¶ 1 In the state of Washington, medical malpractice is a statutory cause of action, which requires that the plaintiff prove the standard of care to be exercised by a health care provider within the profession or class to which he or she belongs. This is no less the case when a hospital opts to provide medical care to its patients by using a "team approach." Here, Raymond Grove filed a lawsuit against PeaceHealth St. Joseph Medical Center (PeaceHealth), alleging medical malpractice for failure to timely diagnose compartment syndrome in his left leg. Grove sought damages against PeaceHealth under a theory of vicarious liability for negligence committed by its medical team or, alternatively, by Dr. Richard Leone as the leader of the team. The jury found in Grove's favor and awarded Grove $583,000 in damages. The trial court overturned the verdict on a motion for judgment as a matter of law, finding that no legal basis existed for holding PeaceHealth vicariously liable, given that Grove had not proved that any specific employee had acted negligently. Because Grove failed to prove the applicable standard of care as required by statute, we affirm.
¶ 2 On December 21, 2006, Grove underwent aortic root and valve replacement surgery at PeaceHealth in Bellingham. After the surgery was successfully completed, Grove was placed in the intensive care unit, as is standard hospital practice following heart surgery. Dr. Leone, Grove's attending physician during the surgery, acted as primary physician until December 25. On that date, Dr. Leone traveled to New Jersey for Christmas, and Dr. Edward Zech, the surgeon on call, assumed the role of primary physician. Similarly, Dr. James Douglas assumed the role of primary physician from Dr. Zech on December 29. Dr. Leone remained the surgeon of record until Grove was released from the hospital.
¶ 3 Grove developed a number of complications after his surgery. Significantly, he was having trouble breathing, and was thus intubated from December 23 through December 26, during which time he was sedated.
¶ 4 On December 31, Dr. Mostad noticed that Grove was unable to fully dorsiflex
¶ 5 A jury trial began on June 13, 2012. Witnesses for both parties testified that Grove was treated and attended to using a "team" approach. Dr. Douglas explained how the "team" approach operated, stating that the "team," consisting of "the surgeons and the physician assistants," made rounds together twice per day. He further stated, "In our situation our patients are seen by both surgeons or all three surgeons depending on the circumstance regardless of who is primarily in charge. So at any time a patient needs assistance that physician is well-aware of what's going on. So we basically assume everybody is our patient." Dr. Douglas testified that the "team" "evaluate[s] patients in such a way that everybody gets a chance to have input."
¶ 6 Dr. Leone testified that the "team" made rounds more than once a day and that the "team" may also include students, nurses, and other "ancillary staff." Dr. Zech testified that the method of treatment used was "very much a team approach," designed to keep all staff informed. Dr. Zech further testified that the team consisted of surgeons, physician assistants, and intensivists. PA Spears testified that the physicians might not do a physical examination of the patient during rounds, instead relying on the physician assistant's findings, if there was not a concern with the patient. However, PA Spears also testified that he always discussed the plan of care with the surgeons before he implemented it.
¶ 7 Dr. Sean Ghidella, an orthopedic surgeon and expert witness for Grove, testified that the care of Grove fell below the standard of care because of a lack of proper monitoring and a failure to rule out a known possible complication after surgery.
¶ 8 Dr. Ghidella testified that "unrecognized compartment syndrome" was below the standard of care because "[w]ith proper monitoring, this should have been an earlier recognized complication." Proper monitoring, according to Dr. Ghidella, would have consisted of interviewing Grove when he was alert and squeezing his leg to test for firmness, with increased physical monitoring while Grove was intubated. Dr. Ghidella would have recommended that Grove's leg be examined on every round. Dr. Ghidella testified that he was "not sure that any [monitoring] was done during critical parts of [Grove's] management, or at least appropriate monitoring." It was Dr. Ghidella's opinion, to a reasonable degree of medical certainty, that Grove would have had "no permanent deficits or at least a better outcome" had the standard of care been met. Dr. Ghidella was also of the belief that had the standard of care been met, he could have determined when Grove's compartment syndrome developed. Dr. Ghidella testified that the damage sustained by Grove was "clearly" a result of the late diagnosis.
¶ 9 Dr. Carl Adams, a cardiovascular surgeon and Grove's other expert witness, testified that he was familiar with "the standard of care for every cardiovascular surgeon practicing across the United States." Dr. Adams testified that it was his expert opinion that "the cardiovascular surgeon who is in charge of the patient's care failed to meet the standard of care that one would expect." Dr. Adams also testified that Dr. Leone was responsible for the "team," as team members report to the team leader. When asked, "So if the PAs make a mistake, it's the head of the ship's mistake?" Dr. Adams answered, "Correct."
¶ 10 Dr. Adams testified that the standard of care was breached because "knowing that this patient had a very complex surgical procedure," the "team" should have checked for compartment syndrome, as it is a known complication of a long surgery. In Dr. Adams's opinion, it was "below the standard of care not to have diagnosed" compartment syndrome based on Grove's symptoms of "erythema,"
¶ 11 When questioning both experts about the standard of care, counsel for Grove framed the inquiry as follows: Have you developed an opinion to a reasonable degree of medical certainty, "concerning whether or not the medical treatment provided to Raymond Grove met the standard of care in the state of Washington for patients under the same or similar circumstances ... ?" PeaceHealth did not object to the form of the question on any occasion.
¶ 12 The trial court instructed the jury with regard to the standard of care and vicarious liability as follows:
Jury Instruction 3.
Jury Instruction 5.
¶ 13 The jury returned a special verdict in favor of Grove, finding that PeaceHealth was negligent and that such negligence was a proximate cause of Grove's injury.
(Emphasis added.) The trial court explained that a team is not negligent, but rather that "[t]here has to be a negligent player on the team." The trial court concluded:
Grove appeals from the trial court's ruling.
¶ 14 Grove asserts that he presented evidence sufficient to prove that the "team" which treated him was negligent and, therefore, that the jury's verdict should be reinstated. This is so, he asserts, because it is unnecessary to implicate a particular individual when the team as a whole did not adhere to the standard of care. We disagree. Grove did not prove the relevant standard of care.
¶ 15 This court reviews de novo a decision to grant or deny a motion for judgment notwithstanding the verdict. Schmidt v. Coogan, 162 Wn.2d 488, 491, 173 P.3d 273 (2007): Winkler v. Giddings, 146 Wn.App. 387, 394, 190 P.3d 117 (2008). Motions for judgment notwithstanding the verdict were renamed "`motions for judgment as a matter of law'" in 1993. Guijosa v. Wal-Mart
¶ 16 PeaceHealth is liable, if at all, under the doctrine of vicarious liability. Vicarious liability is liability for the negligence of an actor under the defendant's control. Van Hook v. Anderson, 64 Wn.App. 353, 363, 824 P.2d 509 (1992). An employer cannot be vicariously liable if its employees are not negligent. Doremus v. Root, 23 Wn. 710, 716, 63 P. 572 (1901); Orwick v. Fox, 65 Wn.App. 71, 88, 828 P.2d 12 (1992). The parties do not dispute that all members of the "team" were employees of PeaceHealth and that PeaceHealth is liable for the negligent acts of the members of the "team." At issue is whether, based on the evidence presented, PeaceHealth can be held vicariously liable for the negligence of the "team" as a unit or whether Grove needed to implicate a specific individual.
¶ 17 In Washington, medical malpractice is a statutory cause of action. Ch. 7.70 RCW. A plaintiff who alleges malpractice on the part of a health care professional must prove that
RCW 7.70.040. The plaintiff must prove the relevant standard of care through the presentation of expert testimony, unless a limited exception applies.
¶ 18 RCW 7.70.040(1) can be parsed into six elements that the plaintiff must prove in order to prevail on a claim of medical malpractice: (1) "The health care provider" (2) "failed to exercise" (3) "that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time" (4) "in the profession or class to which he or she belongs," (5) "in the state of Washington," (6) "acting in the same or similar circumstances." The problem with Grove's "team" theory is that it fails to include elements (1) and (4).
¶ 19 By not implicating a particular individual, Grove failed to prove the standard of care for the relevant "health care provider." Grove's experts did not state as to whom the standard of care applied, as they framed their testimony in terms of the standard
¶ 20 Moreover, the "team" cannot belong to a profession or class. It is unclear in this case who exactly was on the "team." Indisputably the "team" included the three surgeons and the PAs. Some witnesses expanded the "team" much further to include medical school students, nurses, intensivists, and "ancillary staff." Clearly these positions do not all belong to the same "profession or class."
¶ 21 Grove's "team" theory rests on the notion that causation and damages are enough to prove malpractice. In fact, Grove contends that duty is irrelevant to his claim.
¶ 22 The experienced trial judge detected this shortcoming when he overturned the jury's verdict. Although the evidence is this case was multitudinous and confusing such that it could and did mislead the jury, the trial judge discerned that Grove failed to prove a standard of care relevant to "a health care provider" belonging to a particular "profession or class." In his ruling, the trial judge explained that "a team isn't negligent," and instead there needed "to be a negligent player on the team." As he explained,
(Emphasis added.) As appealing as Grove's "team" theory may have been, the trial judge
¶ 23 Nevertheless, Grove contends that Thompson v. Grays Harbor Cmty. Hosp., 36 Wn.App. 300, 675 P.2d 239 (1983), and Hansch v. Hackett, 190 Wn. 97, 66 P.2d 1129 (1937), support his assertion that a hospital can be found liable when an unidentified member of a "team" acts negligently. We disagree.
¶ 24 In Thompson, the plaintiff, Dr. Thompson,
¶ 25 Thompson differs from this case in that Thompson's cause of action was not statutory, nor did it sound in medical malpractice. Tortious interference is a common law claim. Duty in such a claim is not related to any particular profession or class, and is instead based upon the defendant's knowledge of the plaintiffs relationships. Thompson, 36 Wash.App. at 303, 675 P.2d 239 (setting forth the elements of a prima facie case of tortious interference). Moreover, in a tortious interference case, no expert testimony is necessary to establish duty. Here, however, Grove was required to prove duty for the relevant "profession or class" of "health care provider" through expert testimony. RCW 7.70.040 does not contemplate a general overarching duty applicable to anyone who may have come into contact with the patient. Thus, Thompson is inapplicable to this case.
¶ 26 Hansch, though factually similar to this case, is also inapplicable. In Hansch, the plaintiff, Mr. Hansch, brought suit against Dr. Hackett and the Columbia Clinic for a failure to diagnose eclampsia contravis. 190 Wash. at 97-98, 101, 66 P.2d 1129. Mrs. Hansch, the plaintiff's wife, was alternatively under the care of Dr. Hackett, Dr. Clark, and two nurses, at various times during the hours before her untimely death. Hansch, 190 Wash. at 99-100, 66 P.2d 1129. The jury returned a verdict finding only the Columbia Clinic liable. Hansch, 190 Wash. at 97-98, 66 P.2d 1129. The Supreme Court held that although Dr. Hackett was not found negligent, the jury could have found that Dr. Clark or either of the two nurses were negligent; thus, the Columbia Clinic could be held liable under the doctrine of respondeat superior. Hansch, 190 Wash. at 101-02, 66 P.2d 1129. Hansch, however, was decided in 1937, before the legislature passed RCW 7.70.040.
¶ 27 Grove failed to prove the standard of care in this case, as he did not implicate a "health care provider" nor identify the relevant "profession or class" to which a particular duty was applicable. Grove thus failed to prove the standard of care as required by RCW 7.70.040. The trial court properly so ruled.
¶ 28 Grove further contends that the trial court erred by overturning the jury verdict, claiming that he sufficiently proved that a particular individual's negligence was the proximate cause of his injury. This is so,
¶ 29 Grove does not point to Dr. Leone's direct actions as the proximate cause of his injuries, especially as neither of Grove's experts could identify when the compartment syndrome developed. Rather, Grove contends that Dr. Leone was negligent in his role as the "leader" of the "team." Thus, in order to support a finding that Dr. Leone was negligent, Grove needed to demonstrate either that Dr. Leone negligently supervised the "team" or that the standard of care was that the team leader had a duty to instruct all of the staff to monitor for compartment syndrome. Grove does not allege that Dr. Leone was negligent in his supervision, nor can he, as Dr. Leone could not have supervised from the other side of the country. Further, neither of Grove's experts testified as to whether Dr. Leone should have left instructions before he left for New Jersey. To the contrary, Dr. Adams testified that Dr. Leone's responsibility ended when he turned over care of Grove to Dr. Zech.
¶ 30 Grove's assertion that Dr. Leone was liable as the "leader" of the "team" is merely an attempt to hold Dr. Leone vicariously liable for the actions of the other doctors and staff that treated Grove. Supervisors cannot be vicariously liable for the negligence of the employees whom they supervise. Harvey v. Snohomish County, 124 Wn.App. 806, 820, 103 P.3d 836 (2004), rev'd on other grounds, 157 Wn.2d 33, 134 P.3d 216 (2006); see also Van Hook, 64 Wash.App. at 365, 824 P.2d 509 (no vicarious liability of surgeon for nurses who assisted him, when surgeon did not control how nurses counted sponges). Dr. Leone was the supervisor, not the employer, of the "team." Unless Grove could show that Dr. Leone was independently liable, he cannot point to Dr. Leone as a specific individual for whom PeaceHealth may be held vicariously liable. This Grove has failed to do. Accordingly, PeaceHealth cannot be held liable for Dr. Leone's asserted liability resulting from his role as "leader" of the "team."
¶ 31 Affirmed.
We concur: SPEARMAN, A.C.J., and SCHINDLER, J.
Ripley v. Lanzer, 152 Wn.App. 296, 307, 215 P.3d 1020 (2009) (quoting Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003)). Grove does not allege that permanent damage resulting from compartment syndrome does not ordinarily happen in the absence of negligence. In fact, Grove concedes that compartment syndrome is a known complication from a long surgery. Accordingly, res ipsa loquitor is inapplicable here.