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Kim v. Lakeside Adult Family Home

Court of Appeals of Washington, Division 1

February 17, 2015

ESTHER KIM, as Personal Representative of the Estate of HO JM BAE on behalf of Mi-Soon Kim, Jae C. Kim, Chang Soon Kim, Jae Hong Kim, and Kyoung Soon Kim, surviving family members, and the ESTATE OF HO IM BAE, Appellants/Cross-Respondents,
v.
LAKESIDE ADULT FAMILY HOME, GRETCHEN DHALIWAL INCORPORATION (G.D., INC.), a Washington Corporation d/b/a LAKESIDE AFH, GRETCHEN DHALIWAL, individually, Defendants, ALPHA NURSING AND SERVICES INCORPORATED, a Washington Corporation; Respondent, CHRISTINE THOMAS, individually, Respondent/Cross-Appellant, and JANE AND JOHN DOES

TRICKEY, J.

The Washington vulnerable adult protection act, chapter 74.34 RCW, requires mandated reporters to notify the Department of Social and Health Services (DSHS) where there is "reasonable cause to believe" that abuse has occurred. RCW 74.34.035. The act also requires a report to law enforcement when one has "reason to suspect" that a physical assault has taken place. RCW 74.34.035. Here, the defendant, a nurse, informed DSHS about a report that she had received regarding potential abuse at the adult family home. There was no duty to call law enforcement about someone else's patient when the information came from a person with whom the defendant was familiar and whose reliability was questionable.

Nor did the plaintiff establish that a second nurse had a duty to call authorities when she observed the patient back in bed, with her eyes open, and able to move her legs, after a fall on the floor the day before.

Because the plaintiff has failed to establish any duty, a necessary element of a negligence action, summary judgment dismissal was appropriate.

We affirm the trial court.

FACTS

Ho Im Bae (Bae) was one of four inpatient residents at Lakeside Adult Family Home (Lakeside). Lakeside was owned and operated by Gretchen Dhaliwal, Inc.

Bae was admitted to Lakeside on January 23, 2009, suffering from Parkinson's, arthritis, dementia, hypertension, hyperlipidemia, and spinal stenosis. She died less than three months later on March 30 from acute morphine intoxication. Morphine was not a prescribed drug for Bae. Her death was ruled a homicide.

Lakeside employed Fannie Irawati as a caregiver for Bae during this time. Two employees of Alpha Nursing and Services, Inc. (Alpha), Christine Thomas, Registered Nurse (RN), and Marian Binondo, Licensed Practical Nurse (LPN), provided nursing care to two of the four residents at Lakeside, but did not provide nursing services for Bae. Binondo filled in for the regularly assigned Thomas on weekends and vacation days in March 2009.[1]

Binondo was in the kitchen at Lakeside with Kerri Salzbrun, her patient, when she heard a "thud" from the adjacent room. Salzbrun entered the adjacent room and Binondo followed. Binondo saw Bae lying on the floor near her bed. Binondo told Irawati that Irawati might need to call 911 and that Bae might need further assessment by her nurse. Irawati returned Bae to her bed and told Binondo that Bae falls a lot, but that she would call Dhaliwal, an RN and the owner of Lakeside, who lived across the street from the home. Binondo saw that Bae's eyes were open and she was able to move her legs. She did not observe any bruising at the time. As she left the facility, Binondo saw Irawati on the telephone.

Salzbrun asserted in her declaration that she observed a knot on Bae's head. Over the next day or two, the knot appeared larger and Bae's face was covered in a large bruise.

On March 30, the morning of Bae's death, Thomas resumed her regular rounds at Lakeside, visiting her patients. Salzbrun told Thomas that Bae was being given morphine. Thomas checked the medical records located in the kitchen. From there, she saw Bae, unable to walk, being taken to the bathroom to be washed. Irawati "held her under her arms and walked backwards pulling her while her feet were sliding on the floor."[2] Thomas did not observe any bruising or injuries.

Shortly after leaving Lakeside, at approximately 10:00 a.m., concerned about the allegation of morphine, Thomas called the DSHS Complaint Resolution Unit (1-800-END-HARM hotline) to report her observations and the concerns Salzbrun had expressed to her about Bae. The phone was busy. She called again at 11:30 a.m. and left a voice mail message as instructed.

That same night, Salzbrun found Bae unresponsive and called 911. Bae's death from acute morphine intoxication was subsequently ruled a homicide.

On April 1, both Binondo and Thomas were at Alpha's office. Thomas related her concerns about Bae to Binondo. Binondo, recalling the fall that had occurred when she was there, thought the patient might well have been the same one. The supervisor recommended that Binondo report the incident to DSHS in light of Thomas's recent information. Binondo placed a call and left a voice mail message describing her observations.

Esther Kim as Personal Representative of Bae's estate brought this civil action for damages against Lakeside and Dhaliwal. In 2012, she added Alpha and Thomas asserting a claim for negligence for failure to report Bae's abuse under Washington's vulnerable adult protection act, chapter 74.34 RCW.

The parties stipulated to dismissal of all claims against Lakeside, and Dhaliwal individually. Thomas moved to dismiss the action against her for improper service. Alpha moved to dismiss the action on summary judgment. The trial court ruled service on Thomas was timely and proper and later dismissed the suit on summary judgment. The trial court also denied Kim's motion for reconsideration. Kim appeals the summary judgment dismissal of her action. Thomas cross-appeals the trial court's ruling that service on her in Norway was proper.

ANALYSIS

I. Service on Thomas

Thomas first contends the trial court erred in not dismissing the action against her because such service was untimely. Service on one of two or more co-defendants tolls the statutes of limitations as to unserved defendants. Powers v. W.B. Mobile Servs., Inc., ___ Wn.2d ___, 339 P.3d 173, 176 (2014); RCW 4.16.170. There is no dispute that Alpha, the co-defendant, was timely served. Thus, service on Thomas was timely.

Thomas next argues that service was invalid because it failed to comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, T.I.A.S. No. 6638, 20. U.S.T. 361 (hereinafter Hague Convention). Because Thomas was a Norwegian citizen, living in Norway at the time of service, Kim was obligated to serve her under the requirements of the Hague Convention.

Under the supremacy clause, United States Constitution, article VI, the "Hague Convention preempts inconsistent methods of service prescribed by state law in all cases to which [t]he Hague Convention applies." Broad v. Mannesmann Anlaaenbau. A.G.. 141 Wn.2d 670, 674-75, 10 P.3d 371 (2000). Article 1 of the Hague Convention provides that it applies "'in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.'" Broad, 141 Wn.2d at 678 (quoting Hague Convention, art. 1).

The Hague Convention specifies that "the Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency ... by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory." Hague Convention, art. 4(a). Thus, service on Thomas would be effective if it was accomplished in accordance with Norwegian law.

Further, the Hague Convention "allows service to be effected without utilizing the Central Authority as long as the nation receiving service has not objected to the method used." DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 288 (3rd Cir. 1981); see also Restatement (third) of Foreign Relations law of the United States ยง 471 cmt. e (1987) ("for states that have objected to all ...


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