On August 18, 2020, Division II of the Court of Appeals issued unpublished opinion Coolen v. Group Health Cooperative, 2020 WL 4784849, addressing the contours of the Corporate Negligence Doctrine in Washington and the independent duties owed to patients by hospitals.
Two holdings from the Coolen court regarding the Corporate Negligence Doctrine are of particular import. First, the court concluded that the trial court did not err in refusing to instruct the jury that the defendant hospital had a duty to adopt specific policies and procedures, reasoning in part that prior Supreme Court case law establishing that duty did not survive the Legislature’s enactment of RCW 7.70 in 1976 as the exclusive remedy for injuries arising out of healthcare.
Second, the Coolen court clarified that a hospital’s independent duty to monitor and review providers practicing within its walls is not limited to instances where the hospital was made aware of a provider’s “obvious negligence.”
- Factual and procedural background.
The claim arose out of the care provided to the patient Patrick Coolen, who received treatment from various Group Health Cooperative/Kaiser Permanente providers from January 2003 and 2014. Beginning in September 2010, Mr. Coolen complained of urinary issues and discomfort. A prostate exam showed that his prostate was enlarged and nontender. A working diagnosis of benign prostate hypertrophy (BPH) was made; the providers did not believe the patient had prostate cancer.
In 2013 and early 2014, Mr. Coolen developed additional symptoms, including testicular and scrotal pain, and urinary problems, including scant traces of blood in his urine. He never complained of low back pain. His prostate was examined and he was again diagnosed with BPH. The blood in the urine was attributed to the patient being on blood thinners. In June 2014, the patient’s condition declined substantially, and he presented to Kaiser Permanente with low back pain, a fever, and weight loss. A PSA test[1] and prostate biopsy were ordered, the latter of which showed high-grade, high-volume malignancy. Mr. Coolen received chemotherapy and experimental cancer treatments, but ultimately he passed away in June 2016, at 66 years old.
Mr. Coolen’s wife sued Group Health/Kaiser, alleging multiple claims, including a claim of corporate negligence under the theory that Group Health breached its duty to monitor and review its providers and to adopt policies and procedures for prostate cancer screening. 2020 WL 4784849 *3. During trial, the court denied Group Health/Kaiser’s motion to dismiss the corporate negligence claim, but then later ruled that it would not instruct the jury on the claim under either plaintiff theory. Id. at **3-4. The jury found for Group Health/Kaiser on the remaining claims. Mr. Coolen’s wife appealed the trial court’s refusal to instruct the jury on corporate negligence.
- The Corporate Negligence Doctrine does not impose a duty to establish policies and procedures with respect to a particular area of care.
The Coolen appeals court first recognized that the Corporate Negligence Doctrine “imposes on [a] hospital a nondelegable duty owed directly to the patient, regardless of the details of the doctor-hospital relationship.” 2020 WL 4784849 *4 (quoting Pedroza v. Bryant, 101 Wn.2d 226, 233, 677 P.2d 166 (1984)). These duties were later articulated by the Supreme Court in Douglas v. Freeman, 117 Wn.2d 242, 248, 814 P.2d 1160 (1991), which did not include a duty to adopt particular policies and procedures governing patient care. See id.
The plaintiff acknowledged that the duty to adopt policies was not included in Douglas, but instead relied on Osborn v. Pub. Hosp. Distr. No. 1, 80 Wn.2d 201, 492 P.2d 1025 (1972), which held that a hospital owes patients a duty of care under RCW 70.41, and that a WAC provision adopted under that statute[2] required hospitals to “establish safety policies and procedures” for the care of patients. Id. at *5.
The Coolen court rejected plaintiff’s position, and affirmed the trial court’s refusal to give a corporate negligence instruction. It determined that to the extent Osborn held that RCW 70.41 establishes a health care institution’s standard of care, its holding did not survive the Court’s subsequent opinion in Douglas, supra, the Legislature’s passage of RCW 7.70 as the exclusive remedy for claims arising from the provision of healthcare, and the post-Osborn amendment to RCW 70.41, which prevented the Department of Social and Health Services from establishing standards for physicians. Id. at *6.
The court further held that even if a jury could have found that Group Health/Kaiser had a legal duty to adopt some policies to ensure patient safety, the plaintiff “presented no evidence that any statute or regulation imposed an obligation on Group Health to adopt specific policies and procedures relating to particular methods for diagnosing, screening, or treating prostate cancer or any other illness [.]” Id. (emphasis in original).
Importantly, Division II recognized that the hospital duty to adopt policies and procedures is included in the Washington Pattern Jury Instruction for the Corporate Negligence Doctrine, WPI 105.02.02 (7th ed. 2019). Id. at *7. However, the appeals court held that, “this instruction was not supported in this case by the Supreme Court’s articulation of the corporate duty doctrine in Douglas, and it is also no longer supported by the statute.” Id. (emphasis added).
- A hospital’s duty to supervise and monitor its providers is not confined to where the provider is “obviously negligent.”
The Coolen court agreed with the plaintiff that the trial court erred in concluding that a hospital or healthcare institution only owes a duty to monitor and review its provider’s care in the presence of “obvious negligence.” 2020 WL 4784849 *7. The court reasoned that the duty to intervene is the only corporate negligence duty that requires that the negligence of the providers be “obvious.” Id. In other words, the duty to monitor and supervise is a separate duty, and has no such threshold precondition before that duty arises.
However, the court concluded that no reversible error occurred because “a reasonable jury could not have found that any failure by Group Health to monitor and review its providers proximately caused [Mr. Coolen’s] harm.” Id. There was no evidence that additional monitoring by Group Health/Kaiser would have saved the patient’s life, or that the cancer would have been curable with an earlier diagnosis. Id. There was also no evidence that monitoring over the provider’s care of the patient would have led to additional testing, or that Group Health would have—or should have—concluded that its providers’ care fell short of what was expected with regard to offering prostate cancer screening and to discuss PSA testing. Id. at *8.
- Impact and import of Coolen’s holdings.
Division II’s opinion in Coolen clarifies a long-standing dispute between the plaintiff and defense bars regarding the scope of the Corporate Negligence Doctrine as to the duty to adopt policies and procedures. In practice, the duty to adopt policies is one of the more common duties relied upon by plaintiffs in their malpractice lawsuits. The defense bar has been consistent in asking trial courts to recognize the legal impropriety of relying on and applying the pre-RCW 7.70 duty referenced by Osborn, supra, and the WPI on the Doctrine. The Coolen opinion is the most definitive—to date—rejection of that duty as a matter of law.
The Coolen court’s discussion of the corporate negligence duty to “review and monitor” providers is of equal import but for more discrete reasons, beyond its clarification that the duty to review and monitor does not require “obvious negligence.” The court drew a clear distinction between the plaintiff’s claims of negligence against the entity based on the alleged negligence of its providers, and the hospital’s separate and independent duty to “review and monitor” the actions of its providers.
What is not as clear, however, is how the hospital is to “review and monitor” its providers’ care, and at what point the hospital has a duty to intervene if a provider is “falling short” of his or her clinical obligations. The ambiguity on this issue is compounded by the practical and legal implications of the corporate practice of medicine doctrine, which prohibits healthcare entities from practicing medicine or intervening or obstructing a provider’s clinical decision-making. Unfortunately, the plaintiff’s failure to present sufficient causation evidence in the case at hand obviated the need for the Coolen court to answer these questions.
It is unknown whether the plaintiff in Coolen will seek discretionary review with the State Supreme Court pursuant to RAP 13.3 and 13.4 as the deadline for such relief has not passed. Although a currently unpublished opinion, under RAP 14.1(1), unpublished opinions filed after March 1, 2013 may be cited as nonbinding authorities and “may be accorded such persuasive value as the court deems appropriate.”
[1] Prostate-specific antigen, or PSA, is a protein produced by normal, as well as malignant, cells of the prostate gland. The PSA test measures the level of PSA in a man’s blood. The blood level of PSA is often elevated in men with prostate cancer.
[2] WAC 246-320-226(3)(g).