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Repin v. State

Court of Appeals of Washington, Division 3

March 21, 2017

ROBERT REPIN, Petitioner,
v.
STATE OF WASHINGTON; WASHINGTON STATE UNIVERSITY; AND MARGARET CHON-URBACH, BVSC; and DOES 1-10, Respondents.

          Fearing, C.J.

         Robert Repin sues Washington State University (WSU) and WSU veterinarian, Dr. Margaret Cohn-Urbach, for conduct arising from the euthanasia of his beloved Alaskan Malamute, Kaisa. Repin alleges that Cohn-Urbach, with gross negligence, performed the euthanasia and thereby caused Kaisa pain and prolonged her death. Cohn-Urbach also purportedly failed to fully inform him of the repercussions of the method of euthanasia. Repin pleads causes of action in breach of contract, reckless breach of contract, professional negligence, lack of informed consent/negligent misrepresentation by omission, intentional or reckless infliction of emotional distress, and conversion/trespass to chattels or trespass on the case. WSU and Cohn-Urbach moved for summary judgment to dismiss all claims. The trial court dismissed the lack of informed consent/negligent misrepresentation by omission, intentional and/or reckless infliction of emotional distress, conversion, and trespass claims. The trial court also ruled, as a matter of law, that Repin could not recover emotional distress damages for a reckless breach of contract. We affirm all of the trial court's rulings.

         FACTS

         Since the trial court granted WSU and Dr. Margaret Cohn-Urbach (collectively WSU) summary judgment in part, we recount the facts in a light favorable to Robert Repin. This factual statement occasionally, however, adds WSU's version of the facts.

         Plaintiff Robert Repin is a single man, with no children, who works as a gold prospector. In 2001, Repin adopted Kaisa, an Alaskan Malamute puppy, who his niece rescued. Kaisa grew to become an indispensable part of Repin's reclusive life.

         In September 2012, Kaisa fell ill. After a grim night, Robert Repin took Kaisa to an emergency veterinarian. The veterinarian diagnosed Kaisa with cancer and prescribed medication for her. Repin then transported Kaisa to Kaisa's regular veterinarian, who recommended a visit to the WSU Veterinary Teaching Hospital.

         On September 26, Robert Repin drove Kaisa from Cle Elum to Pullman and presented Kaisa to WSU's Veterinary Teaching Hospital. Jasmine Feist and another fourth-year veterinary student registered Kaisa with the hospital. Feist placed Kaisa in the intensive care unit and inserted a catheter in Kaisa's left front leg. Hours later, defendant Dr. Margaret Cohn-Urbach, an intern at the hospital, examined Kaisa. During this time, Repin remained with Kaisa.

         Following radiographs, Veterinary Teaching Hospital clinicians diagnosed Kaisa with metastatic cancer. Staff predicted Kaisa would live only several months. Robert Repin insisted on a consultation with an expert. Repin spoke, on the phone, with Dr. Kevin Choy, an oncologist, who agreed with the diagnosis of metastatic cancer. WSU veterinarians recommended euthanasia.

         After reflection, Robert Repin directed the Veterinary Teaching Hospital to euthanize Kaisa. Repin viewed the WSU hospital to be the best at veterinary medicine. He did not wish Kaisa to undergo weeks of agony.

         Robert Repin requested that he sign paperwork before the euthanasia because he did not trust his mental state after the procedure. He signed a Washington State University Veterinary Teaching Hospital consent for euthanasia form. The form read, in relevant part:

I, the undersigned, do hereby certify that I am the owner (or duly authorized agent of the owner) of the animal described above; that I hereby give the clinicians of the Washington State University Veterinary Teaching Hospital full and complete authority to humanely destroy the aforementioned animal. . . .
I hereby release the Washington State University Veterinary Teaching Hospital, their agents, and representatives, from any and all liability for said animal.

         Clerk's Papers (CP) at 126. Repin denies seeing the release language because of his distraught state of mind. No hospital employee discussed the language with him. Repin checked the form's box directing Kaisa's remains be returned to him rather than studied at the hospital. Repin paid $260.56 for the euthanasia.

         Robert Repin and a Veterinary Teaching Hospital attendant walked Kaisa from the intensive care unit to the euthanasia room, euphemistically labeled the quiet room. Dr. Margaret Cohn-Urbach then described the procedure to Repin. Cohn-Urbach advised that Kaisa would be administered a mild sedative to relax her and thereafter dispensed Euthasol, a drug that would stop the Malamute's heart and allow a peaceful death. According to Dr. Cohn-Urbach, she informed Robert Repin that, as Kaisa passes, she may have deep gasps, tremors, and other adverse effects. Repin claims Cohn-Urbach only warned that Kaisa might take a deep breath and exhibit a slight leg twitch.

         Robert Repin laid on the quiet room floor with Kaisa. Dr. Margaret Cohn-Urbach told Robert Repin the hospital procedure would commence. According to Margaret Cohn-Urbach and Jasmine Feist, Feist performed the euthanasia, while Cohn-Urbach supervised. Repin contends that Cohn-Urbach performed the procedure.

         According to Robert Repin, he heard Jasmine Feist exclaim: "[O]h, look, Kaisa has chewed off the end of her catheter, should I go get another one?" CP at 62. Margaret Cohn-Urbach responded: "[N]o. I will show you how to still make this one work." CP at 62. Repin did not look at the catheter and never observed Kaisa chewing the catheter. Feist and Cohn-Urbach deny any such conversation or Kaisa chewing the catheter.

         Robert Repin contends that no hospital staff member flushed the catheter to ensure patency, a medical term for open or unobstructed. Dr. Margaret Cohn-Urbach and Jasmine Feist both declare that one of them flushed 20 milliliters (ml) of saline solution through the catheter. Each avers that the saline flushed unimpeded and that she lacked any concern regarding patency.

         Kaisa slept on the quiet room floor when the veterinarians began the euthanasia. After the flushing, Either Dr. Margaret Cohn-Urbach or Jasmine Feist injected 1.1 ml of Acepromazine into the catheter. Five to ten minutes later, either Cohn-Urbach or Feist started the second injection. Repin turned from observing the injection. Repin describes the ensuing events:

[Kaisa] woke up screaming. She was on her feet panicking, screaming in agony. I said, What the fuck is going on here? I said, this can't fucking be happening. I had to wrestle [Kaisa] back to the floor. I had to hold her down and listen to her scream. [Dr. Cohn-Urbach] and [Feist] had backed up against the wall. They didn't know what the fuck to do. Jasmine said, My God, it's not working. What should we do, she says? My dog didn't know what the fuck was going on. She would have tore those girls apart if I let go of her. All she knew was she was in fucking pain and she wanted to get out of there and I had to hold her down.. . . [Feist] said somewhere, What do we do? Should I go get another catheter?
[Dr. Cohn-Urbach] says, I'm out of medication. I said, This can't be fucking happening.

CP at 67-68.

         According to Robert Repin, Dr. Margaret Cohn-Urbach left the quiet room and retrieved more Euthasol. Repin believes five to seven minutes passed between the two injections of Euthasol, during which time Kaisa constantly struggled on her two front feet, while Repin toiled to restrain her. Kaisa's agony never ceased. On Cohn-Urbach's return, Repin rolled Kaisa on her back to afford Cohn-Urbach a clear shot at her right forelimb. Jasmine Feist and Repin restrained Kaisa as Cohn-Urbach injected Euthasol into the right forelimb. Fifteen seconds later, Kaisa expired.

         According to Jasmine Feist, Kaisa lifted her head and upper torso and uttered one loud howl at the end of the first Euthasol injection. Kaisa did not scream in agony. Dr. Margaret Cohn-Urbach leaped to her feet and exited the quiet room. Robert Repin grabbed Kaisa around the neck and held her. Kaisa lay down and emitted large breaths. Kaisa died after she slouched. Feist estimates Dr. Cohn-Urbach left the room for up to two minutes.

         According to Dr. Margaret Cohn-Urbach, Kaisa uttered three howls and gazed at her left leg, which Jasmine Feist handled. Kaisa did not act violently or thrash. As Kaisa reacted, Cohn-Urbach observed Robert Repin's unhappiness. Dr. Cohn-Urbach decided to hurry the euthanasia. She left the quiet room for more Euthasol and returned within two minutes. Cohn-Urbach injected the Euthasol directly into the cephalic vein in Kaisa's right leg. As Dr. Cohn-Urbach administered the second dose of Euthasol, Kaisa howled again. After the second injection, Kaisa died.

         After Kaisa expired, Dr. Margaret Cohn-Urbach offered Robert Repin a trash bag for Kaisa's remains, a suggestion that offended Repin. Repin removed Kaisa on a gurney from the Veterinary Teaching Hospital to his car, while colorfully expressing displeasure.

         Dr. Margaret Cohn-Urbach wrote in her clinical notes concerning the euthanasia:

During the euthanasia procedure, Kaisa showed a reaction to the injection of 20ml of Euthasol through an 18G catheter in the left cephalic vein. The catheter was tested prior to injection of the Euthasol and we are confident that it flushed fine. Kaisa only reacted to the injection when the final 1ml was given, and showed no response while the first 19ml Euthasol and 1.1ml Acepromazine were given. As Kaisa was reacting to the injection, we used the right cephalic vein to inject and this was administered smoothly without delay. Kaisa again did show a reaction at the end of the injection of the 15ml Euthasol in the right cephalic vein, even though this was confirmed as definitely being in the vein. The left forelimb did not appear swollen after injection, suggesting that Kaisa may have reacted poorly to the euthanasia due to underlying intracranial and other disease. The owner expressed anger at the situation.

CP at 212-13.

         Dr. Harmon Rogers, a colleague of Dr. Margaret Cohn-Urbach, reported to a supervisor:

At the time of euthanasia the IV catheter looked questionable. Dr. Cohn-Urbach tested it several times and confirmed patency by flushing 20 mis of fluid through it. The euthanasia did not go smoothly and the dog cried out while being euthanized. That greatly upset the owner. It is possible that the euthanasia solution was perivascular. Dr. Cohn accessed another vein and completed the euthanasia. She was very apologetic to the owner about the circumstances. I wonder if her apologies increased the owner's dismay and made him believe she was more responsible for the difficulty than might be the case. He left very upset and swearing many times about how she had f d everything up.

CP at 131. "Perivascular" means tissue surrounding a blood vessel.

         In a declaration, Robert Repin affirmed that Dr. Margaret Cohn-Urbach never informed him of the risks of proceeding with a damaged catheter, the use of Acepromazine alone or at an inappropriate dosage, a fourth-year student injecting Euthasol, a high dose of Euthasol, or Kaisa responding to the procedure in distress. Had Cohn-Urbach informed Repin of the risks, he would not have consented to the procedure as performed at the Veterinary Teaching Hospital. He would have instead demanded a different catheter, a proper first medication, a dilution to the Euthasol, and all injections being performed by a licensed veterinarian.

         Robert Repin reports severe emotional distress resulting from the painful euthanasia of Kaisa. Repin now lacks patience, easily angers, suffers headaches, and drinks alcohol to sleep.

         Robert Repin hired Dr. Victoria Peterson, a licensed Washington veterinarian, as an expert witness. In a declaration opposing WSU's summary judgment motion, Peterson declared that veterinarians act in a fiduciary capacity of trust and confidence. She averred that she knows the standard of care of small animal veterinarians in the State of Washington. Peterson opined that:

Defendant Cohn-Urbach committed veterinary medical malpractice and breached the contract with Mr. Repin, proximately causing him economic and noneconomic damages. Indeed I find that her acts and omissions were cumulatively reckless and grossly negligent. In short, one does not euthanize a dog by injecting caustic solution outside the vein, causing her to experience tremendous fear and suffer agonizing pain for an extended duration while she is forcibly, physically restrained by the owner until the veterinarian can leave the room to obtain more euthanasia solution and return to administer it properly. That is not euthanasia. It is torturous to both the animal and her owner.

CP at 236.

         Dr. Victoria Peterson faulted Dr. Margaret Cohn-Urbach for administering Acepromazine precedent to Euthasol, because the former acts as a tranquilizer, rather than a sedative. A tranquilizer does not alter the dog's perception to the situation, but rather limits her ability to respond. Acepromazine may render the animal more excited, unpredictable, and dangerous. The small dose administered to Kaisa would not have sedated Kaisa or relieved her of any pain. According to Peterson, Margaret Cohn-Urbach was also grossly negligent for administering a large dose of Euthasol because of the age of Kaisa. The drug increased the risk of a geriatric dog's vein bursting such that the caustic solution travels perivascular. Euthanasia requires only 9 ml of Euthasol, but Cohn-Urbach's two injections amounted to 34 ml. Since Kaisa was an Arctic breed, Dr. Cohn-Urbach should have warned Robert Repin that Kaisa would whine and cry upon being euthanized. According to Peterson, Cohn-Urbach's treatment was not humane but led to minutes of conscious pain.

         Another of Robert Repin's experts, Dr. Bruce Goldberger, a forensic toxicologist, examined Kaisa's exhumed leg after the animal's death. Goldberger determined that the first injection of Euthasol entered Kaisa's perivascular region, a conclusion consistent with Victoria Peterson's conclusion that Kaisa suffered from the perivascular injection.

         PROCEDURE

         Robert Repin sues the State of Washington, WSU, and Margaret Cohn-Urbach. We assume that WSU and the State of Washington are the same legal entity. In the complaint, Repin asserts six claims: breach of contract, reckless breach of contract, professional negligence, lack of informed consent/negligent misrepresentation by omission, intentional and/or reckless infliction of emotional distress, conversion/trespass to chattels or trespass on the case. Repin requests reimbursement of amounts billed by WSU for services provided and his emotional distress and loss of enjoyment of life. In seeking emotional distress damages, Repin alleges that the "zone of danger" doctrine applies. CP at 7. We do not read the complaint as seeking any damages for pain suffered by Kaisa.

          The trial court granted, in part, WSU's motion for summary judgment. The trial court dismissed reckless breach of contract, lack of informed consent/negligent misrepresentation by omission, outrage, and conversion/trespass to chattels. The trial court also dismissed any claim for emotional distress damages no matter the cause of action pled. We granted discretionary review of the trial court's summary judgment rulings.

         LAW AND ANALYSIS

         Reckless Breach of Contract and Noneconomic Damages

         We find no case that recognizes a cause of action for reckless breach of contract distinct from a cause of action for breach of contract. We explore, however, whether the law may provide recovery for emotional distress or other noneconomic damages for a breach of contract under some circumstances, including egregious conduct of the breaching party. Robert Repin may allege reckless breach of contract in order to recover noneconomic damages. Repin may also allege reckless breach of contract in order to avoid the release contained in the euthanasia contract. WSU does not assert the defense of the release in support of its summary judgment motion.

         The trial court did not dismiss Robert Repin's breach of contract claim. Therefore, we do not address whether Repin maintains a viable claim in contract. We assume that Repin does not seek recovery for the value of Kaisa, since regardless of any professional negligence, Kaisa faced death. We address, however, whether Repin may recover noneconomic damages for the alleged breach of contract.

         Robert Repin contends that noneconomic damages should be recoverable when a veterinarian breaches, regardless of reckless conduct, a euthanasia contract because of the distressful nature of euthanasia. He emphasizes, however, that more reason exists to allow emotional distress damages on a reckless breach of a euthanasia contract. WSU responds that Washington courts have not recognized recovery of emotional distress damages for breach of a contract, even where emotional distress is foreseeable.

         In general, parties cannot recover noneconomic, emotional disturbance damages for breach of contract. RESTATEMENT (SECOND) OF CONTRACTS § 353 (Am. Law Inst. 1981); Gaglidari v. Denny's Restaurants, Inc., 117 Wn.2d 426, 440-48, 815 P.2d 1362 (1991). An exception arises if "the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result." RESTATEMENT (SECOND) OF CONTRACTS § 353. The comments explore this exception:

Common examples are contracts of carriers and innkeepers with passengers and guests, contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of messages concerning death. Breach of such a contract is particularly likely to cause serious emotional disturbance. Breach of other types of contracts, resulting for example in sudden impoverishment or bankruptcy, may by chance cause even more severe emotional disturbance, but, ...

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