Sandra Kipfer v. Providence Health & Services ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SANDRA G. KIPFER, a married
person, No. 81155-0-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
PROVIDENCE HEALTH & SERVICES
- WASHIGNTON, a Washington
Corporation, d/b/a PROVIDENCE
EVERETT MEDICAL CENTER and
d/b/a PROVIDENCE MEDICAL LABS,
Respondent.
APPELWICK, J. — Kipfer appeals the trial court’s grant of summary judgment
on her negligence claim. She alleged that the hospital failed to warn her that a
chair with a footrest that Kipfer was directed to sit in was not stationary but instead
swiveled. The trial court concluded that the medical negligence statute applied,
expert testimony on the standard of care was required, and granted summary
judgment. As a matter of law chapter 7.70 RCW did not apply. We reverse and
remand for trial.
FACTS
On September 30, 2016, Sandra Kipfer went to the Providence Everett
Medical Center for a blood draw. Upon entering the lab, the phlebotomist told her
to sit in a chair. The chair in the lab was a swivel chair with a foot rest. Kipfer
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stepped on the foot rest to lift herself onto the chair. When she did this, the chair
swiveled, causing her to fall on the floor. She hit her head on a metal cart, tore the
skin on her left arm, and hit her shoulder and left hip during the fall. She was taken
to the emergency room and treated for her injuries.
The phlebotomist was not assisting Kipfer into the chair or rendering any
type of medical care to her when she fell. As Kipfer entered the lab, the
phlebotomist sat down at her computer and asked Kipfer her name so she could
pull up her records for the procedure. The computer was not located where she
could see what was happening, but she heard Kipfer fall.
Kipfer sued Providence for negligence. She alleged that Providence
employees had failed to warn her about the chair, maintain the chair in a safe way,
or otherwise maintain the safety of the premises. Her complaint did not allege
medical malpractice.
Providence moved for summary judgment. It alleged that Kipfer’s suit was
governed by chapter 7.70 RCW, which governs suits for injury “arising from health
care.” It further alleged that medical negligence claims governed by chapter 7.70
RCW require expert testimony to establish the appropriate standard of care.
Providence argued that because Kipfer had not introduced competent expert
testimony to establish the appropriate standard of care, her claim must fail.
Kipfer countered that her claim was a general negligence/premises liability
claim, and chapter 7.70 RCW was inapplicable. In the alternative, she argued that
she had submitted competent expert testimony. She pointed to the declaration of
Thomas West, which referenced the report of a defense medical examiner, as well
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as the testimony of two Providence phlebotomists. Providence countered that
chapter 7.70 RCW was applicable regardless of how Kipfer characterized her
complaint, and that none of the experts Kipfer referenced had testified to the
appropriate standard of care.
The trial court granted Providence’s motion for summary judgment. It found
that chapter 7.70 RCW applied to Kipfer’s claim. However, it found that if chapter
7.70 did not apply, then a question of fact would remain on ordinary negligence.
Kipfer appeals.
DISCUSSION
Kipfer argues that the trial court erred in granting Providence’s motion for
summary judgment. She argues that the trial court should not have applied the
chapter 7.70 RCW general requirement that she provide expert testimony to
establish the standard of care to her case. She argues in the alternative that even
if chapter 7.70 RCW applied, she provided competent expert testimony as the
statute generally requires. Providence assigns no error to the trial court’s findings.
Summary judgment is appropriate when there are no issues of material fact
and the moving party is entitled to judgment as a matter of law. CR 56(c). A party
can meet this standard by pointing out to the trial court that the nonmoving party
lacks sufficient evidence to support its case. Guile v. Ballard Cmty. Hosp., 70 Wn.
App. 18, 21, 851 P.2d 686 (1993). We review summary judgment decisions de
novo. Mohr v. Grantham, 172 Wn.2d 844, 859, 262 P.3d 490 (2011).
Chapter 7.70 RCW governs all civil actions based on tort, contract, or
otherwise arising from health care after June 25, 1976. RCW 7.70.010. The
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procedural and substantive modifications set out in chapter 7.70 RCW apply to
such suits regardless of how the suit is characterized. Branom v. State, 94 Wn.
App. 964, 969, 974 P.2d 335 (1999). Expert testimony is generally required to
establish the applicable standard of care in suits under chapter 7.70 RCW. Grove
v. PeaceHealth St. Joseph Hosp., 182 Wn.2d 136, 144, 341 P.3d 261 (2014).
Chapter 7.70 RCW does not define the term “health care.” RCW 7.70.020;
Branom, 94 Wn. App. at 969. We have previously defined “health care” in this
context as “‘the process in which [a physician is] utilizing the skills which [they]
have been taught in examining, diagnosing, treating or caring for [their] patient.’”
Branom, 94 Wn. App. at 969-70 (first alteration in original) (quoting Estate of Sly
v. Linnville, 75 Wn. App. 431, 439, 878 P.2d 1241 (1994)). “The statutory definition
of ‘health care provider’ includes physicians, physician assistants, nurses, and any
‘entity’ employing such persons, including hospitals or an employee or agent
thereof acting in the course and scope of his or her employment.” PeaceHealth,
182 Wn.2d at 144.
Chapter 7.70 RCW “sweeps broadly.” Branom, 94 Wn. App. at 969. But,
its reach is not endless. We have previously declined to apply the requirements
of the chapter to healthcare-related suits for damages unrelated to the delivery of
care. See generally Estate of Sly, 75 Wn. App. at 440 (RCW 7.70.10 did not apply
to a doctor’s misrepresentations to his patient of a prior doctor’s negligence);
Quimby v. Fine, 45 Wn. App. 175, 180-81, 724 P.2d 403 (1986) (a doctor’s
entrepreneurial activities fall outside the scope of health care); Reed v. ANM
Health Care, 148 Wn. App. 264, 272-73, 225 P.3d 1012 (2008) (summary
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judgment inappropriate because a jury could determine that a nurse’s decision to
exclude a patient’s partner from her hospital room was not based on medical
judgment). The “key question” is whether an injury occurs “during ‘the process by
which [a medical professional is] utilizing the skills which [the professional has]
been taught in examining diagnosing, treating or caring for’ the patient.” Reed,
148 Wn. App. at 271 (alterations in original) (quoting Branom, 94 Wn. App. at 969-
70).
We agree with Providence that a blood draw is a medical procedure. We
agree that Kipfer was present as a patient. But, Kipfer’s injury occurred prior to
the beginning of the blood draw. The phlebotomist was not assisting Kipfer into
the chair or rendering any type of care to her. She merely asked Kipfer her name
so she could pull up her records for the procedure. The injuries alleged did not
arise out of health care provided by the phlebotomist.
Kipfer’s complaint alleges that Providence provided an unsafe chair on its
premises that she was directed to use and that caused her injuries. Providence
knew the chair swiveled. The chair had a footrest. It was foreseeable that a person
directed to sit in the chair would step upon that footrest while attempting to sit in
the chair. It was foreseeable that the chair would swivel in response. No
warning—written or oral—was provided by the hospital. The claim was in the
nature of premises liability negligence, not health care professional negligence.
As a matter of law, chapter 7.70 RCW does not apply on these facts. We
therefore hold that the trial court erred in applying chapter 7.70 RCW to Kipfer’s
suit and in granting summary judgment in favor of Providence.
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The trial court’s order on summary judgment also provided that “[i]f [chapter
7.70 RCW] does not [apply], then a question of fact remains on ordinary
negligence.” Error was not assigned to this portion of the order by either party.
We reverse and remand for trial.
WE CONCUR:
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