The case involved a tragic circumstance of a boy who died at age 7 from dehydration and starvation. The lawsuit against DSHS alleged that DSHS had failed to properly investigate multiple prior abuse and neglect complaints. The lawsuit against the boy’s primary care physician and his clinic, and the boy’s psychiatrist, alleged claims for medical malpractice and for failure to report suspected abuse or neglect. The two doctors and the clinic sought dismissal of the failure to report claim on two grounds: (1) the named beneficiaries, who were the boy’s siblings, were not qualified beneficiaries entitled to bring the action under the wrongful death and survival statutes, and (2) RCW 7.70 precluded a separate cause of action against health care providers for failure to report suspected abuse of a patient.

The court first concluded that RCW 26.44.030 (the mandatory reporting statute) implies a civil remedy against mandatory reporters. RCW 26.44.030 imposes criminal liability for failure to report but does not contain a civil remedy. The court relied on its earlier decision that had recognized a civil cause of action against DSHS under RCW 26.44.030 for a negligent investigation of a parent. Next, the court concluded that the exclusive remedy provision of RCW 7.70.030 does not preclude a civil claim under RCW 26.44.030. Stating that “everything within a doctor-patient relationship is not necessarily health care,” the court observed that a doctor’s duty to report suspected child abuse “does not necessarily arise [solely] while the doctor is providing health care.”

The court nevertheless affirmed the lower court’s dismissal of the failure to report claim because the action had not identified any qualified beneficiaries entitled to bring the action under the wrongful death and survival statutes. The named beneficiaries were the boy’s siblings, who did not meet the statutory threshold requirement to establish that they were dependent on him for support.

This ruling is trouble for health care providers for at least two reasons: first, the new implied cause of action against health care providers is not necessarily subject to the stringent requirements of Ch. 7.70 with respect to expert testimony, etc. Second, practitioners and health care facilities should review their liability coverage with their brokers, insurers or attorneys to determine whether there is coverage for this new risk.

The majority opinion was written by former Justice Richard Sanders, who was serving a pro tem justice after being defeated in the last election. Justice Gerry Alexander was the sole dissenter on the issue of liability under RCW 26.44.030.

Contacts

If you have any questions regarding this decision, please contact any of the following attorneys:
Mike Madden
Timothy Allen
Carol Sue Janes