No. 20524-0-IIIThe Court of Appeals of Washington, Division Three. Panel Four.
Filed: November 21, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Benton County, No. 89-2-01390-5, Hon. Craig J. Matheson, September 26, 2001, Judgment or order under review.
Counsel for Appellant(s), David B. Koch, Nielsen Broman Koch Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), David D. Tewell, Tewell Findlay, 1511 3rd Ave Ste 1020, Seattle, WA 98101-3635.
KATO, A.C.J.
Margaret Willingham, individually and as personal representative of the estate of her son, Robert Willingham, brought suit against Mid-Columbia Mental Health Center for damages resulting from medical malpractice. She claims her son’s suicide was the result of its negligence. Determining that Mid-Columbia’s alleged negligence was not the proximate cause of Robert’s suicide, the court granted summary judgment dismissal. Ms. Willingham appeals. We reverse. Robert Willingham, born June 13, 1970, lived in Walla Walla with his mother. In January 1986, he moved to Kentucky to live with his father. In October, he called his mother and told her that his father had given him permission to commit suicide so he wanted her permission as well. He had climbed a water tower and intended to jump, but did not because he was afraid he would not succeed in killing himself and become a `vegetable.’ Clerk’s Papers (CP) at 338. Ms. Willingham went to Kentucky and brought Robert back to Walla Walla.
Over the next few weeks, Robert continued to have difficulties. Ms. Willingham and Robert had a confrontation and he left. Fearing he would take his own life, Ms. Willingham contacted the police. A mental health specialist got involved and Robert was voluntarily admitted to St. Mary’s Medical Center.
On November 26, three days after his admission to St. Mary’s, Robert was transferred to Mid-Columbia Mental Health Center in Richland for a complete adolescent psychiatric evaluation. Upon admission, Robert was diagnosed with “Major Depressive Episode R/O Intellectual Impairment.” CP at 278. Robert stayed at Mid-Columbia for three weeks. The director of his unit was Sally McCallum. His case manager was Sandra Caggiano, a registered nurse. Dr. Bruce Duthie, a psychologist on contract with Mid-Columbia, conducted several tests. Dr. Daryl C. Taylor was the attending psychiatrist at the facility.
Dr. Duthie concluded that Robert had some sexual identity issues and was prone to be sexually aggressive. The doctor also concluded Robert suffered from depression and feared he might take his own life. He recommended that Robert be placed in as restrictive an environment as possible.
Dr. Taylor prepared Mid-Columbia’s discharge summary, which reflected a diagnosis that Robert had “Conduct Disorder, Undersocialized, Aggressive, Paranoid, and Borderline and Antisocial Traits.” CP at 268. Upon discharge, Dr. Taylor recommended that Robert continue treatment at Intermountain Hospital in Boise, Idaho.
Robert was discharged from Mid-Columbia in December 1986, when Ms. Caggiano told Ms. Willingham that Robert was not depressed. Dr. Duthie’s concerns to the contrary were not shared with Ms. Willingham. Ms. Caggiano said Robert had a low IQ, appeared aggressive, was a woman hater, and was a potential child molester and rapist. Ms. Willingham was shocked. Ms. Caggiano asked her if she would send Robert to Intermountain, which she described as a boys’ group home that would offer structure. Ms. Willingham spoke to Robert, who told her he was willing to go. They drove to Boise from Mid-Columbia.
Ms. Willingham and Robert arrived at Intermountain around 11:00 p.m., but he was not able to check in at that time. Several hours later, Ms. Willingham and her son left to return home. She was confused about Robert’s diagnosis and was uncertain what was best for him. She did not believe Robert was suicidal. She also did not inform anyone at Mid-Columbia about her decision not to have Robert admitted at Intermountain.
On February 23, 1987, Robert left the Willingham house and did not return. Ms. Willingham did not look for Robert or contact the police for a week. On March 2, she filed a missing person’s report with the sheriff’s office. Robert was found dead later that day. He was found close to the house. The coroner told Ms. Willingham that Robert had been dead for only two days.
On December 5, 1989, Ms. Willingham, individually and as personal representative of her son’s estate, sued Mid-Columbia, Dr. Duthie, and Dr. Taylor for damages from malpractice resulting in Robert’s suicide. Claiming their respective conduct was not the proximate cause of death, Drs. Duthie and Taylor moved for summary judgment. The court granted summary judgment to the doctors. This court upheld the decision in an unpublished opinion. In re Estate of Willingham, noted at 68 Wn. App. 1023 (1992).
Thereafter, Mid-Columbia moved for summary judgment. It argued that any negligence on its part was not the proximate cause of Robert’s suicide.
The trial court determined Ms. Willingham’s conduct was a superseding cause and there was no evidence that Mid-Columbia’s actions, or those of its staff, proximately caused Robert’s death. This appeal follows. Ms. Willingham claims the court erred by granting summary judgment dismissal of her claims against Mid-Columbia. We review a summary judgment de novo, viewing the evidence and all reasonable inferences from that evidence in the light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). The moving party has the initial burden of demonstrating an absence of any genuine issue of material fact, entitling it to judgment as a matter of law. Id. The burden then shifts to the nonmoving party to set forth specific facts showing a genuine issue of material fact for trial. Id.
Ms. Willingham sued Mid-Columbia for medical negligence. To make a prima facie case of medical negligence, the plaintiff must show duty, breach, causation, and damages. Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984). The only element at issue here is causation.
If a reasonable person could infer from the facts, circumstances, and medical testimony that a causal connection exists between the medical care provided and the damages complained of, the evidence is sufficient to survive summary judgment. Douglas v. Freeman, 117 Wn.2d 242, 252, 814 P.2d 1160 (1991). The plaintiff need not establish causation by direct and positive evidence if the ultimate fact required is a reasonable and natural inference from the chain of circumstances presented. Attwood v. Albertson’s Food Ctrs., Inc., 92 Wn. App. 326, 331, 966 P.2d 351 (1998). But the evidence establishing proximate cause must rise above speculation, conjecture, or mere possibility. Reese v. Stroh, 128 Wn.2d 300, 309, 907 P.2d 282 (1995).
Mid-Columbia argued that even if it were negligent, Ms. Willingham’s failure to admit Robert to the hospital in Boise and her failure to immediately search for him when he did not return home were superseding, intervening causes that broke the chain of causation. Mid-Columbia contends that Ms. Willingham’s actions relieved it of any liability associated with its negligence. “Whether an act may be considered a superseding cause sufficient to relieve a defendant of liability depends on whether the intervening act can reasonably be foreseen by the defendant; only intervening acts which are not reasonably foreseeable are deemed superseding causes.” Crowe v. Gaston, 134 Wn.2d 509, 519, 951 P.2d 1118 (1998) (quoting Cramer v. Dep’t of Highways, 73 Wn. App. 516, 520, 870 P.2d 999 (1994)). In determining if an intervening act is a superseding cause, a court must consider whether (1) the intervening act created a different type of harm; (2) the intervening act constituted an extraordinary act; and (3) the intervening act operated independently. Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 812-13, 733 P.2d 969 (1987). The foreseeability of an intervening act, unlike the determination of legal cause in general, is ordinarily a factual inquiry. Crowe, 134 Wn.2d at 520.
Ms. Willingham’s actions and the negligence of Mid-Columbia arguably created the same type of harm, that is, Robert’s death. However, the answer to the question whether Ms. Willingham’s actions were foreseeable or extraordinary is less than clear. Under the circumstances, reasonable minds could differ on whether her decision not to admit Robert to the hospital in Boise was unforeseeable or extraordinary. Likewise, reasonable minds could differ on if her failure to immediately look for him after he left and did not return to the home was foreseeable or extraordinary. Moreover, her actions were not independent of the information she received from Mid-Columbia. The evidence shows that Ms. Willingham believed her son was suicidal when he was admitted at Mid-Columbia. But upon discharge, she was not told he was suicidal. Rather, she was advised that he was a sociopath. Ms. Willingham claimed this new diagnosis confused her. Her actions were thus related to Mid-Columbia’s alleged negligence.
This conclusion is supported by the testimony of three expert witnesses. Each testified that Mid-Columbia’s actions in dealing with Robert were negligent. The experts found that Mid-Columbia’s diagnosis was not supportable. They indicated the diagnosis was the result of its failure to gather a detailed psychological history. The experts also indicated the center was negligent in dealing with Ms. Willingham. Mid-Columbia did not make any attempt to explain its diagnosis to her. Its failure to do so left her without any useful information to seek proper treatment for her son. The experts agreed that Mid-Columbia’s failure to communicate with her made it more likely than not that she would decline to seek additional treatment for Robert. The experts noted a direct relationship between Ms. Willingham’s actions and Mid-Columbia’s negligence.
The issue of proximate cause is a question for the jury unless “the facts are undisputed and the inferences therefrom are plain and incapable of reasonable doubt.” Attwood, 92 Wn. App. at 330 (quoting Bernethy v. Walt Failor’s, Inc., 97 Wn.2d 929, 935, 653 P.2d 280 (1982)). Although a jury might ultimately determine that Ms. Willingham’s actions were a superseding cause relieving Mid-Columbia of liability, the evidence and inferences here do not lead to that one inescapable conclusion. Summary judgment was inappropriate. Because questions of fact exist, the court erred by granting summary judgment.[1] Reversed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY and SCHULTHEIS, JJ., concur.
The court correctly found Ms. Willingham’s claim of corporate negligence was not barred by collateral estoppel.