WA Legal Roundup
While your esteemed professor attempts to bring you the breaking news out of the Washington courts in a timely fashion, sometimes practice gets in the way and I have to put off the reporting in order to take care of business. Anyhow, one case each out of Divs. I & II.
In Sherman v. Kissinger, we find a case of the law trying to go to weird extremes, Division I was forced to rule on whether the medical malpractice statute found in Ch. 7.70 RCW applied to (wait for it...wait for it) pets. Some of the more hilarious bits:
 Although Sherman characterizes her action as an action for "wrongful death," this is a misnomer because there is no such cause of action. Whether to establish a cause of action for the wrongful death of a dog is a matter for the legislature. In the last legislative session, the legislature considered, but did not adopt, a bill creating "a cause of action for the wrongful injury or death of a companion animal." House Comm. on Judiciary, H.B. Rep. on H.B. 2945, 60th Leg., Reg. Sess. (Wash. 2008). The bill appears modeled on the timber trespass statute, RCW 64.12.030, allowing recovery of "exemplary damages up to three times the actual damages sustained plus attorney's fees" for cruelty. Id.
. . .
In April 2007, BVH and Kissinger filed a motion for partial summary judgment on the grounds that the medical malpractice act, chapter 7.70 RCW, applied by analogy to veterinarians and veterinary clinics and barred all of Sherman's claims except negligence. The trial court granted the motion, ruling that as a matter of law "RCW 7.70 applies to this case" and prevented Sherman from bringing such claims as breach of bailment contract, negligent misrepresentation, conversion and trespass to chattels, and breach of fiduciary duty. However, the court allowed Sherman to amend her complaint to allege medical battery and claims under ch. 7.70 RCW.
. . .
The legislature also uses the term "patient" throughout the statute to refer to humans. For example, a health care provider must "secure an informed consent by a patient or his representatives" and the consent must be "in language the patient could reasonably be expected to understand . . . ." RCW 7.70.050, 7.70.060(a). Based on the plain and unambiguous language of chapter 7.70 RCW, we conclude the act applies only to human health care, and does not apply to veterinarians or veterinary clinics.
Kudos to whichever clerk had this assignment for keeping a straight face. Additional kudos to counsel in both sides for stretching their imaginations to come up with some "colorable" arguments.
State v. Calhoun involves an SVP case which isn't really an SVP case at all. Essentially Calhoun was mistreated by a job supervisor at the Special Commitment Center. Several people along the way had urged Calhoun to file a grievance, which he refused to do each time:
On October 23, 2004, Calhoun sent a letter to SCC Superintendent Dr. Henry Richards, in which he complained about the chain incident and explained that Hutterman's general behavior had created a racially hostile working environment. Additionally, Calhoun admitted that he had rebuffed attempts by Weeks, Stepanek, and Ramseth to discuss his allegations against Hutterman or file a grievance. Calhoun did not raise any complaints regarding Weeks, Stepanek, Dr. Richards, or Burgess in the letter. Finally, Calhoun informed Dr. Richards that Stepanek had arranged for him to be transferred to work in the custodial department.
Although Ramseth conducted an internal investigation, Dr. Richards requested an investigation by DSHS' Human Resources Division, Equal Opportunity Section (HRD) on November 1, 2004. On November 4, 2004, Calhoun was notified that the HRD had opened an investigation. In May 2005, the HRD issued letters to both Dr. Richards and Calhoun informing them that it had completed its investigation. The HRD advised them that it had substantiated Calhoun's allegations and that remedial steps would be taken. Based on this investigation, Dr. Richards formally disciplined Hutterman for violating SCC Policy 140, Resident Abuse.
The bulk of the opinion, if you hadn't guessed, focuses on the Washington Law Against Discrimination (WLAD) claim, which the court held does not apply, affirming the trial court:
We note that, for purposes of the [Minimum Wage Act], an "employee" does not include "[a]ny resident, inmate, or patient of a state, county, or municipal correctional, detention, treatment or rehabilitative institution." RCW 49.46.010(5)(k). In light of this exclusion, there is no reason to believe that the legislature or the courts expected or intended that principles derived from the MWA would be used to determine whether an SCC resident-worker qualifies as an "employee" under chapter 49.60 RCW. Furthermore, at oral argument, counsel for Calhoun conceded that as an SCC resident-worker, Calhoun is ineligible for workers' compensation; the State also noted that SCC resident-workers are ineligible for Social Security benefits and cannot participate in the State's employee retirement program.
Regardless, the court held that the claims were properly addressed:
Furthermore, the SCC has adopted several policies that govern resident job training, resident abuse, and the process by which residents can file grievances against SCC personnel. Even though Calhoun repeatedly refused to participate in the SCC's internal grievance process in this case, the SCC ultimately disciplined Hutterman for his discriminatory actions. We hold that Calhoun's claims were adequately addressed by the SCC and that the trial court's ruling that chapter 49.60 RCW does not provide the proper forum in which to address these claims was correct.
I think this case, rather than illustrating what was actually an ambiguous point of law, demonstrates the deficiencies in some pseudo health care environments in terms of hiring practices. Seems to me, one might be able to develop a test of some sort that would screen out things such as racist tendencies, which can become overtly problematic in an environment where supervisors are given greater amounts of leeway in their supervision of residents.