WSHA evaluating negative trends for hospitals in Washington court decisions

March 13, 2024

As part of its advocacy for hospitals, WSHA tracks litigation of interest and files friend of the court (amicus) briefs in cases with the potential to have significant impacts on hospitals. There are also times when WSHA initiates litigation on behalf of hospitals, challenging laws or government practices that are harmful or problematic.

In the past few years, court decisions in Washington have trended toward increasingly negative outcomes for hospitals and health care providers, and in some cases the decisions have been deeply concerning. (Examples are the repeal of key portions of the state’s medical malpractice reforms and vast expansion of the scope of the medical malpractice cause of action.) WSHA supported hospitals in many of these cases by weighing in with amicus briefs.

In the past, amicus support often helped the court reach a favorable decision. Unfortunately, the trends in the courts have meant fewer positive outcomes. WSHA is actively considering options to counter this trend, exploring paths with its governance and partner organizations, like the Washington State Medical Association. One part of WSHA’s increased advocacy is raising the visibility of these adverse decisions with member hospitals.

Below is a list of recent amicus cases that WSHA has been involved in and the current status or outcome of the case.

Recent Cases with Adverse Outcomes:

M.N. & G.T. v MultiCare Health System, Inc., No. 101537-2 (Wash. Jan. 18, 2024) – In Dec. 2022, the Washington State Supreme Court, sitting en banc, expanded the medical malpractice cause of action to include emotional distress, including fear of infectious disease, not tied to any form of physical harm. The decision in this case also opened the door to recognition of class action status in medical malpractice cases. This case arose from MultiCare notifying patients of potential exposure to Hepatitis C due to their treatment in the emergency department.

Bennett v. United States, No. 101300-1 (Wash. December 7, 2023) – In a question certified to the Washington State Supreme Court from the 9th circuit, the State Supreme Court invalidated the statute of repose (the firm limit on the number of years after which an injury occurs that a lawsuit can be brought), holding that it is unconstitutional. This was the last significant piece of medical malpractice reform agreed to by trial lawyers and provider groups from 2006. The court has invalidated all others as well.

Fraley v. CommonSpirit Health, 528 P.3d 1283 (2023) (citation to appellate court opinion)The Washington State Supreme Court denied review of an appellate decision allowing a case for a medical malpractice action to proceed even though an improper filing violated the statute of limitations. WSHA and the Washington State Medical Association submitted an amicus brief requesting the court to review the decision, but the court denied review, allowing the case to proceed.

Cases Pending Decision, Oral Argument Completed, Anticipating Adverse Outcomes:

Suarez v. State of Washington, et al., 517 P.3d 474 (Wash. Ct. App. 2022) (citation to appellate court case below) – The Washington State Supreme Court is considering what constitutes undue hardship for an employer when a request for religious accommodation is made. The court is likely to significantly increase the bar of what constitutes undue hardship, making it more difficult for employers to enforce vaccine requirements and cover weekend/evening shifts. The case arose from a worker at an institution that provides round-the-clock care. After accepting a job the worker states their religion does not allow work on Saturdays. Oral argument took place in February in the Washington State Supreme Court and a decision is pending.

Essex v. Grant Cty. Pub. Hosp. Dist. No. 1, 523 P.3d 242 (Wash. Ct. App. 2023) (citation to appellate court case below) The Washington State Supreme Court is considering whether a hospital should automatically be liable for the negligent acts of contracted staff. Until now, the question has required factual analysis of the relationship and how the role of the staff member is perceived by the plaintiff. This case, which arose out of the negligent acts of an emergency department physician, could make it a “non-delegable duty” for the hospital to be responsible for contracted staff’s acts or omissions. The court seems poised to hold that hospitals are automatically liable for negligence acts committed by contracted physicians.

Cases Pending Oral Argument or Settled:

Androckitis v. Virigina Mason Medical Center, No. 18-2-07137-4 SEA (June 4, 2021) (citation to trial court order below) – The Division I Court of Appeals is considering a trial court summary judgement order holding that employees are entitled to additional penalty payments for missed or interrupted meal and rest breaks, on top of existing statutory penalties and payment for time worked. If affirmed, the trial court’s summary judgment ruling would entitle any non-exempt, hourly employee who misses a meal period to an additional payment equal to 30 minutes, plus another 30 minutes of pay if the violation is deemed “willful.” As a result, this case poses the risk of adding up to an additional 60 minutes of damages – up to 120 minutes of pay total – for every missed 30-minute meal period than has historically been permitted in Washington State. The briefing will be in April.

Seattle Times v. BHC, No. 22-2-02748-7 SEA (January 18, 2023) (citation to trial court order below) – This case is related to a dispute regarding the application of the Public Records Act (“PRA”) to a private corporation, the Northwest School of Innovative Learning, operated by BHC Fairfax Hospital. If affirmed, the trial court’s holding could have subjected government contractors and heavily regulated entities, including hospitals and health care, to public records requests. This case was ultimately settled.

American Hospital Association v. Rainer (no opinion yet, see more information at the AHA website here) – American Hospital Association (AHA) v. Rainer concerns a new rule from the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) that severely restricts hospitals’ ability to rely on common third-party technologies use to analyze their websites and communicate reliable, accurate health information to the communities they serve, challenging federal guidance on the use of third-party online tracking technologies. WSHA joined as an amicus with 17 other state hospital associations. The briefing was in early January 2024 and argument and decision dates are still to be determined. (Cara Helmer)


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