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King v. Garfield County Public Hospital District No. 1

United States District Court, E.D. Washington

May 1, 2014

DENNIS KING and TRICIA KING, husband and wife, Plaintiff,
GARFIELD COUNTY PUBLIC HOSPITAL DISTRICT NO. 1, a municipal corporation, et al., Defendant

For Dennis King, Husband, Tricia King, Wife, Plaintiffs, Counter Defendants: Ronald A Van Wert, LEAD ATTORNEY, Jeffrey Ryan Galloway, Etter McMahon Lamberson Clary & Oreskovich PC, Spokane, WA.

For Garfield County Public Hospital District No 1, a municipal corporation, Susan Morrow, Wife, James D Morrow, Andrew Craigie, Husband, Barbara Craigie, Michele Beehler, Wife, Blaine Beehler, Defendants: Susan Wilder Troppmann, LEAD ATTORNEY, Andrea L Asan, Paukert & Troppmann PLLC, Spokane, WA.

For Terence Sean McGee, MD, Husband, Kim McGee, Defendants: Michael E McFarland, Jr, LEAD ATTORNEY, Markus William Louvier, Evans Craven & Lackie PS - SPO, Spokane, WA.

For OHS Health & Safety Services Inc, a California Corporation, Defendant: Edward Joseph Bruya, Keefe, Bowman & Bruya, P.S., Spokane, WA; Jason Matthew Lamb, Joseph Arthur Walker, PRO HAC VICE, The Walker Law Firm, Newport Beach, CA.

For Blaine Beehler, Barbara Craigie, Garfield County Public Hospital District No 1, a municipal corporation, Andrew Craigie, Husband, Michele Beehler, Wife, Counter Claimants: Susan Wilder Troppmann, LEAD ATTORNEY, Andrea L Asan, Paukert & Troppmann PLLC, Spokane, WA.



THOMAS O. RICE, United States District Judge.

BEFORE THE COURT are Defendant Terrence McGee, M.D., and Jane Doe McGee's Motion for Summary Judgment (ECF No. 60); and Defendants Garfield County Hospital District No. 1, Blaine Beehler, Michele Beehler, Andrew Craigie, and Barbara Craigie's Motion for Summary Judgment (ECF No. 70),[1] Motion to Strike Statement of Facts (ECF No. 86), Motion to Shorten Time to Hear Motion to Strike (ECF No. 97), and Motion to Expedite (ECF No. 96). This matter was heard with oral argument on April 16, 2014. Ronald Van Wert and Jeffrey Galloway appeared on behalf of the Plaintiff. Susan Troppman appeared on behalf of Defendants Craigie, Beehler, Morrow, and Garfield County Public Hospital District No. 1. Mark Louvier appeared on behalf of Defendant Dr. McGee. The Court has reviewed the briefing and the record and files herein, and is fully informed.


This case concerns a hospital employee's termination for alleged drug diversion and use after the employee tested positive in a drug test. Plaintiff Dennis King sued his former employer, Garfield County Hospital District No. 1 and hospital employees (collectively, " GCHD" ), as well as a company and physician allegedly involved in the drug test. GCHD and the physician here move for summary judgment on the claims against each.


Plaintiff Dennis King, a registered nurse, was employed with Defendant GCHD prior to the termination forming the basis for the instant lawsuit. Pl.'s Statement of Facts, ECF No. 73 at 2. At the time of the events in question, Defendant Andrew Craigie was the GCHD's Chief Executive Officer; Defendant Michele Beehler was Human Resources Director; Susan Morrow was Chief Nursing Officer; and Barbara DeHerrera was Long-Term Care Manager and King's direct supervisor. Id. at 3.

On February 1, 2011, a Tuesday, King had a tooth extracted, which resulted in a painful bone spur for which his dentist prescribed Tylenol #3 with codeine. ECF No. 73 at 4; King Depo. at 36:9-11. The prescription dosage was 300 milligrams of acetaminophen and 30 milligrams of codeine; the prescription indicated that King could " take 1 or 2 tablets by mouth every 4-6 hours as needed for pain." ECF No. 73-6; Pl.'s Statement of Facts, ECF No. 73 at 5.

King worked a 12-hour weekend day shift, making his regularly scheduled working days Saturday, Sunday, and Monday, starting at 7 a.m. ECF No. 73 at 4. He worked his regularly scheduled shifts on February 5, 6 and 7. Pl.'s Statement of Facts, ECF No. 73 at 5; King Depo. at 41:12-15.

Medications dispensed to GCHD patients are documented in the " medication administration report." Pl.'s Statement of Facts, ECF No. 73 at 6; King Depo. at 48:15-24. Procedure dictated that when staff members administering medication would pull the dose from the locked medication cart or cabinet, they would record the amount that should be remaining after the dose was removed. King Depo. 47:1-47:24, ECF No. 68-1 at 13. The staff member signs the medical administration record. King Depo. 48:23-48:24, ECF No. 68-1 at 14. Nurses also perform a narcotic count at the end of each shift and sign to indicate who is responsible for the count. Morrow Depo. 61:16-61:24, ECF No. 68-3 at 8.

During his shifts on February 5 and 6, King gave four doses of morphine each day; on February 7, he administered one dose. King Depo. 55:18-56:3, ECF No. 68-1 at 16-17. King's last signature on the morphine sulphate log is for February 7 at 8 a.m. Morrow Depo. 48:5-48:11, ECF No. 73-2 at 18. Another staff member, Ms. Jilek, signed out morphine sulphate doses at 8 p.m. and 11:15 p.m. on February 7, and at 2 a.m. and 5:15 a.m. on February 8. Morrow Depo. 50:14-51:12, ECF No. 73-2 at 19-20. At the end of his shift on February 7, at 7:30 p.m., King's signature appears on the narcotic count log. King Depo. 56:3-57:19, ECF No. 68-1 at 17-18.

The next day at 7 a.m., another nurse, Ms. Bell, notified King's supervisor Barbara DeHerrera that there was a discrepancy; DeHerrera then notified Morrow. Morrow Depo. 66:12-66:22, ECF No. 68-3 at 9. Bell had discovered a 19 milliliter overage in the morphine sulphate bottle; the doses accounted for indicated that the remaining medication should be 15 milliliters, but the actual amount in the bottle of morphine was 34 milliliters. Morrow Depo 55: 23-56:6, ECF No. 62-2 at 7.

GCHD did not test the morphine to determine whether it had been diluted; rather, the bottle of morphine was returned to the manufacturer, where it was destroyed. Morrow Depo. 56:18-56:25, 57:22-57:23, ECF No. 62-2 at 7.

After his shift ended on February 8, King was not scheduled to work for several more days. On February 8, 9, and 10, King ingested between two and four tablets of Tylenol #3 with codeine each day. Pl.'s Statement of Facts, ECF No. 73 at 9. He received a call on the evening of February 10 informing him that a mandatory meeting would take place at GCHD the next day. Id. On February 11, a scheduled day off for King, King took one tablet of Tylenol #3 with codeine before attending the mandatory meeting. Id. at 9-10.

When King arrived at GCHD he was informed that the mandatory meeting was a drug test and the employees were required to submit a urine sample for analysis. Id. Morrow informed the employees that the drug testing was in response to a discrepancy in the narcotic count. Morrow Depo. 77:19-78:11, ECF No. 73-2 at 32-33. Morrow indicated that King showed no signs of drug use or impairment. Morrow Depo. 79:20-82:9, ECF No. 73-2 at 34-36.

The drug test was conducted by QCL, Inc. Pl.'s Statement of Facts, ECF No. 73 at 13. QCL contracted with OHS Health & Safety Services for medical review officer professional services. See Exhibit 11, ECF No. 73-11 at 2. Defendant Dr. Terrence McGee was the medical review officer responsible for interpreting the test results, and interpreted King's test results. Morrow Depo. 19:9-13, ECF No. 62-2 at 4; Exhibit 11, ECF No. 73-11 at 5; Pl.'s Statement of Facts, ECF No. 73 at 15.

On February 18, Morrow called King and informed him that the test results had shown that his morphine levels were very high, that he was being put on leave, that he could not come into work, and that there would be a meeting on February 22 to discuss. King Depo. 88:3-88:23, ECF No. 68-2 at 1. King requested that Dr. McGee be present at the meeting. Pl.'s Statement of Facts, ECF No. 73 at 17.

During the February 22 meeting, Beehler, DeHerrera and Morrow were present from GCHD, and Dr. McGee appeared telephonically. Pl.'s Statement of Facts, ECF No. 73 at 17. King brought the prescription bottle containing his remaining tablets of Tylenol #3 with codeine. Pl.'s Statement of Facts, ECF No. 73 at 18. Though disputed, King states that Dr. McGee told him that his urinalysis produced near fatal levels of morphine and contained a trace of codeine. Pl.'s Statement of Facts, 3ECF No. 73 at 19. King told Dr. ㇁ that he had taken a tablet of Tylenol #3 on the morning of the drug test. Pl.'s Statement of Facts, ECF No. 73 at 19. King claims that Dr. McGee never asked him how many doses he had taken. Pl.'s Statement of Facts, ECF No. 73 at 19-20. At the time of the meeting, Dr. McGee does not appear to have submitted a report with the results of King's urinalysis.

A February 25, 2011 report from OHS, signed by Dr. McGee, indicates King's urinalysis test as negative. Pl.'s Statement of Facts, ECF No. 73 at 21. McGee claims this was signed (with a stamp) and sent without his authority. Pl.'s Statement of Facts, ECF No. 73 at 21. On February 28, 2011, Dr. McGee wrote and email that was sent on to Morrow stating that

While the Rx explains the presence of the drugs...the levels are in my opinion likely abusive DOT type testing an opiate level above 15,000 ng/mL shifts the burden of proof from the doctor to the donor. Mr. King needs to provide some reasonable explanation for these levels.

Exhibit 18, ECF No. 73-18 (emphasis in original).

Codeine metabolizes into morphine. Richard Barclay, Ph.D Depo., ECF No. 73-13 at 3. Plaintiffs' expert testified that the results of King's drug test were not consistent with the use of morphine suspected to be diverted from the hospital because the codeine and morphine ratio was much higher than would be expected had morphine been used in addition. Id. at 3. The expert stated that " the amount of codeine and morphine found in that sample taken on that morning [of the drug test administered by GCHD] is a result of multiple doses and sequential doses of codeine, not from a single tablet." Id. at 6. He also testified that Dr. McGee's finding that King's dose was " near fatal" was " way out of line." Id. at 5.

GCHD terminated King March 29, 2011. Exhibit 25, ECF No. 73-25. The termination letter informed King that his " termination is the result of failure to comply with section 3.16 of the employee handbook Substance Abuse and Testing." Id. The letter further provided that " The reasonable suspicion test was performed on 2/11/11 was found to have positive test results for Opiates of Codeine and Morphine." Id.

An unemployment benefits hearing was conducted on June 22, 2011. Pl.'s Statement of Facts, ECF No. 73 at 26, 31. For the hearing, Dale Tuvey on behalf of GCHD submitted a response to King's request for benefits, in which he stated that

We believe that the most likely explanation of what happened here and that is consistent with all the evidence in this case is that Mr. King did indeed take morphine from the bottle used for the patient for whom he cared, and that he did have high levels of morphine in his system that could only be explained by his having taken high levels of morphine, certainly more than contained in one Tylenol 3 tablet. The " near fatal" levels in his urine as described by Dr. McGee could only have been found in someone taking large quantities of the drug, possibly over a significant period of time.

ECF No. 73-30.

Under GCHD's drug policy set forth in its employee handbook,

Employees are prohibited from the illegal use, sale, dispensing, distribution, possession, or manufacture of illegal drugs, controlled substances, narcotics, or alcoholic beverages on GCHD premises or work sites, in addition, GCHD prohibits the off-premise abuse of alcohol and controlled substances as well as the possession, use, or sale of illegal drugs, when those activities adversely affect job performance, job safety or GCHD's reputation in the community.

ECF No. 66-1 at 7. The policy further provides:

Reasonable suspicion testing: Employees shall submit to a drug and/or alcohol test when the employer reasonably suspects that this Policy may have been or is presently being violated. A referral for testing will be based on current, clearly described observations. Such referrals will be made by management/supervisory personnel of an employee showing signs and symptoms of drug and alcohol use and confirmed by a second supervisor or manager. When reasonable suspicion exists, the affected employee will be questioned and observed. A decision to request a specimen will be based on eyewitness reports, facts of the event and observed physical and behavioral characteristics of the affected employee. The employee will be interviewed in a private area.

ECF No. 66-1 at 10.

Positive test results: If the result of a drug or alcohol test under this policy is positive, the test will be reviewed by a physician/provider who will determine if the positive test I s the result of the employee's legitimate and authorized prescription medication. The physician/provider will notify the employee and the employer of his/her finding in writing. If the positive test is determined to be the result of a legitimate and authorized prescribed medication, it is not the intention of the employer to request specific information about the prescription unless it is likely that the effects of the medication would compromise safety in the workplace.

ECF No. 66-1 at 11.


A. Legal Standard

Summary judgment may be granted to a moving party who demonstrates " that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to identify specific genuine issues of material fact which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

For purposes of summary judgment, a fact is " material" if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute concerning any such fact is " genuine" only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling upon a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Only evidence which would be admissible at trial may be considered. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002).

B. Defendant McGee's Motion for Summary Judgment (ECF No. 60)

Defendant McGee moves for summary judgment dismissal of the claims against him, arguing that he did not owe a legal duty to Mr. King, nor was any duty allegedly breached. ECF No. 60 at 4. He also contends that Plaintiffs lack the requisite expert witness testimony causally relating any injuries to Dr. McGee's alleged negligence. ECF No. 60 at 9.

1. Whether Dr. McGee Owed a Legal Duty to Plaintiffs

Defendant Dr. McGee contends that Plaintiffs alleged a health care negligence cause of action against him under RCW 7.70, et seq., because they allege that he negligently performed the drug testing, analysis and interpretation. ECF No. 60 at 4. Defendant contends that under this standard, Plaintiffs' claim fails because Dr. McGee did not owe Mr. King a duty of care because he did not injure him or fail to warn him of an injury; Defendant contends that his only duty is to properly report to GCHD. ECF No. 60 at 4-8. Plaintiffs counter that Dr. McGee's liability to King is based on common law negligence, not medical negligence. ECF No. 75 at 3. Plaintiffs contend that whether a duty exists at common law depends on the foreseeability of the risk created. Id.

The question before the Court, then, is what standard applies when an employee alleges that a medical review officer negligently interpreted results of a drug test administered by an employer, resulting in the employee's termination. No Washington case directly addresses this issue. The Court accordingly turns, as it must, to the language of the statute. The Washington statute on actions for injuries resulting from health care sweeps broadly:

The state of Washington, exercising its police and sovereign power, hereby modifies as set forth in this chapter and in RCW 4.16.350, as now or hereafter amended, 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). Thus, " whenever an injury occurs as a result of health care, the action for damages for that injury is governed exclusively by RCW 7.70." Branom v. State, 94 Wash.App. 964, 969, 974 P.2d 335 (1999). However, " [s]tatutes such as the medical malpractice act that are in derogation of the common law[] must be construed narrowly." Sherman v. Kissinger, 146 Wash.App. 855, 865-66, 195 P.3d 539 (2008). In determining the scope of the phrase " health care," Washington courts have construed it to mean " the process in which [a physician is] utilizing the skills which he had been taught in examining, diagnosing, treating or caring for the plaintiff as his patient." Branom, 94 Wash.App. at 969-70.

Defendant contends that case law mandates applicability of the medical negligence statute, citing Eelbode v. Chec Medical Centers, Inc., 97 Wash.App. 462, 984 P.2d 436 (1999), and Daly v. United States, 946 F.2d 1467 (9th Cir. 1991). The Court disagrees, as both cases are distinguishable from the instant factual scenario. See Daly, 946 F.2d 1467 (holding that a radiologist interpreting an x-ray from a pre-employment physical at the behest of an employer had a duty to inform the applicant of an abnormality in the lung, despite the fact that there was no physician-patient relationship); and Eelbode, 97 Wash.App. 462, 984 P.2d 436 (holding that physical therapist performing pre-employment health exam owed a duty of care for injuries incurred during the course of the exam). In these cases, where the court found liability under RCW 7.70, et seq., the question centered on the relationship between the health care provider and the plaintiff; the provision of health care--in interpreting x-rays that found a lung mass, and determining if an employee was physically capable of performing her job, for example--did not appear to be in dispute.

Here, in contrast, there is no suggestion that Dr. McGee provided any health care to King. Rather, the undisputed evidence indicates that Dr. McGee worked for a company (OHS) that was engaged by another company (QCL) that was engaged by King's employer (GCHD) to interpret --from California--the results of a drug test from a nurse in rural Washington State. Neither party has suggested that Dr. McGee diagnosed or treated King, or had reason to know of King's health status other than as related to a single urinalysis solely intended to identify drug use. Under its plain language, the statute applies to " causes of action...for damages for injury occurring as a result of health care...." See RCW 7.70.010. This definitional application of the term " health care" is supported in other cases. See Hines v. Todd Pac. Shipyards Corp., 127 Wash.App. 356, 374, 112 P.3d 522 (2005) (" It is undisputed that the purpose of the drug screening test was not health care or medical treatment," in the context of the Health Care Disclosure Act, RCW 70.02 ).[2] For these reasons, RCW 7.70 does not apply in this instance.

The Court next considers common law negligence. Under general negligence principles, " A duty of care is necessarily limited to the level of care that is reasonable in the particular circumstances." Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wash.2d 442, 455, 243 P.3d 521 (2010). Washington courts have held that, for example, " the measure of reasonable care for an engineer undertaking engineering services is the degree of care, skill, and learning expected of a reasonably prudent engineer in the state of Washington acting in the same or similar circumstances." Id. Here, a similar standard is appropriate: the measure of reasonable care for an interpreter of drug tests is the degree of care, skill, and learning expected of a reasonably prudent drug test interpreter in the State of Washington acting under the same or similar circumstances.

Here, the Court finds that there is a question of material fact as to whether Dr. McGee was negligent. Plaintiffs point out that, in the meeting to discuss urinalysis results, Dr. McGee told GCHD that King had near-fatal morphine levels. King Depo. at 99:21-22, ECF No. 73-5 at 25. However, Plaintiffs' medical review officer indicates that " one cannot determine the drug dose based on the urine concentration from a workplace test result." ECF No. 73-14 at 6. Plaintiffs' MRO also indicated that Dr. McGee, if following standard procedure, should have taken into account the valid, recent prescription for Tylenol with codeine. Id. Thus, there is at least a question of fact as to whether Dr. McGee breached his duty to Plaintiff.

Defendant next argues that Plaintiff's negligence claim against Dr. McGee fails for want of proximate cause. ECF No. 87 at 8. Defendant contends that Plaintiffs' theory that King was terminated as a result of Dr. McGee's pronouncement that the drug test was positive fails because Dr. McGee did not have the authority to terminate King and GCHD was free to disregard Dr. McGee's analysis. Id. at 10. Defendant contends that King alleges that if he had been given a Loudermill or name-clearing hearing, he would not have been terminated. Id.

First, the Court disagrees with Defendant's reading of Plaintiffs' complaint. Plaintiffs do not give up a claim that Dr. McGee's negligence resulted in King's termination simply because they claim that King was constitutionally entitled to a name-clearing hearing. Those two arguments are not mutually exclusive. Even if Dr. McGee interpreted the urinalysis without any negligence, King's constitutional rights with respect to his public employer are not affected.

Legal causation " rests on policy considerations as to how far the consequences of defendant's acts should extend. It involves a determination of whether liability should attach as a matter of law given the existence of cause in fact." Hartley v. State, 103 Wash.2d 768, 779, 698 P.2d 77 (1985) (emphasis in original). This is a question of law to be decided by the court rather than by a jury. Colbert v. Moomba Sports, Inc., 163 Wash.2d 43, 51, 176 P.3d 497 (2008). The primary focus of the legal causation analysis " is whether, as a matter of public policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability." Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 611, 257 P.3d 532 (2011) (quotation and citation omitted). This inquiry " depends upon mixed considerations of logic, common sense, justice, policy and precedent." Kim v. Budget Rent A Car Sys., Inc., 143 Wash.2d 190, 204, 15 P.3d 1283 (2001) (quotations and citations omitted).

Common sense dictates that a medical review officer's misreporting of drug test results could have serious consequences for the employee's continued employment. Such a result is not too remote or insubstantial to impose liability. Dr. McGee interpreted the urinalysis as part of an employer's testing of an employee. That the employee could lose his job as a result of a negligently performed ...

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