author: Maxa, C.J.

text:
    Denise REAGAN, Appellant, v. St. Elmo NEWTON, III, M.D., Respondent.
    No. 50662-9-II
    Court of Appeals of Washington, Division 2.
    Filed March 5, 2019
    Bruce Colven, Caron Colven Robison & Shafton, 900 Washington St. Ste. 1000, Vancouver, WA, 98660-3455, for Appellant.
    Lauren Michelle Martin, Bennett Bigelow & Leedom, P.S., 601 Union St. Ste. 1500, Seattle, WA, 98101-1363, Amber L. Pearce, Floyd, Pflueger & Ringer, P.S., 200 W Thomas St. Ste. 500, Seattle, WA, 98119-4296, for Respondent.
    PUBLISHED OPINION
   Maxa, C.J.

¶1 Denise Reagan appeals the trial court's dismissal on summary judgment of a medical malpractice lawsuit she filed against Dr. St. Elmo Newton. Reagan alleges that Dr. Newton injured her while conducting an independent medical examination (IME) on her. The trial court granted summary judgment in favor of Dr. Newton because Reagan did not present expert testimony that Dr. Newton violated the standard of care as required to maintain a medical malpractice action under chapter 7.70 RCW. The court also disregarded without comment Reagan's medical battery claim that she had not pleaded but had raised in opposition to summary judgment.

¶2 RCW 7.70.010 states that the substantive and procedural requirements of chapter 7.70 RCW, the medical malpractice statute, apply to actions regarding injuries "occurring as a result of health care." RCW 7.70.030, which establishes the grounds for a medical malpractice claim, also applies to injuries "occurring as the result of health care." The primary question here is whether a physical examination during an IME that causes injury to the person being examined constitutes "health care" governed by chapter 7.70 RCW. In addition, a question exists whether a person injured during an IME also can maintain a common law medical battery claim against the IME physician.

¶3 We hold that (1) a physical examination during an IME that causes injury to the person being examined constitutes "health care" under RCW 7.70.010 and therefore Reagan was required to present expert testimony regarding breach of the standard of care, (2) the trial court properly dismissed Reagan's medical malpractice claim against Dr. Newton because she did not present expert testimony addressing the applicable standard of care or whether Dr. Newton had breached that standard of care, and (3) Reagan can maintain a claim for medical battery under CR 15(b) even though she did not plead that claim and Reagan presented evidence in opposition to summary judgment that created a genuine issue of material fact regarding Dr. Newton's liability for medical battery.

¶4 Accordingly, we affirm the trial court's dismissal of Reagan's medical malpractice claim, but we reverse the trial court's dismissal of Reagan's medical battery claim and remand for further proceedings.

FACTS

¶5 In June 2013, Reagan injured her back while in the course of her employment. She filed a workers' compensation claim with the Department of Labor and Industries (DLI). DLI accepted Reagan's claim for injuries to her thoracic and cervical regions.

¶6 DLI subsequently requested that Reagan undergo an IME. The IME's purpose was to determine Reagan's current work restrictions, if she could return to work, if her treatment had concluded, and whether she had a permanent impairment as a result of the injury. DLI also requested that the IME provider make treatment recommendations, including stating whether treatment was curative or rehabilitative, the goals of treatment, and the estimated length and prognosis of treatment.

¶7 In May 2014, Dr. Newton, an orthopedic physician, and Dr. Dennis Chong, a physiatrist, performed Reagan's IME. Reagan's sister-in-law, Lisa Wilson, accompanied her to the examination and remained in the room throughout the exam.

¶8 Reagan told Dr. Newton that she had a previous injury to her left hip. During his physical examination, Dr. Newton had Reagan lie on her back. He then bent her left knee toward her chest and rotated her bent knee from the hip joint. Reagan told Dr. Newton that her hip would not rotate any further because of her previous injury, but Dr. Newton pushed her leg all the way down. Reagan screamed in pain, and Dr. Newton stated, "That was the reaction I was looking for." Clerk's Papers (CP) at 110. Wilson also recalls Reagan telling Dr. Newton "that's as far as it goes" before he "yanked" on her leg, Regan crying out in pain, and Dr. Newton commenting about Reagan's reaction. CP at 113-114. As a result of this maneuver, Reagan experienced excruciating pain in her hip. Wilson, who drove Reagan home, stated that Reagan continued to experience pain and discomfort after the IME concluded.

¶9 Reagan subsequently filed a lawsuit against Dr. Newton in which she alleged that his negligence in manipulating her hip during the IME caused her injury. The complaint requested a judgment against Dr. Newton for damages suffered as a result of his negligence. The complaint did not assert a claim for medical battery.

¶10 Dr. Newton moved for summary judgment on liability. Specifically, he claimed that Reagan had failed to present expert testimony required to support a claim under RCW 7.70.030(1) that he had breached the appropriate standard of care during his examination of Reagan.

¶11 Reagan opposed the summary judgment motion, claiming that chapter 7.70 RCW did not apply to her claim because Dr. Newton was not providing "health care" during the IME. She also asserted in her brief that she could recover under a theory of medical battery.

¶12 Reagan submitted declarations from Dr. Bruce Blackstone, who saw her for a subsequent IME in January 2015, and from Dr. Mark Colville, who performed her original hip surgery. Dr. Blackstone characterized Reagan's "acute onset of left hip pain that occurred during the IME of May 13, 2014" as "an aggravation of pre-existing arthritis, which is actually attributable to her work-related injury suffered back in 2008." CP at 127-28. Dr. Colville also attributed the left hip pain to "the manipulation performed during her independent medical exam [of May 2014]," finding that it had "aggravated a preexisting osteoarthritic condition of the left hip." CP at 142. But neither physician offered any opinion regarding the appropriate standard of care or whether Dr. Newton followed that standard of care during the IME.

¶13 Dr. Newton's reply brief did not mention medical battery. But the parties addressed the claim on the merits during oral argument, and Dr. Newton did not argue that the trial court should not consider the medical battery claim because it had not been pleaded. The court did not address medical battery during argument or in its summary judgment order.

¶14 The trial court granted summary judgment in favor of Dr. Newton and dismissed Reagan's claims. Reagan appeals the trial court's summary judgment order.

ANALYSIS

A. SUMMARY JUDGMENT STANDARD

¶15 Our review of a dismissal on summary judgment is de novo. Frausto v. Yakima HMA, LLC , 188 Wash.2d 227, 231, 393 P.3d 776 (2017). We review all evidence and reasonable inferences in the light most favorable to the nonmoving party. Keck v. Collins , 184 Wash.2d 358, 368, 357 P.3d 1080 (2015). We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 370, 357 P.3d 1080 ; CR 56(c). A genuine issue of material fact exists if reasonable minds could disagree on the facts controlling the outcome of the case. Sutton v. Tacoma Sch. Dist. No. 10 , 180 Wash. App. 859, 864-65, 324 P.3d 763 (2014).

¶16 The party moving for summary judgment has the initial burden to show there is no genuine issue of material fact. Zonnebloem, LLC v. Blue Bay Holdings, LLC , 200 Wash. App. 178, 183, 401 P.3d 468 (2017). A moving defendant can meet this burden by showing that there is an absence of evidence to support the plaintiff's claim. Id. Once the defendant has made such a showing, the burden shifts to the plaintiff to present specific facts that show a genuine issue of material fact. Id. Summary judgment is appropriate if a plaintiff fails to show sufficient evidence to establish the existence of an essential element on which he or she will have the burden of proof at trial. Lake Chelan Shores Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co. , 176 Wash. App. 168, 179, 313 P.3d 408 (2013).

B. APPLICABILITY OF MEDICAL MALPRACTICE STATUTE

¶17 Reagan argues that the medical malpractice statute, chapter 7.70 RCW, does not apply here because an IME does not involve "health care." We disagree.

1. Legal Background

¶18 Chapter 7.70 RCW modified "certain substantive and procedural aspects of all civil actions and causes of action, whether based on tort, contract, or otherwise, for damages for injury occurring as a result of health care ." RCW 7.70.010 (emphasis added). Chapter 7.70 RCW exclusively governs any action for damages based on an injury resulting from health care. Fast v. Kennewick Pub. Hosp. Dist. , 187 Wash.2d 27, 34, 384 P.3d 232 (2016).

¶19 Chapter 7.70 RCW does not define the phrase "health care." Beggs v. Dept. of Soc. & Health Servs. , 171 Wash.2d 69, 79, 247 P.3d 421 (2011). RCW 7.70.020 defines "health care provider" to include not only physicians but also a wide variety of persons "licensed by this state to provide health care or related services." RCW 7.70.020(1).

¶20 To recover damages for "injury occurring as the result of health care ," a plaintiff must establish at least one of three propositions:

(1) That injury resulted from the failure of a health care provider to follow the accepted standard of care;
(2) That a health care provider promised the patient or his or her representative that the injury suffered would not occur;
(3) That injury resulted from health care to which the patient or his or her representative did not consent.

RCW 7.70.030 (emphasis added).

¶21 For a damages claim based on a health care provider's failure to follow the accepted standard of care under RCW 7.70.030(1), a plaintiff must prove both that the health care provider "failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider" and that such failure was a proximate cause of the plaintiff's injuries. RCW 7.70.040(1).

¶22 In a medical malpractice action, the applicable standard of care generally must be established by expert testimony. Reyes v. Yakima Health Dist. , 191 Wash.2d 79, 86, 419 P.3d 819 (2018). The expert testimony must establish what a reasonable medical provider would or would not have done under the circumstances, that the defendant failed to act in that manner, and that this failure caused the plaintiff's injuries. Keck , 184 Wash.2d at 371, 357 P.3d 1080. If the plaintiff lacks expert testimony regarding one of the required elements, the defendant is entitled to summary judgment on liability. Reyes , 191 Wash.2d at 86, 419 P.3d 819.

2. IME as "Health Care"

¶23 The provisions of the medical malpractice statute apply only to injuries occurring as the result of "health care." RCW 7.70.010 ; RCW 7.70.030. The question here is whether a physician's physical examination during an IME that causes injury to the person being examined constitutes "health care."

a. Definition of "Health Care"

¶24 As noted above, chapter 7.70 RCW does not define the term "health care." Beggs , 171 Wash.2d at 79, 247 P.3d 421. Normally, we would engage in a statutory interpretation analysis to determine and give effect to the legislature's intent. See Gray v. Suttell & Assocs. , 181 Wash.2d 329, 339, 334 P.3d 14 (2014). However, the Supreme Court and several Court of Appeals decisions have adopted the following definition of "health care" for purposes of the medical malpractice statute: " '[T]he process in which [the physician] was utilizing the skills which he had been taught in examining, diagnosing, treating or caring for the plaintiff as his patient.' " Beggs , 171 Wash.2d at 79, 247 P.3d 421 (second alteration in original) (quoting Estate of Sly v. Linville , 75 Wash. App. 431, 439, 878 P.2d 1241 (1994) ); see also Berger v. Sonneland , 144 Wash.2d 91, 109, 26 P.3d 257 (2001) ; Branom v. State , 94 Wash. App. 964, 969-70, 974 P.2d 335 (1999).

¶25 This definition is consistent with one dictionary's definition of "health care" as " '[t]he prevention, treatment, management of illness and the preservation of mental and physical well-being through the services offered by the medical and allied health professions.' " Berger , 144 Wash.2d at 109, 26 P.3d 257 (alteration in original) (quoting THE AMERICAN HERITAGE DICTIONARY 833 (3d ed. 1992) ); see also Beggs , 171 Wash.2d at 79, 247 P.3d 421 (stating that the definition of "health care" the court adopted is consistent with "a common dictionary definition").

¶26 Courts have interpreted "injuries resulting from health care" under RCW 7.70.010 to encompass scenarios not involving traditional patient care. Berger , 144 Wash.2d at 110, 26 P.3d 257 (a physician's unauthorized disclosure of confidential patient information to the patient's ex-husband); Branom , 94 Wash. App. at 970-71, 974 P.2d 335 (financial and emotional distress injuries to parents arising from a physician's alleged failure to inform them of their infant's medical condition even though the physician did not treat the parents).

¶27 On the other hand, courts have declined to hold that other types of claims against physicians involved "injuries resulting from health care." Young v. Savidge , 155 Wash. App. 806, 821-23, 230 P.3d 222 (2010) (dentist's intentional misrepresentation regarding the composition of a crown he installed); Estate of Sly , 75 Wash. App. at 440, 878 P.2d 1241 (physician's misrepresentation to a patient regarding his opinion of the quality of the care the patient had previously received from the physician's colleague).

b. Examining and Diagnosing

¶28 The first part of the definition of "health care" requires that the physician utilize his or her learned skills regarding examination, diagnosis, treatment, or care. Beggs , 171 Wash.2d at 79, 247 P.3d 421. Here, Dr. Newton was utilizing his medical skills to examine Reagan. His alleged negligence occurred during his physical examination of Reagan's hip. A physician's physical examination, even during an IME, falls squarely within the first part of the "health care" definition.

¶29 Reagan argues that an IME does not meet the definition of "health care" because an IME physician does not provide treatment or any services to the person undergoing the IME. Instead, the physician performs the IME on behalf of and for the benefit of DLI. Reagan points out that the interests of the worker and the IME examiner often are adversarial because the physician's duty is to DLI, not to the worker. However, providing treatment and patient care are only two of the disjunctive aspects of "health care." Dr. Newton was engaged in another aspect - examination.

¶30 Reagan also argues that the medical malpractice statute is in derogation of the common law and must be construed narrowly, citing Sherman v. Kissinger , 146 Wash. App. 855, 865-66, 195 P.3d 539 (2008). But as noted above, we do not need to engage in statutory construction because the Supreme Court has adopted a definition of "health care." Beggs , 171 Wash.2d at 79, 247 P.3d 421.

¶31 We conclude that Dr. Newton's physical examination of Reagan during the IME satisfied the first part of the definition of "health care" under the medical malpractice statute.

c. Physician-Patient Relationship

¶32 The second part of the definition of "health care" requires that the physician's skillful services be provided to the plaintiff "as [the physician's] patient." Beggs , 171 Wash.2d at 79, 247 P.3d 421. Based on this language, Reagan argues that physician's conduct constitutes "health care" only if the person injured was the physician's patient. Because the parties acknowledge that Dr. Newton and Reagan had no traditional physician-patient relationship, Reagan claims that the medical malpractice statute is inapplicable to injuries occurring during the IME.

¶33 Reagan's interpretation of the phrase "as the [physician's] patient" in the definition of "health care" as requiring a "full" physician-patient relationship is inconsistent with case law applying RCW 7.70.030(1) to situations not involving such a relationship.

¶34 In Eelbode v. Chec Medical Centers, Inc. , the plaintiff filed a medical malpractice action against a physical therapist who allegedly injured him while conducting a pre-employment physical. 97 Wash. App. 462, 464-65, 984 P.2d 436 (1999). The defendant argued that a physician-patient relationship was required to subject a health-care practitioner to liability under the medical malpractice statute. Id. at 467, 984 P.2d 436. This court disagreed, holding that a claim of failure to follow the accepted standard of care under RCW 7.70.030(1) does not require a physician-patient relationship. Id. The court noted that the weight of authority in other jurisdictions supported this conclusion. Id. at 468-69, 984 P.2d 436.

¶35 The court in Eelbode relied on a case from the Ninth Circuit Court of Appeals that applied Washington law, Daly v. United States , 946 F.2d 1467 (9th Cir. 1991). Like Eelbode , Daly involved a pre-employment physical examination. 946 F.2d at 1468. The issue was whether the examining physician had a duty to inform the plaintiff of abnormalities discovered during the examination in the absence of a physician-client relationship. Id. The court held that although the injured person must be a patient to assert a claim under RCW 7.70.030(2) and (3), there was no such requirement for a general negligence claim under RCW 7.70.030(1). Id. at 1469-70. The court refused to assume that Washington courts would create an exception to RCW 7.70.030(1) liability for pre-employment physicals. Id. at 1470.

¶36 In Judy v. Hanford Environmental Health Foundation , Division Three of this court agreed with Eelbode and Daly and stated that the medical malpractice statute "extends malpractice liability beyond traditional physician-patient relationships." 106 Wash. App. 26, 37, 22 P.3d 810 (2001).

¶37 However, Judy demonstrates that there must be some type of direct connection between a physician and an injured person for RCW 7.70.030(1) liability to attach. In that case, an employer retained a physician to determine an employee's physical capacity to work in her position based on a functional capacity evaluation performed by another person. Judy , 106 Wash. App. at 30, 22 P.3d 810. The employee filed a medical malpractice claim against the physician because he failed to advise her that he believed she lacked the physical capacity to work in her position. Id. at 31, 22 P.3d 810.

¶38 After noting the rule that no physician-patient relationship was required for RCW 7.70.030(1) liability, the court declined to impose medical malpractice liability on the physician because he did not conduct an examination or have any contact with the plaintiff. Id. at 37-39, 22 P.3d 810. The court stated:

There can be no malpractice when there is not only no doctor-patient relationship, but no contact, no intent to diagnose, treat or otherwise benefit the patient, no injury directly caused by the examination , no failure to diagnose or notify the patient of an illness disclosed by the examination, and no dispute as to the accuracy of the reported results.

Id. at 39, 22 P.3d 810 (emphasis added).

¶39 Here, the IME was similar to the pre-employment physicals in Eelbode and Daly . As in those cases, the absence of a traditional physician-patient relationship between Dr. Newton and Reagan does not preclude the application of RCW 7.70.030(1). And unlike in Judy , Dr. Newton did have a connection with Reagan - he allegedly injured her during his examination.

¶40 Some courts in other jurisdictions have held that despite the absence of a traditional physician-patient relationship, an IME physician conducting an IME owes a duty not to injure the person being examined in the actual conduct of the physical examination and is subject to medical malpractice liability for such an injury. E.g. , Dyer v. Trachtman , 470 Mich. 45, 679 N.W.2d 311, 314-17 (2004) ; Bazakos v. Lewis , 12 N.Y.3d 631, 883 N.Y.S.2d 785, 911 N.E.2d 847, 849-50 (2009) ; Harris v. Kreutzer , 271 Va. 188, 624 S.E.2d 24, 31-32 (2006).

¶41 The Michigan Supreme Court stated in Dyer that the relationship between the IME physician and the person being examined "is not the traditional one." 679 N.W.2d at 314. The court elaborated:

It is a limited relationship. It does not involve the full panoply of the physician's typical responsibilities to diagnose and treat the examinee for medical conditions. ... The limited relationship that we recognize imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee.

Id. at 314-15. We agree with this characterization and hold that a person being examined in an IME is the IME physician's "patient" with regard to injuries sustained in the physician examination.

¶42 Reagan makes several arguments against the rule stated in Eelbode that a physician-patient relationship is not required to assert a claim under RCW 7.70.030(1). First, she argues that the definition of "health care" clearly states that the plaintiff must be the physician's patient, and the meaning of "patient" as one in a physician-patient relationship is unambiguous. However, "patient" can have a generic meaning as someone who has an interaction with a health care provider without forming a traditional physician-patient relationship. See RCW 70.02.010(32) (defining "patient" for purposes of another statute as a person who receives health care).

¶43 This generic meaning appears to be the way the term is used in the medical malpractice statute. As the court in Eelbode pointed out, the definition of "health care provider" in RCW 7.70.020(1) includes service providers that do not have formal relationships with the patient, including opticians, pharmacists, and paramedics.

97 Wash. App. at 467, 984 P.2d 436. Those providers would not be subject to liability under the medical malpractice statute under Reagan's position, making their inclusion in the definition of "health care provider" superfluous.

¶44 Second, Reagan argues that Eelbode is not controlling because the court did not expressly address the definition of "health care." However, the court unequivocally held that no physician-patient relationship was required for liability under RCW 7.70.030(1). Id. Because RCW 7.70.030 applies only to injuries caused by health care, the court necessarily held that "health care" does not require a physician-patient relationship.

¶45 Third, Reagan relies on Paetsch v. Spokane Dermatology Clinic. PS , 182 Wash.2d 842, 348 P.3d 389 (2015), and Volk v. DeMeerleer , 187 Wash.2d 241, 386 P.3d 254 (2016). In Paetsch , the Supreme Court noted that at common law, a plaintiff could not assert a medical malpractice claim absent a physician-patient relationship. 182 Wash.2d at 850, 348 P.3d 389. The court stated that some courts had "opined that the physician-patient relationship is no longer an element required to establish medical malpractice," citing Eelbode and Judy . Id. at 850 n.6, 348 P.3d 389. But the court stated that it did not need to decide the issue under the facts of that case. Id. at 850, 348 P.3d 389.

¶46 In Volk , the court again noted the common law rule and stated that a medical malpractice duty is owed to the physician's patient. 187 Wash.2d at 254, 386 P.3d 254. The court stated that in Paetsch , the court "previously declined to adopt the view that medical malpractice suits are available to nonpatient third parties against physicians." Id.

¶47 However, Paetsch and Volk involved a different issue than the one presented here. In Paetsch , the defendant was a doctor who had no contact with the plaintiff when she received treatment at a clinic that he owned. 182 Wash.2d at 845-47, 348 P.3d 389. In Volk , the plaintiffs were persons who filed a lawsuit against a psychiatrist to whom they had no connection for injuries and death caused by the psychiatrist's patient. 187 Wash.2d at 246, 250, 386 P.3d 254. The court in Judy held that a physician who had no contact with or connection to the plaintiff could not be liable under the medical malpractice statute. 106 Wash. App. at 39, 22 P.3d 810. But in Eelbode , Daly , and this case, the plaintiffs actually were examined by the defendant even though no physician-patient relationship was formed.

¶48 Fourth, Reagan argues that an IME should not be considered "health care" because (1) there is no physician-patient confidentiality between the IME physician and an injured worker, (2) the physician sends his or her report to DLI and not to the worker's other health care providers, and (3) the physician may later testify against the interests of the worker. However, these factors demonstrate only that there is no physician-patient relationship between an IME physician and the person being examined. They do not answer whether a physician-patient relationship is necessary to assert a claim under RCW 7.70.030(1).

¶49 Reagan's arguments are not persuasive. In addition, her position would be detrimental to persons undergoing IMEs. As noted above, under the common law a person has no medical malpractice claim absent a physician-patient relationship. Volk , 187 Wash.2d at 254, 386 P.3d 254. Therefore, if the medical malpractice statute was inapplicable to IMEs, a person negligently injured by an IME physician's malpractice would have no remedy.

3. Summary

¶50 Dr. Newton utilized his medical skills to examine Reagan. Although Dr. Newton did not have a traditional physician-patient relationship with Reagan, Reagan was Dr. Newton's "patient" in the generic sense that he interacted with and examined her. And he had a limited relationship with her in that he had a duty not to injure her during his examination. Accordingly, we hold that Dr. Newton's IME involved "health care" and therefore that RCW 7.70.030(1) governed his liability.

C. SUFFICIENCY OF EXPERT TESTIMONY

¶51 Because the medical malpractice statute applies here, Reagan had the burden in opposition to summary judgment to present evidence establishing a genuine issue of fact that Dr. Newton failed to follow the accepted standard of care under RCW 7.70.030(1). In addition, Reagan was required to present evidence regarding the accepted standard of care. See RCW 7.70.040(1) ; Reyes , 191 Wash.2d at 86, 419 P.3d 819. Reagan argues that the expert medical testimony from Dr. Blackstone and Dr. Colville was sufficient to avoid summary judgment. We disagree.

¶52 As noted above, breach of the applicable standard of care generally must be established through expert testimony. Reyes , 191 Wash.2d at 86, 419 P.3d 819. Both Dr. Blackstone and Dr. Colville opined that the acute onset of Reagan's left hip pain occurred as a result of Dr. Newton's manipulation of the hip during her May 2014 IME. But these opinions focused only on causation. Neither physician offered any opinion regarding the appropriate standard of care or whether Dr. Newton followed that standard of care during the IME. Therefore, Reagan's evidence was insufficient to sustain a claim under RCW 7.70.030(1) and RCW 7.70.040(1).

¶53 Accordingly, we hold that the trial court did not err in granting summary judgment to Dr. Newton under RCW 7.70.030(1) because Reagan did not provide the required expert testimony that Dr. Newton violated the accepted standard of care.

D. MEDICAL BATTERY CLAIM

¶54 Reagan argues that the trial court erred in dismissing her claim for medical battery because she presented sufficient evidence to support that claim. Dr. Newton argues that summary judgment was appropriate because Reagan did not plead battery or any intentional conduct in her complaint and because the statute of limitations bars the claim. We reject Dr. Newton's procedural arguments, and hold that Reagan presented evidence in opposition to summary judgment that created a genuine issue of material fact regarding Dr. Newton's liability for medical battery.

1. Legal Principles

¶55 Under existing case law, the medical malpractice statute does not supersede the common law cause of action for medical battery. Bundrick v. Stewart , 128 Wash. App. 11, 16-17, 114 P.3d 1204 (2005) ; see also Young , 155 Wash. App. at 821-23, 230 P.3d 222. A battery is an intentional harmful or offensive bodily contact with another person. Kumar v. Gate Gourmet, Inc. , 180 Wash.2d 481, 504, 325 P.3d 193 (2014). A person is liable for battery if he or she intends to cause a harmful or offensive contact and such a contact directly or indirectly results. Id. The intent element is satisfied if a defendant knows to a substantial certainty that his or her actions will result in the contact. In other words, the requisite intent for battery is to cause an offensive contact, not an injury. Sutton , 180 Wash. App. at 866, 324 P.3d 763.

¶56 A person commits battery only if the person receiving the contact has not consented. See Kumar , 180 Wash.2d at 505, 325 P.3d 193. Therefore, consent is a defense. Morinaga v. Vue , 85 Wash. App. 822, 834, 935 P.2d 637 (1997). However, where the plaintiff consents to a medical procedure, limitations on that consent will be effective if the plaintiff communicates those limitations. Bundrick , 128 Wash. App. at 18, 114 P.3d 1204.

2. Failure to Assert Claim in Complaint

¶57 Dr. Newton initially argues that Reagan's complaint failed to assert a medical battery claim. We agree.

¶58 Under CR 8(a), a complaint must contain "(1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader deems the pleader is entitled." This rule allows "notice pleading." See Champagne v. Thurston County , 163 Wash.2d 69, 84-87, 178 P.3d 936 (2008). However, the complaint still must adequately inform the defendant of the nature of the plaintiff's claims as well as the legal grounds upon which those claims rest. Kirby v. City of Tacoma , 124 Wash. App. 454, 469-70, 98 P.3d 827 (2004).

¶59 Here, Reagan's complaint alleged that "[d]uring the course of the examination, [Dr. Newton] manipulated plaintiff's hip in a manner that subsequently caused injury." CP at 2. The complaint requested a "judgment against [Dr. Newton] for all general and special damages suffered as a result of [his] negligence ." CP at 2 (emphasis added). The complaint did not assert a claim for battery or any other intentional tort.

¶60 Reagan claims that the allegations in her complaint were sufficient to assert medical battery because the allegations were consistent with that claim. However, notice pleading under CR 8 does not allow a plaintiff to allege only the factual basis in its pleading, leaving the plaintiff unrestricted as to any particular legal theory. See Pac. Nw. Shooting Park Ass'n v. City of Sequim , 158 Wash.2d 342, 352, 144 P.3d 276 (2006) ; Trask v. Butler , 123 Wash.2d 835, 846, 872 P.2d 1080 (1994). A complaint is insufficient if it fails to give the defendant fair notice of the claims asserted. Pac. Nw. , 158 Wash.2d at 352, 144 P.3d 276.

¶61 Reagan asserted only a negligence claim in her complaint. We hold that the complaint language was insufficient to assert a medical battery claim.

3. Application of CR 15(b)

¶62 Reagan argues that even if she did not plead a medical battery claim, the battery claim was argued by consent of the parties and therefore should be treated under CR 15(b) as if the claim was raised in her complaint. We agree.

¶63 CR 15(b) states, "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." In determining whether the parties impliedly tried an issue, we consider the record as a whole, including whether the issue was mentioned before trial, and the legal and factual support for the trial court's conclusions regarding the issue. Dewey v. Tacoma Sch. Dist. No. 10 , 95 Wash. App. 18, 26, 974 P.2d 847 (1999). However, "[a] party who does not plead a cause of action or theory of recovery cannot finesse the issue by later inserting the theory into trial briefs and contending it was in the case all along." Id.

a. Case Law

¶64 Several cases have addressed situations where a plaintiff raised an unpleaded claim for the first time in opposition to summary judgment. In Reichelt v. Johns-Manville Corp. , the plaintiff raised a new negligence claim. 107 Wash.2d 761, 767, 733 P.2d 530 (1987). However, the parties addressed negligence in their briefs and argued the merits of the issue at the summary judgment hearing, and the trial court ruled on the issue. Id. at 767, 733 P.2d 530. The Supreme Court held that under CR 15(b), the inadequacies of the plaintiff's complaint did not preclude an appellate court from considering the issue. Id. at 768, 733 P.2d 530.

¶65 In Denny's Restaurants Inc. v. Security Union Title Insurance , the plaintiff raised a new mutual mistake claim. 71 Wash. App. 194, 213-14, 859 P.2d 619 (1993). The defendant responded to the claim on the merits in its reply. Id. at 213, 859 P.2d 619. The trial court also heard oral argument on the issue, although the defendant did point out at that time that the new issue had not been raised in the complaint. Id. at 214, 859 P.2d 619. On these facts, Division One of this court held that, "[i]t appears from the record that this issue was essentially litigated before the trial court," and therefore the trial court had abused its discretion by not allowing for an amendment of the complaint under CR 15(b). Id. ¶66 In Dewey , the plaintiff argued for the first time in response to the defense's motion to dismiss that termination of his employment violated the First Amendment. 95 Wash. App. at 26, 974 P.2d 847. The defendant's reply brief did not mention the First Amendment claim, although during oral argument the defendant argued that the plaintiff had failed to plead that theory of recovery. Id. The court held that the trial court did not err in ruling that the First Amendment claim was not tried by implication. Id. The court stated that the defendant's argument that the plaintiff had failed to plead a First Amendment theory of recovery did not constitute a trial of the issue. Id.

¶67 In Kirby , the plaintiff raised a new First Amendment claim in opposition to summary judgment. 124 Wash. App. at 469, 98 P.3d 827. The defendant argued at the summary judgment hearing that the plaintiff had failed to plead a First Amendment theory of recovery. Id. at 471, 98 P.3d 827. Only after this argument did the defendant "hesitantly" argue the claim's merits. Id. This court refused to apply CR 15(b). See id. at 470-72, 98 P.3d 827. Citing Dewey , the court stated that a defendant's argument that the plaintiff failed to plead a claim did not constitute a trial of the issue under CR 15(b). Kirby , 124 Wash. App. at 471, 98 P.3d 827. Further, the defendant "should not be penalized for attempting a defense for which it was ill prepared as a result of [the plaintiff's] procedural failures." Id. Finally, the court quoted with approval a Seventh Circuit case: " 'A plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.' " Id. at 472, 98 P.3d 827 (quoting Shanahan v. City of Chicago , 82 F.3d 776, 781 (7th Cir. 1996) ).

b. Analysis

¶68 Here, Reagan raised medical battery for the first time in her response to Dr. Newton's summary judgment motion. She noted that battery involves a nonconsensual touching and stated that she did not consent to the manipulation of her hip. Dr. Newton did not address medical battery in his reply brief.

¶69 At oral argument on the summary judgment motion, Dr. Newton did not object to Reagan's medical battery claim on the basis that it had not been raised in her complaint. Instead, he discussed applicable case law and argued that the medical battery theory did not apply to the facts because Reagan had consented to Dr. Newton's performance of the IME. Reagan responded that there was "clearly a question of fact in terms of whether or not there's a medical battery here." Report of Proceedings (RP) at 21. Reagan also pointed out "that the defense raised nothing in its reply with respect to the medical battery." RP at 23. In response, Dr. Newton briefly argued again that there could be no medical battery claim because Reagan had consented to the IME.

¶70 It is unclear whether or not the trial court considered the medical battery claim. The court asked no questions during oral argument, took the matter under advisement, and did not issue an oral ruling. The court later issued a written summary judgment order that dismissed without comment "[t]he claims asserted by the Plaintiff." CP at 216.

¶71 Under Dewey and Kirby , Dr. Newton's argument on the merits at the summary judgment hearing does not necessarily preclude him from asserting that CR 15(b) is inapplicable. As this court noted in Kirby , a defendant should not be penalized for attempting a defense to an unpleaded claim where the defendant's lack of preparation is the result of the plaintiff's procedural failures. 124 Wash. App. at 471, 98 P.3d 827. However, in both of those cases the defendant argued at the summary judgment hearing that the new claim had not been pleaded in the complaint. Id. ; Dewey , 95 Wash. App. at 26, 974 P.2d 847. Even the defendant in Denny's raised the plaintiff's failure to plead the new claim. 71 Wash. App. at 214, 859 P.2d 619. Here, Dr. Newton made no such argument and never objected to addressing the medical battery claim on the merits.

¶72 Based on Dr. Newton's failure to object to Reagan asserting the medical battery claim and arguing that claim on the merits, we hold that the summary judgment proceedings amounted to a trial of the claim by implication under CR 15(b). Accordingly, we apply CR 15(b) and treat the medical battery claim as if it had been raised in the complaint.

4. Statute of Limitations

¶73 Dr. Newton argues that even if we can consider Reagan's medical battery claim under CR 15(b), that claim is barred by the statute of limitations. We disagree.

¶74 The statute of limitations for common law battery claims is two years. RCW 4.16.100(1). Reagan alleges that she was injured on May 13, 2014. She filed her lawsuit against Dr. Newton on December 14, 2015, well within the statute of limitations. But Dr. Newton points out that Reagan did not raise the medical battery claim until she filed her summary judgment response on June 12, 2017, which was more than two years after she filed suit.

¶75 However, CR 15(b) states that if issues are tried by express or implied consent, the issues "shall be treated in all respects as if they had been raised in the pleadings." (Emphasis added.) "In all respects" necessarily includes treating the issue as pleaded at the time of the original complaint for statute of limitations purposes. See Reichelt , 107 Wash.2d at 766-73, 733 P.2d 530. Therefore, we reject Dr. Newton's statute of limitations argument.

5. Summary Judgment on Medical Battery Claim

¶76 Because Reagan's medical battery claim must be treated as if the claim was raised in the complaint, we address whether Reagan provided sufficient evidence to avoid summary judgment. We hold that the trial court erred in dismissing the medical battery claim on summary judgment.

¶77 Reagan cited her own deposition and Wilson's declaration to support the conclusion that Dr. Newton intentionally "yanked," CP at 114, on Reagan's leg after she withdrew her consent to be touched further. Both remember Reagan telling Dr. Newton "that's as far as it goes" before he further rotated her leg from the hip, causing Regan to cry out in pain. CP at 114. Both also recall Dr. Newton then saying something to the effect of, "That's the response I was looking for." CP at 110, 114. This testimony is sufficient to create genuine issues of fact regarding the existence of an offensive contact, Dr. Newton's intent to cause that contact, and Reagan's withdrawal of any consent to further rotate her hip.

¶78 Dr. Newton raises three brief arguments on the merits of the medical battery claim. First, he argues that Reagan relies only on her own self-serving testimony that he intentionally injured her. But a party's declaration is enough to create a question of fact where her deposition testimony was based on her personal observations of the defendant's conduct. Sutton , 180 Wash. App. at 866, 324 P.3d 763. On a summary judgment motion brought by the opposing party, we must treat the plaintiff's eyewitness testimony as true, even if it is self-serving. Id.

¶79 Second, Dr. Newton argues that Reagan consented to the IME and did not show that she did not consent to his touching of her as required in Bundrick , 128 Wash. App. at 18, 114 P.3d 1204. But viewed in the light most favorable to Reagan, both her testimony and Wilson's testimony support an inference that Reagan asked Dr. Newton to stop pushing on her hip and thereby withdrew her consent to that maneuver.

¶80 Third, Dr. Newton argues that Reagan submitted no admissible evidence that he intended to cause her harm. But both Reagan and Wilson testified that after Reagan cried out in pain, Dr. Newton stated that he was looking for that response. And as noted above, the requisite intent for battery is to cause the offensive contact, not the actual harm. Kumar , 180 Wash.2d at 504-05, 325 P.3d 193 ; Sutton , 180 Wash. App. at 865-66, 324 P.3d 763.

¶81 Genuine issues of material fact existed regarding Dr. Newton's liability for medical battery. Accordingly, we hold that that the medical battery claim should not have been dismissed.

CONCLUSION

¶82 We affirm the trial court's dismissal of Reagan's medical malpractice claim, but we reverse the trial court's dismissal of Reagan's medical battery claim and remand for further proceedings.

We concur:

MELNICK, J.

SUTTON, J.

      Here, the issue is whether an IME physician is subject to the medical malpractice statute for injuries caused during an IME, and our holding is limited to that issue. We do not address whether an IME physician who fails to inform the person being examined of abnormalities discovered during the examination is subject to medical malpractice liability and we express no opinion on whether Daly was decided properly.

      In the trial court, Reagan argued that Dr. Newton also could be liable under RCW 7.70.030(2) and (3). However, she does not assign error to the trial court's dismissal of claims under those subsections and she does not argue on appeal that she has valid claims under those subsections. Therefore, we do not address such claims.

      The holding in Bundrick , which this court cited with approval in Young , seems inconsistent with the language of RCW 7.70.010. That statute states that the medical malpractice statute applies to "all civil actions and causes of action, whether based on tort, contract, or otherwise, for damages for injury occurring as a result of health care." The Supreme Court has stated, " '[W]henever an injury occurs as a result of health care, the action for damages for that injury is governed exclusively by RCW 7.70.' " Fast , 187 Wash.2d at 34, 384 P.3d 232 (alteration in original) (quoting Branom , 94 Wash. App. at 969, 974 P.2d 335 ). These cases suggest that medical battery would fall within the medical malpractice statute if the claim arose from health care. But Dr. Newton does not argue that medical battery is not a viable claim apart from chapter 7.70 RCW. Therefore, we do not address this issue.


source: Caselaw Access Project

author: Melnick, J.

license: Public Domain

text:
    STATE of Washington, Respondent, v. MIN SIK KIM, Appellant.
    No. 50951-2-II
    Court of Appeals of Washington, Division 2.
    Filed March 8, 2019
    Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Appellant.
    Mark Von Wahlde, Pierce County Prosecuting Attorney Office, 930 Tacoma Ave. S Rm. 946, Tacoma, WA, 98402-2102, for Respondent.
    PUBLISHED IN PART OPINION
   Melnick, J.

¶1 Min Sik Kim plead guilty to murder in the second degree, a serious violent offense. He appeals his sentence. In the published portion of this opinion, we reject Kim's argument that he should have received credit for his presentence electronic home monitoring (EHM). The 2015 amendment to RCW 9.94A.505 precludes felons convicted of certain crimes, including murder in the second degree, from receiving credit for time served on EHM before sentencing. In the unpublished portion of this opinion, we reject Kim's other arguments regarding his sentence. We affirm.

FACTS

¶2 In March 2016, Kim shot and killed Jakeel Mason who attempted to steal items from Kim's convenience store. The State charged Kim with murder in the second degree. Pretrial, the court released Kim from custody but imposed numerous conditions including he could only reside at his home address, he could not travel outside Pierce, King, Thurston, or Kitsap counties, he could not contact victims or witnesses, he could not possess weapons or firearms, and he could not consume or possess alcohol or marijuana. The court also ordered him to be on EHM.

¶3 Approximately one year later, Kim plead guilty to the murder charge. Pending sentencing, the court released Kim on similar conditions, including continued EHM.

¶4 The court sentenced Kim to 100 months. Kim sought credit for the 450 days he had spent on EHM. Because of RCW 9.94A.505(7), the court did not give Kim credit for time spent on EHM. Kim appeals.

ANALYSIS

¶5 Kim argues that RCW 9.94A.505(7) violates the double jeopardy, equal protection, and due process clauses of the United States and Washington constitutions. We disagree.

I. APPLICABLE STATUTES

¶6 The general rule is that a person shall receive credit for time served in confinement. RCW 9.94A.505(6). The term "confinement" means "total or partial confinement." RCW 9.94A.030(8). Under RCW 9.94A.030(36), "partial confinement" includes electronic monitoring. However, a "sentencing court shall not give [an] offender credit for any time the offender was required to comply with an electronic monitoring program prior to sentencing if the offender was convicted of ... [a] violent offense." RCW 9.94A.505(7)(a).

¶7 Murder in the second degree is a serious violent offense and a subcategory of a violent offense. RCW 9.94A.030(46)(a)(iii).

II. DOUBLE JEOPARDY

¶8 Kim argues that because he served 450 days on EHM, and because EHM continues to be statutorily defined as "confinement," RCW 9.94A.505(7) is punitive in intent. Therefore, Kim claims that he is being subjected to unconstitutional "confinement" twice for the 450 days he served on EHM. We disagree.

¶9 The Fifth Amendment to the United States Constitution and article I, section 9 of the Washington Constitution provide a prohibition against double jeopardy that protects defendants from multiple punishments for the same offense. State v. Kelley , 168 Wash.2d 72, 76, 226 P.3d 773 (2010).

¶10 Double jeopardy challenges are analyzed using a two-part test. The first part asks whether the government intends the action to be punitive, and if it does not, the second part asks whether the action's purpose or effect is nevertheless so punitive as to negate the government's nonpunitive intent. Harris v. Charles , 171 Wash.2d 455, 467, 256 P.3d 328 (2011). Kim only alleges a violation of the first part of the test.

¶11 As noted previously, partial confinement includes EHM. RCW 9.94A.030(36). In 2015, the legislature amended RCW 9.94A.505 to exclude credit for any time served presentence on EHM if the offender was convicted of a violent offense. RCW 9.94A.505(7) ; LAWS OF 2015, ch. 287, § 10. The 2015 amendment did not affect RCW 9.94A.505(6) or any relevant RCW 9.94A.030 definitions. We need to determine if the legislature's changes evince an intent that presentence EHM is punitive. Harris , 171 Wash.2d at 467, 256 P.3d 328.

¶12 In Harris , the court decided that pretrial EHM for a misdemeanor was not punitive. When "imposed as a condition of pretrial release pursuant to CrR 3.2 or CrRLJ 3.2, [EHM] is not intended as punishment but rather as a means of alleviating the burdens of pretrial detention and of assuring the defendant's future appearance in court." Harris , 171 Wash.2d at 469 n.10, 256 P.3d 328. In determining whether the purpose or effect was punitive, Harris noted the "clear distinction [Washington courts recognize] between jail time and nonjail time." 171 Wash.2d at 470, 256 P.3d 328. Harris concluded that the petitioner failed to "explain how his time on EHM was so punitive in effect as to overcome its intended nonpunitive purpose." 171 Wash.2d at 472, 256 P.3d 328.

¶13 For further support that presentence EHM is not punitive, as stated in Harris , "a defendant in pretrial detention 'is severely handicapped in his defense preparation' and 'is often unable to retain his job and support his family, and is made to suffer the public stigma of incarceration even though he may later be found not guilty.' " 171 Wash.2d at 468, 256 P.3d 328 (quoting CRIMINAL RULES TASK FORCE, WASHINGTON PROPOSED RULES OF CRIMINAL PROCEDURE Rule 3.2 cmt. at 22 (1971) ). "As a condition of pretrial or presentencing release, EHM addresses these concerns and furthers the intent of the original pretrial release rule because a defendant on EHM may visit his attorney and continue to go to a job." Harris , 171 Wash.2d at 469, 256 P.3d 328.

¶14 The Minority and Justice Commission proposed adding EHM as an alternative to be used with pretrial release to avoid discrimination based on people who are economically disadvantaged. Harris , 171 Wash.2d at 469, 256 P.3d 328 (citing Proposed amendment to CrR 3.2, 145 Wn.2d Proposed-67 ( Official Advance Sheet No. 4, Jan. 8, 2002) ). It was not proposed as punishment. Harris , 171 Wash.2d at 469, 256 P.3d 328.

¶15 Kim argues that because the legislature amended RCW 9.94A.505 to deny EHM credit for certain crimes but did not modify the definition of "confinement" in RCW 9.94A.030, Kim is subject to double "confinement," and the amended law fails the first prong of the double jeopardy test because it is punitive in its intent. We disagree.

¶16 Kim's argument conflates the statutory definition of "confinement" with the constitutionally mandated double jeopardy term of "incarceration." The Washington and United States constitutions require only that defendants receive credit for time served for the latter. Harris , 171 Wash.2d at 470-71, 256 P.3d 328 ("[T]his court has acknowledged that credit for home detention time might not be constitutionally required. ... [While] double jeopardy demand[s] that all defendants receive credit for time spent in incarceration prior to sentencing."). ¶17 As discussed above, Harris makes clear that EHM as a condition of pretrial release is not intended as punishment. 171 Wash.2d at 469 & n.10, 256 P.3d 328. As a result, we conclude that the legislature did not intend presentence EHM as punishment.

III. EQUAL PROTECTION

¶18 Kim argues that the 2015 amendment to RCW 9.94A.505 violates equal protection because it makes two arbitrary classifications. First, Kim argues that it draws improper classifications between different crimes. For example, the amendment permits sentencing courts to give credit for EHM to white collar criminals but not to murderers, as is the case here. Second, he contends it draws improper classifications among defendants who have committed the same crime. For example, Kim argues that if one person is released without any conditions and the other is released subject to EHM, the person who is subject to EHM will end up serving more time in "confinement" for the same crime and for the same sentence. We disagree that there is an equal protection violation.

¶19 "Equal protection requires that persons similarly situated with respect to the legitimate purpose of the law receive like treatment." State v. Simmons , 152 Wash.2d 450, 458, 98 P.3d 789 (2004). Article I section 12 of the Washington Constitution and the equal protection clause of the Fourteenth Amendment are "substantially identical and they are thus considered one issue." In re Pers. Restraint of Ramsey , 102 Wash. App. 567, 573, 9 P.3d 231 (2000). "Equal protection is not intended to provide complete equality among individuals or classes but equal application of the laws." Simmons , 152 Wash.2d at 458, 98 P.3d 789.

¶20 The parties agree that under Harris , Kim's equal protection argument should be analyzed under the rational basis test because "it does not involve a suspect or semisuspect class or a fundamental right." 171 Wash.2d at 463, 256 P.3d 328. Under rational basis review, "[a] party challenging the application of a law as violating equal protection principles has the burden of showing that the law is irrelevant to maintaining a state objective or that it creates an arbitrary classification." Simmons , 152 Wash.2d at 458, 98 P.3d 789.

¶21 In Harris , the court concluded that two legitimate government interests rationally related to the legislature's decision to allow felons, but not misdemeanants, sentencing credit for presentence EHM. 171 Wn.2d at 462-66, 256 P.3d 328. First, "[r]equiring courts to grant misdemeanants credit for time on EHM would hinder the ability of sentencing judges to order jail time for misdemeanor offenses." Harris , 171 Wash.2d at 473, 256 P.3d 328. Second, the distinction maintained misdemeanor sentencing courts' discretion to impose rehabilitative sentencing, which is a goal of nonfelony sentencing but is "not a justification for [felony] sentencing under the [Sentencing Reform Act of 1981 (SRA) ]." Harris , 171 Wash.2d at 465, 256 P.3d 328.

¶22 But in State v. Anderson , 132 Wash.2d 203, 213, 937 P.2d 581 (1997), the court held that no rational basis existed for the legislature to distinguish between presentence and post-sentence EHM. The statutes at issue in Anderson required sentencing courts to give credit for the former but not the latter. 132 Wash.2d at 208-09, 937 P.2d 581.

¶23 Here and in Harris we are looking at what crimes are eligible for credit for presentence time spent on EHM. Anderson discussed the differences between presentence and post-sentence EHM. Therefore, Harris is more on point. A rational basis supports the legislature's decision.

¶24 Here, as Kim points out, the 2015 amendment leads to two classifications. First, the amendment distinguishes between felons convicted of violent offenses and felons convicted of all other felonies not listed in the statute. RCW 9.94A.505(6) - (7). Second, the amendment distinguishes between violent offenders, i.e., between defendants released on presentence EHM who are "confined" but not given credit for that confinement and defendants released with no conditions who do not serve an additional and unaccounted for "confinement" period. ¶25 Regarding Kim's first argument, a rational basis exists for the legislature's decision to not allow credit for time served on presentence EHM release. The legislature has made a determination that people who are convicted of more serious crimes should not get credit for time served on presentence EHM.

¶26 The State has at least two legitimate interests and must balance these sometimes-competing interests. First, it has a legitimate interest in protecting its citizens. It also has a legitimate interest in affording criminal defendants adequate defense preparation. EHM can conflict with the State's first interest, but it undoubtedly furthers the State's second interest. See Harris , 171 Wash.2d at 469, 256 P.3d 328. In an attempt to balance these interests, the legislature looked to the relative seriousness of various crimes to determine which felons should receive credit for presentence EHM. Thus, the legislature has made a determination that people who are charged with more serious crimes are a greater threat to society and should not receive presentence EHM credit. There is a sufficient rational basis for the legislature to make this distinction because it is an attempt to balance and further its two legitimate interests identified above.

¶27 As to Kim's second argument, there is also a rational basis. Kim argues that the legislature's action had no rational basis because, as currently defined, the statute imposes more "confinement" on defendants subject to EHM than on defendants who committed the same crime and were sentenced identically but who were released without any conditions. However, there is a rational basis for the legislature to distinguish between these two types of defendants because other factors, including a person's flight risk, are taken into consideration by a judge in determining whether a defendant should be released on EHM or without conditions. CrR 3.2. Kim's argument is based on the legislature's use of the term "confinement." But the legislature, in making a specific statute, carved out an exception for when confinement does not include EHM. Kim's argument is based on nomenclature, not constitutional grounds.

¶28 We conclude that RCW 9.94A.505(7) does not violate Kim's equal protections rights.

CONCLUSION

¶29 RCW 9.94A.505(7) does not infringe Kim's constitutional rights under the double jeopardy or equal protection clauses under the United States and Washington constitutions. We affirm.

¶30 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

Maxa, C.J.

Lee, J.

      The State argues that Kim failed to present an adequate record for review of Kim's double jeopardy, equal protection, and due process claims. We disagree. However, as to Kim's due process claim, Kim only provided conclusory arguments and passing treatment to this issue; therefore, we do not consider it. RAP 10.3(a)(6) ; State v. Thomas , 150 Wash.2d 821, 868-69, 83 P.3d 970 (2004).

      The legislature added this subsection in 2015. Laws of 2015, ch. 287, § 10.

      This provision applies to states through the Fourteenth Amendment. Benton v. Maryland , 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).


author: Pennell, J.

text:
    STATE of Washington, Appellant, v. STEVENS COUNTY DISTRICT COURT JUDGE, Respondent.
    No. 35966-2-III
    Court of Appeals of Washington, Division 3.
    Filed March 12, 2019
    Will Morgan Ferguson, Stevens County Prosecutor's Office, 215 S Oak St. Ste. 114, Colville, WA, 99114-2836, for Appellant.
    Gerald John Moberg, Attorney at Law, 124 3rd Ave. Sw, Ephrata, WA, 98823-5100, for Respondent.
    PUBLISHED OPINION
   Pennell, J.

¶1 Washington's superior and district courts share a limited amount of concurrent criminal jurisdiction. When one court exercises its jurisdiction in a specific case, the priority of action doctrine prohibits another court from interfering. But what constitutes the same case for purposes of the priority of action doctrine is not always clear. Our case law establishes that a search warrant proceeding is not part of the same case for purposes of the doctrine because one proceeding does not have a preclusive effect on the other. We now hold that the same is true for a preliminary appearance hearing. A court's authority to hold a preliminary appearance hearing is separate from the authority to adjudicate a criminal trial, and the preliminary appearance hearing has no preclusive effect on the criminal trial process.

¶2 Because a preliminary appearance hearing is distinct from the criminal trial process, a district court's exercise of authority over a substantive criminal charge does not preclude the superior court from holding a preliminary appearance hearing. This matter is therefore reversed, with instructions that the State be granted a writ of mandamus directing the district court to recognize the validity of preliminary appearance orders issued by the superior court.

FACTS

¶3 This case arises from a dispute between judges of the superior and district courts of Stevens County regarding how to handle preliminary appearances for individuals arrested and detained in the county jail. The conflict began on January 29, 2018, when the administrator for the Stevens County Superior Court sent an e-mail to the superior and district court judges, prosecutors, and others notifying them that all in-custody first appearances for both courts were to be heard by the superior court at noon on Mondays through Fridays.

¶4 The superior court administrator's e-mail was not well-received by the district court. On February 2, 2018, Stevens County District Court Judge Gina Tveit e-mailed the district court staff directing that no orders be filed in a district court case unless signed by a district court judge or district court judge pro tem. This e-mail was copied to the superior court judges, the county clerk, the county's chief corrections officer, and the superior court administrator (who then forwarded it to the prosecutor's office).

¶5 On February 5, 2018, the Stevens County Superior Court judges jointly signed an administrative order requiring all preliminary appearances be heard by the superior court judges or a court commissioner. The order identified the reasons for instituting the policy, including: scheduling conflicts between the courts, the clerks, the jail, and attorneys; the hardship to the jail to accommodate different first appearances held in both courts; the frequent interruptions and excessive delays caused by the current procedure; and the superior court's ability to remedy the situation by conducting all first appearances during the noon hour via video to the jail.

¶6 The Stevens County prosecuting attorney subsequently filed a petition for writ of mandamus, seeking to require Judge Tveit to rescind her February 2, 2018, directive and to recognize the validity of superior court preliminary appearance orders. According to the affidavit in support of the petition, a Stevens County Superior Court judge presided over an in-custody first appearance for an individual named Edwin Maestas concerning two gross misdemeanors. The superior court judge entered a CrR 3.2 hearing order and set the matter over to the district court for 1:30 p.m. that day. The district court staff did not file the order or set the matter on the district court's docket. The State's affidavit also referenced two other criminal cases where Judge Tveit disregarded the administrative order and presided over the preliminary appearances.

¶7 The State's petition for mandamus was heard by a visiting superior court judge, appointed pursuant to RCW 4.12.040. Citing the priority of action rule, the visiting judge denied the State's petition. In his memorandum opinion dated March 7, 2018, the judge reasoned that a preliminary appearance is part of a criminal case and once the district court assumes jurisdiction of a case through a filed criminal charge, the superior court is prohibited from exercising jurisdiction.

¶8 The State timely appeals.

ANALYSIS

¶9 A statutory writ of mandamus may be issued "to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station." RCW 7.16.160. Our case law recognizes the availability of a statutory writ when a judge of a court of limited jurisdiction takes action that is legally erroneous and not correctable on appeal. City of Kirkland v. Ellis , 82 Wash. App. 819, 827-28, 920 P.2d 206 (1996). Legal issues regarding the propriety of a writ are reviewed de novo. Burd v. Clarke , 152 Wash. App. 970, 972, 219 P.3d 950 (2009).

¶10 The State filed a mandamus petition in order to compel the Stevens County District Court to recognize and file preliminary hearing orders issued by the superior court in district court cases. Because district court clerks act at the direction of district court judges, RCW 3.54.020, the mandamus petition was directed at Stevens County District Court Judge Tveit. According to the State, mandamus should issue because Judge Tveit's instruction that the district court staff not accept preliminary hearing orders from superior court is based on a mistake of law. According to the State, the superior court retains authority to hold a preliminary hearing and enter related orders, even after a district court case has been filed and the district court has assumed exclusive original jurisdiction over the trial process.

¶11 Our assessment of the State's position requires an analysis of superior court jurisdiction and how that jurisdiction is, or is not, limited by a district court's exercise of jurisdiction over a particular criminal case. In this context, the term "jurisdiction" refers to a court's power to act. ZDI Gaming, Inc. v. Wash. State Gambling Comm'n , 173 Wash.2d 608, 616, 268 P.3d 929 (2012).

¶12 Superior and district courts are separate courts, but they enjoy a significant amount of concurrent criminal authority. The superior court's authority is derived directly from the state constitution. WASH. CONST. art. IV, § 5. A superior court has broad criminal jurisdiction over felonies and misdemeanors "not otherwise provided for by law." Id . at § 6. In contrast to superior courts, a district court's powers are limited to what is prescribed by statute. Id . at §§ 10, 12. The statute setting forth a district court's criminal jurisdiction is RCW 3.66.060. Among other things, this statute grants a district court jurisdiction over all misdemeanors and gross misdemeanors. This conferral of authority is explicitly concurrent with the jurisdiction of the superior court. RCW 3.66.060.

¶13 Concurrent jurisdiction carries a risk of misuse. Left unchecked, a prosecutor might abuse his or her access to concurrent courts by filing " 'successive prosecutions based upon essentially the same conduct' " in order to " 'hedge against the risk of an unsympathetic jury,' " place an unwarranted " 'hold upon a person after he [or she] has been sentenced to imprisonment,' " or might simply " 'harass' " an accused person " 'by multiplicity of trials.' "

State v. McNeil , 20 Wash. App. 527, 532, 582 P.2d 524 (1978) (internal quotation marks omitted) (quoting COMMENTARY TO ABA STANDARDS RELATING TO JOINDER AND SEVERANCE , § 1.3 at 19 (Approved Draft, 1968) ).

¶14 To guard against misuse of concurrent jurisdiction, our case law has developed the doctrine of priority of action. Also known as the first-in-time rule, the priority of action doctrine holds that "the court which first gains jurisdiction of a cause retains the exclusive authority to deal with the action until the controversy is resolved." Sherwin v. Arveson , 96 Wash.2d 77, 80, 633 P.2d 1335 (1981) ; see also State ex. rel. Harger v. Chapman , 131 Wash. 581, 584-85, 230 P. 833 (1924). The priority of action doctrine is reflected in the procedural rules governing district court, which provide that "[i]f two or more charging documents are filed against the same defendant for the same offense in different courts, and if each court has jurisdiction, the court in which the first charging document was filed shall try the case." CrRLJ 5.3.

¶15 Whether the priority of action doctrine applies in a given case turns on principles of res judicata. In order for the priority of action doctrine to apply, "there must be identity of [ (1) ] subject matter, [ (2) ] relief, and [ (3) ] parties." Am. Mobile Homes of Wash. v. Seattle-First Nat'l Bank , 115 Wash.2d 307, 317, 796 P.2d 1276 (1990). If these criteria are not met, the doctrine does not apply and a court retains authority to act according to its concurrent jurisdiction. In re Search Warrant for 13811 Highway 99 , 194 Wash. App. 365, 374, 378 P.3d 568 (2016).

¶16 We have previously held that the priority of action doctrine does not apply in the search warrant context. See , e.g. , id . at 374-75, 378 P.3d 568 ; State v. Stock , 44 Wash. App. 467, 474, 722 P.2d 1330 (1986). Although superior courts share authority to issue search warrants with courts of limited jurisdiction, see RCW 10.79.035 and RCW 2.20.030, a search warrant proceeding is distinct from a criminal trial and has no preclusive effect on the trial process. Stock , 44 Wash. App. at 474-75, 722 P.2d 1330. Looking at the priority of action test, none of the three elements of identity-parties, subject matter, and requested relief-are present. Search Warrant for 13811 Highway 99 , 194 Wash. App. at 374, 378 P.3d 568. Thus, the existence of a criminal charge in one court does not preclude another court from addressing a search warrant application.

¶17 The priority of action analysis yields the same result for preliminary appearance hearings as it does for search warrant proceedings. There is no shared identity between a preliminary appearance hearing and a criminal trial. A preliminary appearance hearing is a special proceeding that is not considered a "critical stage" of a criminal prosecution. See Gerstein v. Pugh , 420 U.S. 103, 122-23, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) ; State v. Jackson , 66 Wash.2d 24, 28-29, 400 P.2d 774 (1965) ; see also RCW 3.66.060(1), (2) (differentiating between the power over a criminal trial and the power to conduct preliminary hearings). The subject matter of a preliminary appearance hearing is limited to a nonadversarial determination of probable cause, appointment of counsel, custody, and an advisement of rights. CrR 3.2.1; CrRLJ 3.2.1. Nothing decided at a preliminary hearing has any preclusive effect at a subsequent trial. Indeed, because a preliminary appearance hearing is not a critical stage of a criminal prosecution, the topics of trial-guilt and punishment-are not available for resolution. See Gerstein , 420 U.S. at 122, 95 S.Ct. 854 ; Jackson , 66 Wash.2d at 28-29, 400 P.2d 774 ; In re Pers. Restraint of Sanchez , 197 Wash. App. 686, 702, 391 P.3d 517 (2017).

¶18 The motivating purposes of the priority of action rule would not be served by applying it in the current circumstances. Permitting different courts to handle a preliminary hearing and criminal trial does not create a risk of prosecutorial mischief. To the contrary, broadening the number of courts empowered to handle a preliminary hearing helps protect a defendant's right to be free of unwarranted detention.

¶19 As is true in the search warrant context, a court's authority to conduct a preliminary hearing is separate from the authority to adjudicate a criminal trial. The criminal trial process commences with the filing of formal charges and subsequent arraignment. CrR 2.1, 3.3(c)(1), 4.1 ; CrRLJ 2.1, 3.3(c)(1), 4.1. In this context, a court's role is reactive; it has no authority to proceed without receiving some sort of formal charge. But a preliminary hearing is different. A court has a constitutional duty to take proactive measures to protect the rights of detained persons. County of Riverside v. McLaughlin , 500 U.S. 44, 52-53, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). This duty persists regardless of whether the prosecutor's office has filed formal charges. See Gerstein , 420 U.S. at 116-17, 95 S.Ct. 854. Our court rules recognize this unique duty and specify that district and superior courts have a shared responsibility for ensuring that "any" person detained is afforded a prompt preliminary hearing, regardless of whether charges have been filed or in which court. CrR 3.2.1(d)(1); CrRLJ 3.2.1(d)(1).

¶20 Because a preliminary hearing is a proceeding separate from the process of a criminal trial, Judge Tveit's directive that the Stevens County District Court not accept preliminary appearance orders from superior court was legally erroneous. Unless a preliminary appearance hearing has already been held, the superior court retains the power and duty to promptly hold a preliminary appearance hearing for a detained person, even if a charge has been filed in district court. The State is therefore entitled to mandamus, directing Judge Tveit to recognize the legal validity of superior court orders in this context.

CONCLUSION

¶21 This matter is reversed and remanded to superior court with instructions to grant the State's petition for writ of mandamus.

WE CONCUR:

Lawrence-Berrey, C.J.

Korsmo, J.

      The state constitution refers to district court judges as "justices of the peace." Id .