq/what-less-
restrictive-alternative-lra [https://perma.cc/9SYW-EV77]. A court will order a less
restrictive alternative release for a gravely disabled individual if the court determines that
such alternative treatment is in that person's best interest. Former RCW 71.05.240(3)
(2009). A less restrictive alternative release is similar to being on probation for a
criminal offense insofar as the court orders specific conditions with which an individual
must comply in order to remain in an outpatient setting. Former RCW 71.05.340(3)(a)
(2009).
In her evaluation for the less restrictive alternative, Dr. Imelda Borromeo
observed:
Although Mr. Williams continues to present with ongoing positive
and negative symptoms of schizophrenia, he also has been able to manage
his symptoms quite well without any aggressive or violent behaviors within
this five years of inpatient stay. He has continued to mumble to himself
and stare at others while in conversation. However, these have not
interfered with his ability to communicate effectively. . . . Due to the fact
that he has been hospitalized for quite some time, the temptation to use
illegal substances and alcohol is extremely high as soon as he steps out of
this safe environment into the community. He will, therefore, require some
form of monitoring while in the community to ensure his compliance with
medications and LRA [less restrictive alternative] conditions, thus, this
petition is for a 90-day with LRA the day after his maximum commitment
expires. Mr. Williams has done quite well during his time at Eastern State
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Hospital, has developed his WRAP [wellness recovery action plan] ...
which he tends to use when he is out in the community. Further monitoring
while doing that would help ensure his full integration into the community.
Therefore, I petition for a 14-day with LRA release when his NORI [not
guilty by reason of insanity] expires on 3/17/11.
Clerk's Papers (CP) at 214.
On March 11, 2011, the Spokane County Superior Court released Adam Williams
from Eastern State Hospital on a ninety-day less restrictive alternative placement,
administered by Lourdes Health Network in Pasco; As part of the release, the Spokane
court ordered Williams to attend appointments with Lourdes or cancel in advance, refrain
from threatening to harm himself or others, refrain from using alcohol or drugs, refrain
from possessing firearms, attend Alcoholics Anonymous and Narcotics Anonymous
meetings, and take medications as prescribed. At the time of his release in March 2011,
Eastern administered a complex course of medications to Williams consisting of the anti-
psychotics haloperidol, quetiapine, and clozapine, anti-depressants lithium, venlafaxine,
and bupropion, and medications to manage the side effects of the other medications.
Lourdes Health Network features a "program of assertive community treatment"
(PACT) team, which is:
a person-centered recovery-oriented mental health service delivery
model that has received substantial empirical support for facilitating
community living, psychosocial rehabilitation, and recovery for persons
who have the most severe and persistent mental illnesses, have severe
symptoms and impairments, and have not benefited from traditional
outpatient programs.
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PACT services are individually tailored with each consumer and
address the preferences and identified goals of each consumer. The
approach with each consumer emphasizes relationship building and active
involvement in assisting individuals with severe and persistent mental
illness to make improvements in functioning, to better manage symptoms,
to achieve individual goals, and to maintain optimism.
The PACT team is mobile and delivers services in community
locations to enable each consumer to find and live in their own residence
and find and maintain work in community jobs rather than expecting the
consumer to come to the program. Seventy-five percent or more of the
services are provided outside of the program offices in locations that are
comfortable and convenient for consumers.
CP at 227. All Lourdes PACT teams incorporate a team leader, a psychiatrist, registered
nurses, a mental health professional, a chemical dependency specialist, and a vocational
specialist.
As a provider of outpatient treatment, Lourdes Health Network retained statutory
duties, the most relevant being:
The hospital or facility designated to provide outpatient treatment
shall notify the secretary or designated mental health professional when a
conditionally released person fails to adhere to terms and conditions of his
or her conditional release or experiences substantial deterioration in his or
her condition and, as a result, presents an increased likelihood of serious
harm.
Former RCW 71.05 .340(3 )(b) (2009). Benton and Franklin Counties jointly operate the
Bi-County Crisis Response Unit, which employs the respective counties' DMHPs. Thus,
Lourdes was obligated to report violations by Adam Williams, of his less restrictive
alternative release order, to the Crisis Response Unit. Lourdes could not on its own
revoke the least restrictive alternative placement. The Crisis Response Unit held this
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prerogative under RCW 71.05.340.
Despite the terms of Adam Williams' less restrictive alternative release order,
Lourdes Health Network viewed Williams' participation in its outpatient treatment
program as voluntary. For example, Lourdes nurse Michelle Aronow testified in a
deposition:
Q. Okay, did you have the ability to ensure that he took his, or that
he underwent regular urinalysis?
A. I could write a standing order.
Q. Did you ever write a standing order?
A. No.
Q. Why not?
A. I could only answer that on the fact that this being a voluntary
program and my ability to attempt to build rapport with a patient is very
important because if you do not, in my experience, the patient says, I'm not
being a part of this program and then he would be on the streets in no
program and not have the intensity of the PACT team.
CP at 283. Dana Oatis also testified that Adam Williams joined "the PACT team
on a voluntary basis." CP at 292.
During its supervision of Adam Williams, Lourdes Health Network PACT team
members visited with Williams in person one hundred and seventeen times. PACT
members called Williams one hundred and sixty-nine times, although we do not know on
how many occasions Lourdes employees spoke with Williams on the phone.
From the first day of his release from Eastern State Hospital on March 17, 2011,
Adam Williams missed meetings with Lourdes or untimely cancelled appointments.
Lourdes PACT team members did not report these violations of the court order to the
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Crisis Response Unit and did not insist that Williams attend the meetings. Rather,
Lourdes allowed Williams to set the terms of his meetings and allowed him to cancel
meetings for no reason. On April 7, 2011, Lourdes PACT member Dana Oatis expressed
concern for Williams "since he hasn't been seen much since being discharged from
[Eastern]." CP at 262.
On April 21, 2011, Ann Rayment, a Lourdes Health Network nurse, drove Adam
Williams to a blood test and explained to Williams that his less restrictive alternative
release could be revoked if he abused drugs or refused treatment and medications.
Rayment offered to contact Lourdes chemical dependency case worker, Suzanne Kieffer,
with whom Williams could arrange Narcotics Anonymous meetings.
On June 2, 2011, Adam Williams met with Suzanne Kieffer. Kieffer wrote in her
notes:
I did remind Adam that marijuana is more expensive and more
potent now all these years later. He said "I know." He then looked at me
and made a funny face and said, "I mean I do not know" and he smiled. I
asked [Williams] to please just be real around me that he does not need to
lie or pretend just [because] I am the [chemical dependency] person and he
said "I will try but I do not know that will be hard to do sometimes it is best
to not tell anyone what you are doing." I asked him where that got him in
the past and he said, "True it got me Eastern."
CP at 273-74. The record lacks any information that Kieffer arranged for Williams to
attend Alcoholics Anonymous or Narcotics Anonymous meetings as the less restrictive
alternative order demanded. Kieffer believed that Williams' use of methamphetamine
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contributed to his mental illness. On times she visited Williams, Keiffer knew he was
using drugs. The drugs' influence caused Williams to reject Keiffer's assistance and
rendered the meetings difficult for Keiffer.
On June 14, 2011, Adam Williams underwent a urinalysis as part of community
supervision for another felony. The test showed the presence of marijuana. Williams
granted Lourdes access to his community supervision records, but Lourdes probably did
not obtain a copy of the urinalysis report.
On July 19, 2011, a Lourdes Health Network team member visited Adam
Williams at his home in order to refill his medication box. The team member discovered
that Williams missed doses of medication. On July 22, Suzanna Kieffer traveled to
Williams' home for a scheduled visit, but Williams was not home. Keiffer telephoned
Williams and his phone went straight to voicemail. Lourdes staff spoke with Williams by
phone on July 25 and 26, and Williams stated he was with family. Lourdes team
members continued to attempt personal contact with Williams through July 28, in part to
refill his medications, but could not locate him.
On July 29, 2011, Suzanne Kieffer visited Adam Williams' home, but Williams
was again absent. Kieffer later spoke with Williams' brother, who told Keiffer that he
had not seen Williams for a week and police also searched for him. Kieffer received a
call from Williams' parole officer, David Garcia, who informed her that he had attempted
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contact with Williams for three weeks. Lourdes Health Network did not notify Crisis
Response Unit of Williams' disappearance.
On July 31, 2011, Adam Williams called his father from a payphone. The father
detected Williams to be in a disorganized, angry, anxious state. Williams informed his
father that he had been living on the street and sleeping under a bridge. He had stopped
taking medications and had relapsed with methamphetamine. Williams' parents took him
to Kadlec Medical Center emergency room where doctors treated Williams for
dehydration and dangerously low sodium and potassium levels. Williams expressed
suicidal thoughts to medical center staff.
Lourdes Health Network PACT team member Suzanne Kieffer visited Adam
Williams at Kadlec Medical Center and authored a report following her observation of
Williams in the hospital:
[H]e [Williams] said "I was hiding from PACT because I do NOT
want to go back to ESH [Eastern State Hospital] and I have not taken my
meds for about 9 days or so and I do not give a flying fuck I have been
using crystal meth just flying high, but I am done with that I dumped about
3 ounces down the drain" . . . [T]hey [Kadlec Medical Center] could not
medically release him so he was asked to stay. He agreed but when the
charge nurse came in to give him an IV and give him something to make
him sleep he told her "Fuck you bitch you are not going to stick no needles
in me fuck all you guys I am out of here[.]" I stepped out of his way and he
ran out of the ER [emergency room] yelling at top of his lungs. [Williams']
Dad followed him so [sic] somewhere about Les Schwab by the hospital
Dad and security catch [sic] up with him and he pushes dad .... [Police
returned him to the hospital.] He was doing good [sic] so the cops left and
mom and dad went to get something to eat in the hospital and apparently
Adam ripped his IV out of his arm and took off again .... I called [the Bi-
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County Crisis Response Unit] and they said they could not do anything as
he was not suicidal or threatening anyone else. . . . I left the hospital, as
there was nothing that I could do. Do [sic] to his violent behavior I would
not even attempt to detain him, transport him, nor be in the same room
alone with him.
CP at 315.
Cameron Fordmeir, a Crisis Response Unit DMHP, visited Kadlec Medical Center
on August 1, 2011, and performed an evaluation of Williams. Fordmeir either did not try
to contact Lourdes Health Network or was unable to contact Lourdes prior to evaluating
Williams.
During a deposition, Cameron Fordmeir explained that, when evaluating someone
for revocation of a less restrictive alternative release, he determines if the mental health
patient meets criteria under the Involuntary Treatment Act. At the time of his August 1
evaluation of Williams, Fordmeir knew that Williams was subject to a less restrictive
alternative order, had been diagnosed with paranoid schizophrenia, had not taken his
medication in weeks, and had used methamphetamines. In a written evaluation of Adam
Williams, Cameron Fordmeir wrote: "Client denies [suicidal ideation] and contracts for
safety." CP at 369. In the evaluation, Fordmeir determined that Williams was not a
serious risk of harm to himself or others and that he was not gravely disabled.
In the weeks following hospitalization at Kadlec Medical Center, Adam Williams'
condition improved. On October 6, 2011, Lourdes nurse Michelle Aronow prescribed
Concerta for Williams, Concerta being a stimulant to treat symptoms of Attention Deficit
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Disorder. Aronow warned Williams of the dangers of abusing stimulants.
At a medication management appointment on November 23, 2011, with Michelle
Aronow, Adam Williams admitted to taking a month's worth of Concerta in a week.
Williams acknowledged abuse of the medication. Williams told Aronow that "at times he
believes that he can read people's minds, and ... that he was Jesus Christ in the past."
CP at 389. Williams admitted that he did not take his other medications regularly.
Following this revelation, Aronow chose to take Williams off of Clozaril, a powerful
anti-psychotic, and prescribe Abilify.
On December 27, 2011, Theresa Chandler, a Lourdes Health Network nurse, met
with Adam Williams at his home. After the meeting Chandler wrote in a file note:
I sat down on his bed as it is also his couch to fill his med box.
Adam was very sexually inappropriate, he layed [sic] behind me, put his
hand on my back, ran his hand up and down my back and down my arm,
"how are you doing?" I turned to look at him and tell him that wasn't ok
for him to touch me like that. ... I asked him if he was using any kind of
other drugs right now because he appeared to be very laid back and mellow.
He said, 'just heroin." I wasn't sure i heard him right and i asked him to
repeat what he just said, he laughed and said, "no I'm just kidding, I'm not
on heroin. You want to look at my eye's [sic]". I did look at his pupils and
they appeared to be normal. I sat back down on the bed and was putting his
medication bottles away and he sat next to me grabbing at me again saying
"how are you doing" this time he tried to touch my breast. ...
CP at 427 (some capitalization omitted).
On December 28, 2011, at a medication management appointment, Lourdes
Health Network nurse Michelle Aronow discussed, with Adam Williams, his sexual
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preoccupation and reminded him that he cannot make sexual comments to or sexually
touch a Lourdes staff member. Williams indicated that he understood, but said that "[he]
should be able to express [his] feelings." CP at 431. Aronow's notes from December 28
indicate: "if his behavior continues he may need to look at male staff only." CP at 432.
Aronow reminded Williams that he must take his medications regularly or she would
contact the Bi-County Crisis Unit.
On January 6, 2012, Adam Williams met with Lourdes Health Network licensed
mental health counselor Cynthia Wallace. Wallace's notes from the meeting read:
He spent the entire session leering at mhp [wallace] .... Adam stated
I know 3 things about myself, "I need a women [sic], I love
methamphetimines and I am an instrument of god." . . . He reported that
"my grandma is part of a plot against me." Adam went onto [sic] describe
how she is part of a conspiracy to do him harm. [Wallace] challenged him
on this, asking him to provide evidence. He had non [sic] but remains
convinced. Adam also reported that he is not getting along with his dad, "I
hate him."
CP at 442 (some capitalization omitted).
On January 11, 2012, Adam Williams and Linda Schroeder, a Lourdes Health
Network PACT member, met with State Division of Vocational Rehabilitation (DVR)
staff to discuss employment. Schroeder wrote concerning the drive to the division office:
I drove Adam to DVR for a meeting. On the way there I reminded
him that he has an appointment tomorrow with Steve [a Lourdes
employee]. Adam said "I'm not coming. I don't want to see any of the
men from the PACT team .... " I told him we couldn't force him since this
is a volunteer program but it would be beneficial to him.
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CP at 445. (emphasis added). Schroeder wrote about the meeting with the Division of
Vocational Rehabilitation:
I tried to reason with him [Williams] a little bit so that Jim [James
Bischoff, a vocational counselor employed by DVR] might work with him
in the future. Adam calmed for a minute and then got annoyed again and
stood up and said "I'm done and out of here." Both Jim and Adrianna [a
DVR employee] were concerned at Adam's hostile mood and dark looks he
was giving and the fact that I was transporting him from the meeting. Jim
asked me to call him when I dropped Adam off. When we got in the car,
Adam said "I'm sorry but that guy was making me mad. I know he was
trying to trick me and I wasn't going to stand for it." Adam's shoulder
twitched every so often and his head jerked. I mentioned to Adam about
the CD [chemical dependency] group tomorrow at 10 and he said "I don't
like that group. I don't [like] the lady that runs it." I asked him why and he
said "she's an alien and has lost her life. I haven't lost mine because God
saved me." ... Adam is displaying anti-social tendencies and staff suspect
he is using street drugs.
CP at 446.
Following the January 11 meeting with Adam Williams and Linda Schroeder,
DVR counselor James Bischoff wrote:
Adam was disheveled, poor complexion, appeared agitated, gave
very little eye contact, and would not respond much to questions or small
talk. Linda from the Lourdes PACT team was present as well as Adriana
from Service Alternatives. In my office, Adam stated that he does not want
to work. ... When YRC [I] ... said we would close his DVR case he
became more agitated. He made a statement saying that he wanted to leave
and YRC escorted him out and he became more paranoid and then almost
ran out of the building. Adam is not currently in a stable state of mind to
work and his DVR case is being closed.
CP at 448.
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On January 16, 2012, Lourdes Health Network nurse Teresa Chandler e-mailed
concerns about Adam Williams' behavior to the rest of the Lourdes PACT team:
Adam came in this morning to get his check and i was supposed to
fill his med box. Adam had the excuse that his med box "dropped on the
ground and shattered, my meds went all over the place, I had to throw them
away.". . . He is obviously not taking them. He has been getting odder
every day. Today he looked horrible ... Dishevled, smelly, and Linda said
he smelled like alcohol. He became very agitated when I pointed out it was
obvious he is not taking his medication and hasn't been for quite some
time .... How long are we going to let this go before we revoke him? I
thought early detection and intervention was our goal. He's getting so
much worse. . . . I don't want to be any where in a room alone with him.
Help . .. Teresa
CP at 450. (some capitalization omitted) (emphasis added).
On January 18, 2012, Linda Schroeder retrieved Adam Williams from his
home and drove him to the Lourdes Health Network office for a medication
management appointment with Michelle Aronow and for an evaluation by the
Crisis Response Unit to evaluate whether he should be detained. Due to bad
weather, however, the Unit cancelled its portion of the appointment. Schroeder
wrote of her observations of Williams during their drive to the Lourdes office:
The first thing he said to me was "How's you and your husband
doing? Are you getting it on?" I immediately put a stop to that
conversation going any further and he apologized. . . . I asked Adam if he
took his medications today and he said "I took some. I only take them
when he tells me I need them." I said he? and he said "You know God.
God will tell me when I need to take my meds and when he does I take
them." ... Adam's appearance is [disheveled] and clothes are dirty. He has
several sores around his mouth.
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CP at 452.
Despite the Crisis Response Unit's cancellation of its meeting on January 18,
Michelle Aronow spoke with Adam Williams about medication management. Aronow
observed:
The patient [Adam Williams] presented to the facility casually
dressed, however, somewhat disheveled. Continues to not shave or wash
his hair or clean his clothes. He continues to reference this as wanting to
feel scum on his body and does not believe in using soap any longer. He
says cleanliness is next to Godliness inside not on the outside. . . . I asked
where the medication boxes were, and he said that they broke, and he does
not know where they are at this time.
. . . I continue to get complaints of his sexual inappropriate
discussions with female staff. He does admit that he is attracted to "all the
female staff here." When I asked if he has any thoughts of hurting anyone
female staff, he said "oh my God, no, I would never do that." "I just really
really attracted to females, not males Michelle you know that just
females."[ sic]
... I explained to the patient quite categorically in regards to his
least restrictive alternative and that taking his medications and not using
any drugs or alcohol was very important because I do not want to see him
hospitalized or in jail if at all possible I would like to keep him out stable in
the community, so he can continue to attempt to go to work or go to school
or whatever he may want to do. I explained to him, however, though ifhe
continues with the specific statements that he is making and not taking the
medications or using drugs, then I believe that his insight and judgment will
continue to deteriorate and then he would need to speak with the Crisis
Response Unit people, which I explained who they were and that they can
make the decision whether or not to put him back in the hospital. He stated
an understanding, and he stated he did not want to talk to these people.
CP at 455-56.
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After Adam Williams' medication management appointment on January 18, 2012,
Linda Schroeder chauffeured Adam Williams to the bank and grocery store. Schroeder
noticed that Williams quietly spoke and laughed to himself while shopping. On returning
to Williams' home, Schroeder espied a pile of over fifty black capsules on the floor.
Williams walked around the capsules. Schroeder did not ask what the capsules
contained, but she gave Williams medication boxes and left the home.
In its brief, Lourdes Health Network writes that, on January 23, 2012, Adam
Williams went to the PACT office and had the competency to state that someone he knew
needed help and he wanted to know how to make this happen. The citation given for this
statement of fact is a trial court brief, not an affidavit or declaration.
On January 25, 2012, Lourdes PACT member Linda Schroeder requested Lourdes
nurse Michelle Aronow meet with Adam Williams. Aronow visited Williams at the
Lourdes office and observed that Williams appeared disheveled and dirty, with long dirty
fingernails. Williams told Aronow that he had "been with the creator" that the "creator
does favors for me and for other people," and that he had been using "ice," a form of
crystal methamphetamine. CP at 470. Williams stated that he still took his medications,
but he did not bring his medication box for a refill. Aronow reminded Williams that he
must take his medications and refrain from using drugs in order to comply with the less
restrictive alternative order. Aronow asked Williams to submit to a blood test and urine
screen, but Williams declined. He commented: "I don't want to have my blood out
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there." Williams admitted that he would test positive for methamphetamine use. CP at
470. Aronow then received a call regarding another Lourdes patient.
Lourdes nurse Michelle Aronow and Crisis Response Unit mental health
professional Kathleen Laws present differing versions of events that transpired later on
January 25, 2012. According to Aronow, she called the Crisis Response Unit and
requested an evaluation of Williams and another patient. Aronow wrote in a chart note:
I wanted Kathleen from CRU to see the patient due to the
noncompliance as best as we can tell in regard to his medication as well as
his continued drug use. He also has been making some sexual statements to
staff, which is making many of the female staff here quite unsettled and
obviously fearful of this particular patient if in fact he is not taking his
medication, and I felt that CRU needed to at least evaluate him and decide
if his LRA needed to be revoked.
CP at 4 71-72. Aronow also wrote in her notes that Kathleen Laws and she met and
discussed Williams, after which Laws evaluated Williams for twenty to thirty minutes.
During the meeting, Williams denied wanting to hurt anyone.
According to Kathleen Laws, she journeyed to the Lourdes Health Network office,
on January 25, to evaluate another patient and, on her travel to Lourdes, a Lourdes
employee requested that she remind Adam Williams of conditions for a less restrictive
alternative placement. Nevertheless, Laws' contemporaneous notes state: "PACT
Team's - Michelle Aronow - requested an eval." CP at 97. Laws' notes record she
spent thirty minutes of "client time." CP at 95. In her deposition, Laws testified that her
entire meeting with Williams lasted only five minutes and the remaining "client time"
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referred to travel and note taking. CP at 354. Laws declared that, at the time of the
meeting, she lacked a history for Williams and she did not meet with Aronow about him.
On January 26, 2012, Adam Williams returned to Lourdes Health Network to refill
his medication box. A Lourdes nurse called Michelle Aronow and said that "he was
acting very strange-reading a Bible aloud and talking to someone who was not there ... "
CP at 656. Aronow then called Crisis Response Unit employee Kathleen Laws. The two
differ as to the content of the phone conversation. Aronow wrote
called CRU and talked to Kathaleen [sic] Laws as she was the one
who [ ] spoke with him yesterday in my office. I told her he had in fact
come back to the office and filled his med box-but the nurse had observed
some bizarre behavior of him talking to someone that wasn't there and
reading the Bible aloud .... [She said he] evidenced [good] judgment by
coming back and getting his med box filled, but talking to himself is typical
with his diagnosis. [Aronow] stated to her again that staff continue to be
fearful of him and [she did] not want him to be alone with a female staff as
Linda was to take him shopping this Friday. She agreed that was a good
plan to have only males. [Aronow] said [she] would take a male staff out
with [her] Monday am and see if he has been taking his medication. She
agreed. She said-then if he has not been and you want him revoked-we
will revoke him as he has been explained what is in the LRA-
CP at 656.
Kathleen Laws testified that Michelle Aronow called to notify her that Adam
Williams thanked her for Laws speaking to him. Aronow repeated Williams' comment
that he would obey his less restrictive alternative order.
19
No. 33201-2-111
Lennox v. Lourdes Health Network
According to Lourdes Health Network's brief, PACT team member Linda
Schroeder had thirteen contacts with Adam Williams between December 29, 2011, and
January 26, 2012.
On January 27, 2012, Adam Williams visited his grandmother Viola Williams'
house. He then believed himself to be Lucifer Grand Am Dynasty and that God directed
him to kill his grandmother. He brutally murdered his grandmother in a manner too
bizarre and egregious to describe. A court later found him not guilty of first degree
murder by reason of insanity. During his psychological evaluation following the murder
charge, the doctor wrote: "The medications he was taking at the time of the murder
represented a total failure in treatment." CP at 408.
PROCEDURE
Sherrie Lennox, as personal representative of the Estate of Viola Williams, sues
Lourdes Health Network and Benton-Franklin County Crisis Response Unit. Both
defendants filed summary judgment motions.
In opposition to Lourdes Health Network's and Crisis Response Unit's motions
for summary judgment motion, Sherrie Lennox's expert witness, Matthew Layton, signed
a declaration listing conduct of both Bi-County Crisis Unit and Lourdes he concluded
was "grossly negligent." CP at 547. Layton is a board certified psychiatrist and
professor at the College of Medical Sciences at Washington State University. He
reviewed the records of the Crisis Response Unit and Lourdes Health Network.
20
No. 33201-2-III
Lennox v. Lourdes Health Network
Pertinent portions of the declaration read:
4. From 2000 to 2008, I was the Medical Director of Spokane
Mental Health, a community mental health organization with multiple
outpatient clinics and inpatient evaluation and treatment facilities. In that
capacity, I oversaw the psychiatric administration of a Program for
Assertive Community Treatment (PACT). In addition, the Designated
Mental Health Professionals were employees of Spokane Mental Health.
The DMHPs made decisions about detention of individuals under the
Involuntary Treatment Act. As Medical Director, I oversaw work of the
DMHPs and was part of their decision making process.
8. The August 1, 2011 evaluation of Adam Williams by DMHP
Cameron F ordmeir was grossly negligent.
a. Mr. Fordmeir failed to adequately review CRU's own notes on
Mr. Williams. CRU's notes showed that Mr. Williams posed an increased
risk of violence when he is off his medication. The CRU notes also showed
that he was at high risk to victimize his parents and to be a threat to others.
b. Mr. Fordmeir did not apply the criteria for revocation of a
conditional release under a Less Restrictive Alternative but rather evaluated
Mr. Williams as though he was not already subject to the Involuntary
Treatment Act. The criterion to revoke a LRA does not require a showing
of imminent danger. It only requires a showing there is an increased
likelihood of serious harm.
c. Mr. Fordmeir failed to review the treatment notes from the PACT
team. Had he done so, he would have learned that Adam Williams has very
poor judgment, was refusing to participate in substance abuse treatment,
had used street drugs before this hospitalization, failed to appear for his lab
work, and was not consistently taking his medication.
d. Mr. Fordmeir also failed to evaluate Adam Williams' risk of
harm to other people. While, Mr. Fordmeir asked Mr. Williams ifhe was
going to hurt himself or someone else and Mr. Williams said no, the
literature shows that this is ineffective in determining risk.
e. Even with the information Mr. Fordmeir did have, he should have
revoked Mr. Williams' LRA. Mr. Williams violated the terms of his LRA
and this violation led to an increased risk of serious harm to himself. Mr.
Williams had admitted to violating his LRA. He was using street drugs and
failing to take his medication. He was hospitalized for potassium depletion,
21
No. 33201-2-III
Lennox v. Lourdes Health Network
the result of his methamphetamine and cocaine use. . . . Revocation of the
LRA and hospitalization at that time would have stabilized him.
9. Kathleen Laws January 25, 2011 evaluation of Mr. Williams was
grossly negligent.
a. Ms. Laws failed to use the appropriate standard for evaluating
Mr. Williams' for a revocation of his LRA. Like Mr. Fordmeir, Ms. Laws
used the criteria for evaluating Mr. Williams as though he was not already
detained under the Involuntary Treatment Act rather revocation of an LRA.
b. Ms. Laws' deposition testimony is that she spent only five
minutes with Mr. Williams. This is not sufficient time to do a competent
evaluation. Ms. Laws testified in her deposition that she did not know Mr.
Williams' diagnosis at the time of the evaluation.
c. Ms. Laws' deposition testimony indicates that she was only there
to remind Mr. Williams to take his medication. This is an abdication of her
responsibility to make an independent evaluation of Mr. Williams. The
expectation is that a DMHP conduct an evaluation and use his or her
clinical judgment to see if a revocation should occur.
e. Ms. Laws failed to review the notes of the PACT team. Ms.
Laws did not know of Mr. Williams' violent history or history of
noncompliance with the terms of his LRA ....
f. Ms. Laws should have revoked Mr. Williams when he declined to
take the do the [sic] "Gain-SS Form."
g. Ms. Laws erred in taking Adam Williams at his word that he
would follow the conditions of his LRA, when he had made these promises
multiple times in the past.
10. The PACT Team was grossly negligent in their supervision,
monitoring and reporting of Adam Williams' compliance with his LRA.
a. The PACT team failed to inform CRU that Mr. Williams
regularly violated every term of his LRA. These violations included using
methamphetamines and other street drugs, repeatedly failing to take his
medication, failing to attend substance abuse treatment, and revoking his
release of information to contact his family members.
b. Michelle Aronow, ARNP, on the PACT team improperly
monitored Mr. Williams' medications. In November, 2011 she
discontinued Mr. Williams' Clozaril because he was noncompliant.
Clozaril is a medication that should not be started and stopped abruptly.
Literature shows that Clozaril is far more effective for patients like Mr.
Williams and in combination with other medications improved his
22
No. 33201-2-111
Lennox v. Lourdes Health Network
psychotic symptoms and decreased his risk for violence enough to allow his
conditional release back to the community. Mr. Williams' psychotic
symptoms had been stabilized at Eastern State and for several years on
Clozaril. Discontinuing the Clozaril was not medically indicated. Once
she did discontinue the Clozaril, Ms. Aronow should have tapered the
Clozaril rather than abruptly discontinuing it. Mr. Williams became
increasingly psychotic after this medication change. Ms. Aronow failed to
increase the dosage of the new medication or increase the monitoring of the
medications as Mr. Williams psychotic symptoms steadily increased. The
combination of the change in medication and the use of street drugs caused
Mr. Williams to rapidly decompensate.
c. The PACT team misunderstood the nature of Mr. Williams'
participation in the program. The PACT team viewed this participation as
voluntary. Mr. Williams was on a LRA because he was found unable
and/or unwilling to voluntarily consent to treatment.
d. The PACT team failed to notify CRU when Mr. Williams became
sexually preoccupied, developed command hallucinations, and attempted to
sexually assault two female staff members.
e. The PACT team knew that Mr. Williams was dangerous. Female
staff were afraid to be alone with Mr. Williams .... Yet, PACT failed to
notify CRU of this dangerousness.
f. The PACT team failed to notify CRU of Mr. Williams' rapid
decompensation, and increased psychosis. The medical record is clear that
the PACT team should have requested revocation by not later than January
6th, 2014. His paranoid delusions and his erratic behavior in a meeting
with Cynthia Wallace show that he was so decompensated he needed to be
in the hospital.
12. CRU had the legal authority to detain Mr. Williams on January
25 and January 26, 2012 .... Had CRU detained [sic] Adam Williams
would have been in the hospital on January 27, 2012, the date Viola
Williams was murdered. Further when the case came before a judge, it is
my experience that judges usually order detention and continued detention
when requested by the DMHP ....
CP at 543-47.
In a deposition, Lourdes Health Network asked Dr. Matthew Layton:
23
No. 33201-2-III
Lennox v. Lourdes Health Network
Q. And sometimes that requires a judgment decision whether you
ask for a revocation of an LRA or decide not to?
A. It may, yes.
CP at 897.
The Crisis Response Unit filed a motion to strike Dr. Matthew Layton's
declaration. The Unit argued that the declaration improperly offered a legal opinion. The
Unit also argued that the court should not consider Layton's testimony, in paragraph
twelve of his declaration, as to how a judge usually rules.
The trial court struck those portions of Matthew Layton's declaration referring to
gross negligence because of the conclusory nature of the testimony. The trial court also
struck Layton's testimony, in paragraph twelve, concerning how a judge usually rules.
The trial court granted both Lourdes Health Network's and the Crisis Response Unit's
summary judgment motions. The court concluded that affidavits established that both
defendants exercised more than slight care in that they had frequent contact with Adam
Williams.
LAW AND ANALYSIS
Matthew Layton Declaration
Sherrie Lennox contends the trial court erred in striking portions of her expert's
declaration. We do not consider the declaration of Matthew Layton important to the
resolution to this appeal. Therefore, we do not address this assignment of error.
24
No. 33201-2-III
Lennox v. Lourdes Health Network
Lourdes Health Network Summary Judgment
Gross Negligence
On appeal, Lourdes Health Network contends that the undisputed evidence shows
it was not grossly negligent. Also, Lourdes argues that Lennox cannot establish
proximate cause. The first issue is whether questions of fact exist as to any gross
negligence by Lourdes Health Network. We answer in the affirmative.
Sherrie Lennox claims that Lourdes Health Network should have recommended
and encouraged the Crisis Response Unit to revoke Adam Williams' least restrictive
alternative status and return him to involuntary commitment at a hospital. When the
plaintiff claims the mental health professional should have detained the patient, the
plaintiff is claiming the professional should have involuntarily committed the patient.
Volk v. DeMeerleer, 184 Wn. App. 389,424, 337 P.3d 372 (2014), review granted, 183
Wash. 2d 1007, 352 P.3d 188 (2015). Under such circumstances, RCW 71.05.120 controls
and the mental health professional is entitled to immunity under the statute. Volk v.
DeMeerleer, 184 Wash. App. at 424.
RCW 71.05.120 bestows incomplete immunity on Lourdes Health Network.
RCW 71.05.120 provides, in pertinent part:
[No] county designated mental health professional, nor state, a unit
of local government, 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 rp.edications, or detain a person for evaluation and treated:
25
No. 33201-2-111
Lennox v. Lourdes Health Network
PROVIDED, That such duties were performed in good faith and without
gross negligence.
RCW 71.05.120(1). An exception in the statute is gross negligence.
As a result of assuming Adam Williams' outpatient care, Lourdes Health Network
undertook certain duties ungrammatically outlined in former RCW 71.05.340 (2009).
Those duties included:
(3)(a) If the hospital or facility designated to provide outpatient care,
the designated mental health professional, or the secretary determines that:
(i) A conditionally released person is failing to adhere to the terms
and conditions of his or her release;
(ii) Substantial deterioration in a conditionally released person's
functioning has occurred;
(iii) There is evidence of substantial decompensation with a
reasonable probability that the decompensation can be reversed by further
inpatient treatment; or
(iv) The person poses a likelihood of serious harm.
Upon notification by the hospital or facility designated to provide
outpatient care, or on his or her own motion, the designated mental health
professional ... may order that the conditionally released person be
apprehended and taken into custody and temporarily detained in an
evaluation and treatment facility ....
(b) The hospital or facility designated to provide outpatient treatment
shall notify the secretary or designated mental health professional when a
conditionally released person fails to adhere to terms and conditions of his
or her conditional release or experiences substantial deterioration in his or
her condition and, as a result, presents an increased likelihood of serious
harm. The designated mental health professional ... shall order the person
apprehended and temporarily detained in an evaluation and treatment
facility ....
Former RCW 71.05.340 (2009) (emphasis added).
Deviations from the duties under RCW 71.05 .340 must be judged against the gross
26
No. 33201-2-III
Lennox v. Lourdes Health Network
negligence standard. "Gross negligence" is negligence substantially and appreciably
greater than ordinary negligence. Nist v. Tudor, 67 Wash. 2d 322, 331, 407 P.2d 798
( 1965). "Gross negligence" also means the failure to exercise slight care. Nist v. Tudor,
67 Wash. 2d at 331. "Gross negligence" does not mean the total absence of care, but care
substantially or appreciably less than the quantum of care inhering in ordinary
negligence. Nist v. Tudor, 67 Wash. 2d at 331; Johnson v. Spokane to Sandpoint, LLC, 176
Wash. App. 453,460, 309 P.3d 528 (2013).
Lourdes Health Network forwards six decisions in which Washington courts
rejected argument on appeal that a defendant's conduct constituted gross negligence.
O'Connell v. Scott Paper Co., 77 Wn.2d 186,460 P.2d 282 (1969); Johnson v. Spokane
to Sandpoint, LLC, 176 Wash. App. 453; Whitehall v. King County, 140 Wash. App. 761, 167
P.3d 1184 (2007); Estate ofDavis v. Dep 't of Corr., 127 Wash. App. 833, 113 P.3d 487
(2005); Kelley v. Dep 't of Corr., 104 Wash. App. 328, 17 P.3d 1189 (2000); and Boyce v.
West, 71 Wash. App. 657, 862 P.2d 592 (1993). I~ Boyce v. West, Boyce neither alleged
gross negligence in her complaint, nor provided the court with any evidence supporting
an allegation of gross negligence. Boyce presented excerpts of the deposition testimony
of her expert. In those excerpts, the expert expressed his opinion that the defendant
.committed negligence, but said nothing about gross negligence.
In Kelley v. Department of Corrections, Kevin Ingalls assaulted Deborah Kelley
while he was on community custody status. Kelley argued Ingalls' correction officer
27
No. 33201-2-111
Lennox v. Lourdes Health Network
should have returned Ingalls to prison because of community custody conditions
violations. The only evidence presented was that Ingalls was not in violation of
conditions, except for one violation unknown to the community corrections officer.
Kelley also contended that the corrections officer failed to make all the required field
contacts with Ingalls. Nevertheless, the undisputed evidence showed that any additional
contacts would not have prevented the assault.
In Whitehall v. King County, Serena Whitehall sued King County for negligently
supervising a misdemeanant. This court affirmed a summary judgment dismissal of the
claim. Probation officers consistently met with the probationer and checked to determine
if he met his probation conditions. On one occasion when the officers learned that the
probationer could not meet a condition, the officers moved a court to modify probation
terms, and a court granted the motion.
In Estate of Davis v. Department of Corrections, the estate did not claim that the
defendant acted grossly negligently, but argued immunity did not apply under RCW
71.05 .120 because the defendant did not assess the patient under the Involuntary
Treatment Act. Lourdes Health Network mistakenly contends this court held the
defendant, in Davis, not to be grossly negligent. We held the defendant to owe no duty.
We believe the facts read in a light most favorable to Sherrie Lennox are more
analogous to the facts in Bader v. State, 43 Wash. App. 223, 716 P.2d 925 (1986) and
Petersen v. State, 100 Wash. 2d 421, 671 P.2d 230 (1983). In Bader v. State, this court
28
No. 33201-2-III
Lennox v. Lourdes Health Network
reversed summary judgment in favor of a treatment center in a suit for failure to detain a
mental health patient. We concluded that the jury could have found the center grossly
negligent when it knew that its patient missed appointments, refused to take his medicine,
exhibited paranoid behavior, threatened violence, and violated conditions of his release
from a hospital. The center failed to report the patient's condition to authorities.
In Petersen v. State, Larry Knox, while under the influence of drugs, sped through
a red light, hitting and injuring Cynthia Petersen. Earlier, while at Western State
Hospital, Knox was diagnosed as having a schizophrenic reaction to the use of "angel
dust." His treating physician knew that he was potentially dangerous, that he disliked
taking prescribed medication, and that he was likely to relapse. Nonetheless, the
physician chose not to petition the court for commitment and released him. Five days
after release from Western State Hospital, Knox drove into Petersen. Based on these
facts, the court affirmed a jury finding of gross negligence. Though the court decided
Petersen before enactment ofRCW 71.05.120, gross negligence was the applicable
standard because Petersen presented no expert testimony.
Appellate courts review summary judgment de novo. Heath v. Uraga, 106 Wn.
App. 506, 512, 24 P.3d 413 (2001). Summary judgment is appropriate when there is no
genuine issue of material fact and that the moving party is entitled to a judgment as a
matter oflaw. CR 56(c). The burden is on the party moving for summary judgment to
demonstrate there is no genuine issue of material fact. Folsom v. Burger King, 135
29
No. 33201-2-III
Lennox v. Lourdes Health Network
Wn.2d 658,663,958 P.2d 301 (1998). All facts and reasonable inferences are viewed in
the light most favorable to the non-moving party. Folsom, 135 Wash. 2d at 667. Where
different competing inferences may be drawn from the evidence, the issue must be
resolved by the trier of fact. Johnson, 176 Wash. App. at 457-58.
Under the facts favorable to Sherrie Lennox, Lourdes Health Network saw
Williams deteriorating. Lourdes knew Williams thought he conversed with God, was
sexually preoccupied, believed his grandmother engaged in a conspiracy against him, and
used methamphetamines. Lourdes understood that Williams had a history of violence.
Lourdes knew that he groped one of its employees, and hit his father while under their
supervision. Lourdes observed that Williams skipped appointments and rejected his
medications. In short, Lourdes Health Network knew that Adam Williams violated the
conditions of his less restrictive alternative release and that he was dangerous, but never
requested Crisis Response Unit to revoke the less restrictive alternative status. Although
Lourdes contends its employee's testimony only meant to state Williams' use of its
services was voluntary, the trier of fact could conclude that Lourdes considered
Williams' participation voluntary rather than compelled by court order that should be
revoked if Williams violated conditions of the order.
On January 16, 2012, Lourdes Health Network nurse Teresa Chandler e-mailed
concerns to other Lourdes employees pleading for help, because she did not wish to be
present with Adam Williams alone. Chandler questioned: "How long are we going to let
30
No. 33201-2-III
Lennox v. Lourdes Health Network
this go before we revoke him?" CP at 450 (some capitalization omitted). An employee
requested an evaluation from the Crisis Response Unit, but still no Lourdes' employee
requested that the unit revoke the release.
Lourdes Health Network contends that, because it provided some care and because
it had scores of contact with Adam Williams, it must not be grossly negligent. Lourdes
may believe the provision of some care necessarily means the care it provided was more
than slight care. We disagree. "Gross negligence" does not mean the total absence of
care. Simply engaging in contact with the patient does not exclude the possibility of
gross negligence. Also, the more contact Lourdes had with Williams, the more
knowledge it gained of the need to revoke and the more opportunities arose to encourage
the Crisis Response Unit to revoke the less restrictive alternative release.
Lourdes Health Network contends that Sherrie Lennox's own experts admit that
whether Lourdes should have taken actions to commence the process of having Adam
Williams detained was a judgment call. On this assumed fact, Lourdes contends that a
mere error in judgment does not constitute negligence, let alone gross negligence. We
reject this argument because Lourdes misstates the testimony of Dr. Matthew Layton.
Layton testified that sometimes the decision to revoke a less restrictive alternative status
involves a judgment call. He did not testify that Lourdes' failure under these
circumstances entailed a judgment call.
Lourdes Health Network claims that Matthew Layton testified that Lourdes need
31
No. 33201-2-111
Lennox v. Lourdes Health Network
not have taken any steps to seek institutionalization of Adam Williams until January 6,
2012. Lourdes again misstates the testimony. Dr. Layton testified that Lourdes should
have taken these steps at least by January 6.
Lourdes Health Network argues that it met any duty by asking the Crisis Response
Unit to evaluate Adam Williams. This argument fails to note the extensive knowledge
Lourdes possessed concerning the danger posed by Williams and his repeated violations
of the less restrictive alternative court order. The argument also fails to note Lourdes
staff members, including mental health counselors, could have strongly recommended to
the Crisis Response Unit to revoke the release, which recommendation likely would lead
to notification of the court under RCW 71.05.340(3)(d).
Proximate Cause
Lourdes Health Network argues that, as a matter of law, Sherrie Lennox cannot
establish proximate cause. Lourdes contends there is no evidence that shows that, but for
Lourdes' failure to recommend detaining Williams on January 6, 2012, he would not
have killed Viola Williams. Lourdes also argues that the Crisis Response Unit's alleged
gross negligence is a superseding cause severing the causal chain.
Proximate cause has two parts: cause in fact and legal cause. Taggart v. State, 118
Wash. 2d 195, 225, 822 P.2d 243 (1992). Factual cause is based on a physical connection
between an act and an injury. Schooley v. Pinch 's Deli Market, Inc., 134 Wash. 2d 468,
478, 951 P.2d 749 (1998). Legal causation rests on considerations of policy and common
32
No. 33201-2-III
Lennox v. Lourdes Health Network
sense as to how far the defendant's responsibility for the consequences of its actions
should extend. Taggart, 118 Wash. 2d at 226. Lourdes argues the absence of both.
Lourdes Health Network contends that the evidence of any alleged negligence
prior to January 6, 2012, lacks relevance because Dr. Matthew Layton testified that
Lourdes need not have sought revocation of the less restrictive alternative placement until
then. As already noted, Lourdes misstates the testimony of Dr. Layton. Layton testified
that Lourdes should have sought institutionalization by January 6, not beginning on
January 6.
Sherrie Lennox contends Lourdes Health Network's ongoing failure to perform its
duties was the cause of Viola Williams' death. This argument draws from all of Lourdes'
interactions with Williams. Establishing cause in fact involves a determination of what
actually occurred and is generally left to the jury. Schooley, 134 Wash. 2d at 478.
Lourdes Health Network's superseding cause argument fails for at least two
reasons. First, the actions of Lourdes and the Crisis Response Unit occurred
concurrently. Second, the Unit's failure of revocation was foreseeable in light of
Lourdes' acts and omissions.
For purposes of causation, Lourdes claims that Sherrie Lennox is bound by a
contention in her complaint that the Crisis Response Unit was grossly negligent. While a
party is generally bound by statements of fact in her complaint, allegations of gross
negligence are not statements of fact, but rather legal conclusions. Neilson v. Vashon
33
No. 33201-2-111
Lennox v. Lourdes Health Network
Island Sch. Dist., 87 Wash. 2d 955, 958, 558 P.2d 167 (1976); Thompson v. King Feed &
Nutrition Serv. Inc., 153 Wash. 2d 447, 463, 105 P.3d 378 (2005). Legal conclusions are
treated differently than statements of fact. See e.g. Rodriguez v. Loudeye Corp., 144 Wn.
App. 709, 717-18, 189 P.3d 168 (2008). Lennox cannot be estopped from arguing in the
alternative nor from arguing concurrent tortfeasors, particularly in light of our later ruling
that facts do not support gross negligence on the part of the Crisis Response Unit.
Lourdes Health Network contends that gross negligence is not foreseeable as a
matter of law. Therefore, according to Lourdes, the Crisis Response Unit's alleged gross
negligence is a superseding cause. Lennox posits that the Crisis Response Unit's failure
to revoke Adam Williams' less restrictive alternative release was foreseeable from
Lourdes' failure to insist on revocation. Lennox also claims that this appeal involves
multiple defendants and an indivisible injury, and, therefore, a superseding cause analysis
is inapplicable.
There can be more than one proximate cause of an injury. Tortfeasors may act
independently and breach separate duties, yet the conduct of both may concur to produce
the injury. Stephens v. Omni Ins. Co., 138 Wash. App. 151, 182-83, 159 P.3d 10 (2007),
aff'd, 166 Wn.2d 27,204 P.3d 885 (2009). Concurrent negligence of a third party does
not break the chain of causation between original negligence and the injury. Travis v.
Bohannon, 128 Wn. App. 231,242, 115 P.3d 342 (2005). If the defendant's original
negligence continues and contributes to the injury the intervening negligence of another
34
No. 33201-2-111
Lennox v. Lourdes Health Network
is an additional cause. Travis v. Bohannon, 128 Wash. App. at 242. It is not a superseding
cause and does not relieve the defendant of liability. Travis v. Bohannon, 128 Wash. App.
at 242. Only intervening acts which are not reasonably foreseeable are deemed
superseding causes. Anderson v. Dreis & Krump Mfg. Corp., 48 Wash. App. 432, 442, 739
P .2d 1177 (1987).
The Supreme Court, in Campbell v. !TE Imperial Corp., 107 Wash. 2d 807, 812-13,
733 P.2d 969 (1987), listed factors courts should consider when determining whether an
intervening cause is a superseding cause:
[T]he relevant considerations under Restatement (Second) of Torts
§442 (1965) are, inter alia, whether (1) the intervening act created a
different type of harm than otherwise would have resulted from the actor's
negligence; (2) the intervening act was extraordinary or resulted in
extraordinary consequences; (3) the intervening act operated independently
of any situation created by the actor's negligence.
The Campbell court quoted Restatement (Second) of Torts §449 (1965):
[i]f the likelihood that a third person may act in a particular manner
is ... one of the hazards which makes the actor negligent, such an act
whether innocent, negligent, intentionally tortious, or criminal does not
prevent the actor from being liable for harm caused thereby.
Campbell, 107 Wash. 2d at 813.
No Washington case directly addresses whether gross negligence is unforeseeable
as a matter of law. Therefore, in order to support its contention, Lourdes forwards
foreign law. Nevertheless, Washington's Campbell analysis is sufficient to determine
whether gross negligence is always unforeseeable. In Campbell, the court quoted the
35
No. 33201-2-111
Lennox v. Lourdes Health Network
Restatement (Second) of Torts, which declares that intervening criminal conduct of a
third party can be foreseeable. It would be illogical to conclude gross negligence of a
third party to be less foreseeable than criminal acts of a third party. Thus, we reject
Lourdes' contention that gross negligence is unforeseeable as a matter oflaw.
Since gross negligence can be foreseeable, the question is whether facts on appeal
support gross negligence's foreseeability. The record includes facts to support the
conclusion that, if Lourdes requested revocation, the Crisis Response Unit would have
revoked the less restrictive alternative release. Lourdes never made that request. A
reasonable jury could find that Lourdes' conduct was a proximate cause. Facts also
support the Crisis Response Unit and Lourdes Health Network to be concurrent
tortfeasors. Both parties chose not to act, and that inaction resulted in an indivisible
harm: the death of Viola Williams.
Bi-County Crisis Response Unit Summary Judgment
We previously reviewed the summary judgment principles and rules of gross
negligence. Based on the foregoing, we conclude insufficient evidence supports a claim
for gross negligence against the Crisis Response Unit. The Unit had some, but limited,
contact with Adam Williams. The Spokane court order directed Lourdes Health
Network, not the Crisis Response Unit, to monitor Williams. Lourdes never
recommended revocation of the less restrictive alternative release. In Bader v. State, 43
Wash. App. 223 (1986) and Petersen v. State, 100 Wash. 2d 421 (1983), only the entity that
36
No. 33201-2-III
Lennox v. Lourdes Health Network
directly oversaw the treatment of the patient was held responsible under gross negligence.
Dr. Matthew Layton criticizes Crisis Response Unit designated mental health
professionals Cameron Fordmeir and Kathleen Laws for deficient evaluations.
According to Layton, Fordmeir employed a wrong test for revocation of the less
restrictive alternative placement. Fordmeir failed to review all of Lourdes records.
Nevertheless, he reviewed Kadlec Medical Center records and spoke with Adam
Williams' father. Whereas, we agree Fordmeir's evaluation could be found negligent, we
do not discern the absence of slight care or gross negligence. Williams acted
appropriately for weeks after Fordmeir's evaluation.
Lourdes Health Network's nurse Michelle Aronow and Crisis Response Unit's
designated mental health professional Kathleen Laws disagree concerning events
surrounding Laws' January 25, 2012 evaluation of Adam Williams. Laws claims she was
only asked to remind Adam Williams to follow the court order. Aronow indicates that
she asked Laws to evaluate Williams for revocation of his release. Laws says the
meeting lasted five minutes. Aronow says it lasted thirty minutes. The two disagree as to
the amount of information Aronow provided Laws. Both agree that there had not been a
previous appointment to perform an evaluation. According to Laws, she went to Lourdes
Health Network that day to evaluate someone else. Aronow did not insist to Laws that
the lesser restrictive alternative order be revoked. Aronow's notes do not indicate that
she explained the full history of Williams to Laws. During the meeting, Williams denied
37
No. 33201-2-III
Lennox v. Lourdes Health Network
wanting to hurt anyone. Again, we do not observe an absence of slight care.
Since we hold that insufficient facts support any finding that the Crisis Response
Unit engaged in gross negligence, we need not address whether any conduct of the unit
proximately caused the death of Viola Williams.
CONCLUSION
We reverse the summary judgment dismissal of defendant Lourdes Health
Network. We affirm the summary judgment dismissal of defendant Crisis Response
Unit.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
'22~w~ -ff·
Siddoway, J. '
38