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Kim v. Lakeside Adult Family Home

Court of Appeals of Washington, Division 1

March 16, 2015

Esther Kim, as Personal Representative, et al., Appellants
v.
Lakeside Adult Family Home et al., Defendants, Alpha Nursing and Services Inc. et al., Respondents

Page 851

Superior Court County: Snohomish. Superior Court Cause No: 12-2-02012-2. Superior Court Judge Signing: George F.B. Appel (1 & 2), Richard T. Okrent. Date filed in Superior Court: July 16, 2013 (1), August 2, 2013 (2), May 1, 2013 (cross-appeal).

Sidney C. Tribe and Philip A. Talmadge (of Talmadge / Fitzpatrick / Tribe ); and James F. Gooding, Alex French, and Scott F. Lundberg (of Graham Lundberg Peschel PS Inc. ), for appellants.

William F. Knowles and Robert L. Bowman (of Cozen O'Connor ), for respondents.

Written by: Trickey, J. Concurred by: Verellen, A.C.J.; Dwyer, J.

OPINION

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Trickey, J.

[186 Wn.App. 402] [¶1] 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(1). 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(3). 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.

[¶2] 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.

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

[¶4] We affirm the trial court.

FACTS

[¶5] Ho Im Bae was one of four inpatient residents at Lakeside Adult Family Home. Lakeside was owned and operated by Gretchen Dhaliwal Inc.

[¶6] Bae was admitted to Lakeside on January 23, 2009, suffering from Parkinson's disease, 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.

[¶7] Lakeside employed Fannie Irawati as a caregiver for Bae during this time. Two employees of Alpha Nursing and Services Inc., Christine Thomas, registered nurse (RN), and Marian Binondo, licensed practical nurse, provided nursing [186 Wn.App. 403] 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]

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[¶8] 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.

[¶9] 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.

[¶10] 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 [186 Wn.App. 404] her feet were sliding on the floor." [2] Thomas did not observe any bruising or injuries.

[¶11] 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 hot line) 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.

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

[¶13] 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.

[¶14] 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.

[¶15] 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 [186 Wn.App. 405] action. Thomas cross appeals the trial court's ruling that service on her in Norway was proper.

ANALYSIS

I. Service on Thomas

[¶16] 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 codefendants tolls the statutes of limitations as to unserved defendants. Powers v. W.B. Mobile Servs., Inc., 182 Wn.2d 159, 164, 339 P.3d 173 (2014);

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RCW 4.16.170. There is no dispute that Alpha, the codefendant, was timely served. Thus, service on Thomas was timely.

[¶17] 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, 20. U.S.T. 361, 658 U.N.T.S. 163 (hereinafter Hague Convention). Because Thomas was a Norwegian citizen living in Norway at the time of ...


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