Limitations on Physician Liability Outside Jurisdiction Strengthened by Washington Supreme Court Ruling

On July 6, 2017, the Washington Supreme Court unanimously affirmed the trial court dismissal of Washington State medical negligence claims against Idaho family physician Dr. Timothy Burns related to treatment of his Idaho patient in Donald R. Swank v. Valley Christian School, et al[1]. BB&L trial attorneys Edward J. Bruya and Eric R. Byrd obtained the trial court dismissal for Dr. Burns, and were joined on appeal by Gregory M. Miller of Carney Badley Spellman, P.S.


The claims against Dr. Burns were brought by the parents of his long-time Idaho patient Andrew Swank, who tragically died following head injuries in a high school football game played in Washington State in September 2009. The suit was filed in Washington and named the private high school, its coach, and Dr. Burns. The suit asked the Washington courts to assert jurisdiction over Dr. Burns for medical care he rendered entirely in Idaho to his long-time Idaho patient who sought him out for the care. It alleged all defendants failed to comply with a newly-passed Washington statute, the Lystedt Law, which was designed to address and help prevent concussion injuries in youth athletes. The law restricted the youth athlete’s return to play until an evaluation and written clearance are obtained from a licensed health care provider.

In its decision, the Supreme Court unanimously held the Lystedt statute does contain an implied cause of action against those who fail to comply with it, that coaches and sports programs have a continuing duty to monitor their athletes for concussions, and that a health care provider’s written clearance does not excuse the coach or program from monitoring the returned athlete and taking immediate steps based on their observations.

The unanimous decision affirmed dismissal of Dr. Burns because Washington law does not allow the assertion of state jurisdiction over out-of-state health care providers for care rendered in their home state and not in Washington. The Court denied the Swanks’ efforts to apply Washington’s long arm statute to Dr. Burns, affirming its decision in Lewis v. Bours[2]. It reiterated its holding in Lewis that “claims for medical malpractice originating from care provided in another state but the injury manifests itself in Washington do not constitute a tortious act giving rise to the exercise of personal jurisdiction in Washington.”[3] The Court held in Swank that, because Dr. Burns provided medical care only in Idaho, the tort occurred in Idaho, not Washington, and therefore Washington courts lacked personal jurisdiction over Dr. Burns. The Court also reiterated the general rule in Washington, and throughout the country, that the provision of medical care, as a personal service, is strongly tied to the location where those services are performed. Because the decision did not discuss application of the concussion statute to Dr. Burns, it implicitly rejected the plaintiffs’ arguments that the law contained a new, separate basis for a malpractice claim against him as a health care provider.

Implications and Conclusion

In sum, the Swank decision is a major win for the medical negligence defense bar, Dr. Burns, and physicians’ practices and patients. Allowing such a claim for medical care rendered in a neighboring state would have been a major change in law, a change that the plaintiffs, though unsuccessful, worked very hard to get, primarily under the authority of the new concussion statute. By refusing to extend Washington’s personal jurisdiction beyond the Idaho boundaries where Dr. Burns practices, the Washington Supreme Court strengthened the limitations concerning extending the liability of physicians into jurisdictions where their patients’ injuries may manifest. This is an important verdict for the defense bar, which frequently faces attempts by plaintiffs to venue shop in order to expand the liability of a physician to a state with a longer statute of limitations. It further strengthens the protections provided by Lewis v. Bours and preserves longstanding limitations on potential exposure for physicians who treat patients residing or participating in athletic events in states where the physician does not practice. It will likewise encourage the treatment of Washington residents or athletes who seek medical care outside the state, as those non-Washington practitioners need not fear they may be subject to some unknown Washington statute for work they are licensed to do in their home state.

If you have questions about this client alert or related topics, please feel free to contact either of the BB&L attorneys below:

Edward Bruya (
Eric Byrd (

[1] No. 93282-4.
[2] 119 Wn. 2d 667, 835 P.2d 221 (1992).
[3] Lewis, 119 Wn. 2d at 669.