                       V...



          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

NICHOLE POLETTI, as the Executor of
the Estate of Sherri Poletti, Deceased,          No. 67821-3-1

                    Respondent,                 ORDER GRANTING
                                                MOTION TO PUBLISH
                                                OPINION


OVERLAKE HOSPITAL MEDICAL
CENTER,

                    Appellant,

             and

KING COUNTY,

                     Defendant.



       Non-party Kathy A. Cochran, attorney for Providence Health &Services-

Washington, has filed a motion to publish the opinion filed April 1, 2013; Appellant
Overlake Hospital Medical Center has filed a response to the motion to publish; and
Respondent Nichole Poletti has notfiled a response. The hearing panel has
considered its prior determination and finds that the opinion will be of precedential

value; Now, therefore, it is hereby

       ORDERED that the written opinion shall be published and printed in the

Washington Appellate Reports.

       DONE this ^ I day of May, 2013.
                                                 FOR THE COURT:




                                                   V
                                                             Judge
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

NICHOLE POLETTI, as the Executor of
the Estate of Sherri Poletti, Deceased,          No. 67821-3-1


                    Respondent,                  DIVISION ONE




                                                                                         o
OVERLAKE HOSPITAL MEDICAL                           PUBLISHED OPINION          S        —tc
CENTER,
                                                 FILED: April 1,2013
                    Appellant,

              and
                                                                                   «         ^^
                                                                                   Hi        -AG
KING COUNTY,                                                                       ro        S"S.
                                                                                   as        -" ,_.

                     Defendant.



      Becker, J. —We accepted discretionary review in this wrongful death

case to determine the standard by which a fact finder should judge Overlake

Hospital's decision to discharge, rather than detain, a voluntarily admitted

psychiatric patient. We conclude Overlake's decision to discharge the patient

implicated the involuntary treatment act, chapter 71.05 RCW, and the hospital

cannot be liable if the decision was made in good faith and without gross

negligence.

       Sherri Poletti, 58, suffered from bipolar disorder. Around Christmas Day

2006, she stopped taking her medications and began to drive aimlessly
No. 67821-3-1/2


throughout Washington, Oregon, and Canada. Late at night on December 30,

2006, she sought help at a hospital emergency room in Seattle, reporting

sleeplessness, paranoia, hallucinations, and suicidal thoughts. She was referred
and transported to Overlake Hospital Medical Center. There, she agreed to be
admitted voluntarily into the psychiatric unit. Eighteen hours later, she said she
felt better and asked to be discharged. A nurse tried to dissuade Poletti from

leaving, but after a telephone consultation with the county designated mental
health professional, she granted Poletti's request to be discharged. Poletti went
home in a taxi but then resumed driving. She died not long afterwards, miles

away, in a single-car crash.

       In March 2008, Nichole Poletti, Sherri Poletti's daughter and the personal
representative of her estate, filed a wrongful death suit against Overlake Hospital
and King County. The estate claimed that Overlake was guilty of ordinary
negligence for discharging Poletti without an in-person evaluation by a county
designated mental health professional, and King County was guilty of gross
negligence for failing to evaluate her in person, given their knowledge of her
history of bipolar disorder. Overlake Hospital denied any negligence and
asserted that it could be liable only for gross negligence as provided by the act,

 RCW71.05.120(1).1



       1Early in the case, the defendants obtained dismissal on summary judgment
 based on arguments not made here. This court reversed the judgment. Poletti v.
 Overlake Hosp. Med. Cntr. noted at 156 Wn. App. 1012 (2010). King County
 subsequently settled with Poletti's estate.
No. 67821-3-1/3


         On September 23, 2011, the trial court granted the estate's motion for

partial summary judgment and ruled that Overlake was not entitled to be judged

by the gross negligence standard of care. The court found that "Overlake did not

detain Sherri Poletti and the Involuntary Treatment Act was not implicated at any

time." The court also ruled that Overlake breached the standard of care as a

matter of law because it had failed to refer Poletti to a King County designated

mental health professional for assessment, which the court determined was

required by one of the hospital's own policies. The court certified its order for

discretionary review under RAP 2.3, and this court granted Overlake's motion for

discretionary review.

         Summary judgment is proper only ifthere are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. CR

56(c).

         The issues presented require statutory interpretation. The court reviews

issues of statutory interpretation and orders granting summary judgment de

novo. Cerrillo v. Esparza, 158 Wn.2d 194, 199, 142 P.3d 155 (2006); In re Pet.

of Danforth. 173 Wn.2d 59, 68, 264 P.3d 783 (2011).

Standard of Care

         The involuntary treatment act is primarily concerned with the procedures

for involuntary mental health treatment of individuals who are at risk of harming

themselves or others, or who are gravely disabled. Pertinent to this case, the act

is also concerned with individuals who voluntarily seek inpatient mental health
No. 67821-3-1/4


treatment. Ordinarily, a person admitted voluntarily "shall be released

immediately upon his or her request." RCW 71.05.050. If a hospital regards

such a person as meeting the test provided in the act for involuntary

commitment, the hospital "may detain such person for sufficient time" to allow the

county designated mental health professional to assess the person:

       Nothing in this chapter shall be construed to limit the right of any
       person to apply voluntarily to any public or private agency or
       practitioner for treatment ofa mental disorder, either by direct
       application or by referral. Any person voluntarily admitted for
       inpatient treatment to any public or private agency shall be released
       immediately upon his or her request. Any person voluntarily
       admitted for inpatient treatment to any public or private agency
       shall orally be advised of the right to immediate discharge, and
       further advised of such rights in writing as are secured to them
       pursuant to this chapter and their rights of access to attorneys,
       courts, and other legal redress. Their condition and status shall be
       reviewed at least once each one hundred eighty days for evaluation
       as to the need for further treatment or possible discharge, at which
       time they shall again be advised oftheir right to discharge upon
       request: PROVIDED HOWEVER, That if the professional staff of
       any public or private agency or hospital regards a person voluntarily
       admitted who requests discharge as presenting, as a result ofa
       mental disorder, an imminent likelihood of serious harm, or is
       gravely disabled, they may detain such person for sufficient time to
       notify the county designated mental health professional of such
       person's condition to enable the [mental health professional] to
       authorize such person being further held in custody ortransported
       to an evaluation and treatment center pursuant to the provisions of
       this chapter, which shall in ordinary circumstances be no later than
       the next judicial day.

 RCW 71.05.050.

       Another section of the statute exempts decision makers from liability for

 ordinary negligence under certain circumstances, substituting a gross negligence
 standard for duties performed pursuant to the act with regard to decisions
No. 67821-3-1/5


whether to "admit, discharge, release, administer antipsychotic medications, or

detain a person for evaluation and treatment."

      (1) No officer of a public or private agency, nor the superintendent,
      professional person in charge, his or her professional designee, or
      attending staff of any such agency,... nor any county designated
      mental health professional,... or an evaluation and treatment
      facility shall be civilly or criminally liable for performing duties
      pursuant to this chapter with regard to the decision of whether to
      admit, discharge, release, administer antipsychotic medications, or
      detain a person for evaluation and treatment: PROVIDED, That
      such duties were performed in good faith and without gross
       negligence.121
RCW 71.05.120(1).

       Overlake contends its decision to discharge Poletti instead of detaining

her for a formal evaluation by a county designated mental health professional is

exemptfrom liability under RCW 71.05.120(1) if performed in good faith and

without gross negligence. The estate defends the trial court ruling and argues
that the involuntary treatmentact does not apply at all because the hospital did
not detain Poletti. The estate contends the ordinary medical negligence standard

of RCW 7.70.040 should govern the case.

       "Our fundamental purpose in construing statutes is to ascertain and carry

out the intent of the legislature. We determine the intent of the legislature

primarily from the statutory language. In the absence ofambiguity, we will give
effect to the plain meaning of the statutory language." In re Marriage of
Schneider, 173 Wn.2d 353, 363, 268 P.3d 215 (2011) (citations omitted).


       2 In a 1974 amendment, the legislature inserted the term "gross" before
"negligence" in this proviso, indicating a decision to change the standard of care. RCWA
71.05.120.
No. 67821-3-1/6



       The plain language of the act shows it applies to voluntary admissions for

psychiatric treatment. How to deal with patients who voluntarily seek inpatient

treatment is the subject matter of RCW 71.05.150. Poletti's estate cannot hold

Overlake Hospital liable for failing to detain Sherri Poletti without invoking the

immunity provision of RCW 71.05.120 because the only authority under which

Overlake could have detained Poletti was under the involuntary treatment act.

See Estate of Davis v. Dep't of Corr.. 127 Wn. App. 833, 840-41, 113P.3d487

(2005). The trial court erred in concluding that Overlake's decision to discharge

Poletti did not implicate the act.

       The gross negligence standard provided by the act applies to a hospital's

performance of "duties pursuant to this chapter." RCW 71.105.120(1). The

estate argues that the only duty a hospital has under RCW 71.05.150 is to

"detain" a patient. This is manifestly inaccurate. A person voluntarily admitted

"shall be released immediately upon his or her request." The proviso makes an

exception to this rule by authorizing a hospital to detain ("they may detain") if staff

regard the person as presenting "an imminent likelihood of serious harm" or as

"gravely disabled." "Shall" is mandatory while "may" is permissive. Thus,

releasing a voluntarily admitted patient "immediately" upon request is the primary

duty, and arguably the only duty, specified by this section of the act.

       Moreover, application of the gross negligence standard provided by RCW

71.05.120(1) is not limited only to decisions to detain a person against her will. It

covers decisions whether or not "to admit, discharge, release, administer
No. 67821-3-1/7


antipsychotic medications, or detain a person for evaluation and treatment." The

act defines "admit" as a decision by a physician or psychiatric advanced

registered nurse practitioner that a person should be examined or treated as a

patient in a hospital. RCW 71.05.020(1). The act defines "discharge"3 as the
termination of hospital medical authority. RCW 71.05.020(15). The act defines

"release" as the legal termination of a court-ordered commitment, and "detain" as

the lawful confinement of a person under the provisions of the act, among other

terms. RCW 71.05.020(37),(12). It is clear the legislature intended to provide

limited immunity for a range of decisions that a hospital can make when a patient

arrives, whether voluntarily or involuntarily, for evaluation and treatment.

Overlake made a decision to discharge Poletti, pursuant to its duty under RCW

71.05.050 to release her immediately upon her request. Overlake cannot be held

liable for this decision if it performed this duty in good faith and without gross

negligence.

       The estate argues that under this interpretation of the act, hospitals could

immunize their entire course of treatment of a psychiatric patient merely by

considering whether to have the patient evaluated for involuntary commitment.

This scenario is overblown. The act's limited exemption from liability does not

apply to all damages a psychiatric patient might suffer as a result of treatment

decisions. The act applies in the present case to the extent the estate is claiming




       3 In 2000, the legislature amended RCW 71.05.120(1) to include the term
"discharge" in the list of covered decisions. See RCWA 71.05.120.

                                             7
No. 67821-3-1/8


that Poletti's death was caused by Overlake's decision to discharge her, a

decision expressly mentioned in and covered by RCW 71.05.120(1).

       "Statutes involving a deprivation of liberty are to be construed strictly." In

reDet.ofSwanson, 115 Wn.2d 21, 27, 793 P.2d 962, 804 P.2d 1 (1990).

Detaining a patient against her will under the involuntary treatment act is a

"'massive curtailment of liberty.'" In re LaBelle, 107 Wn.2d 196, 201, 728 P.2d

138 (1986), quoting Humphrey v. Cadv. 405 U.S. 504, 509, 92 S. Ct. 1048, 31 L.

Ed. 2d 394 (1972). The trial court's ruling would have the incongruous result of

holding a hospital to the higher standard of ordinary negligence when discharging

a voluntarily admitted psychiatric patient, while holding the hospital to the lower

standard of gross negligence when releasing an involuntarily committed patient.

Nothing in the statutory language evinces such an intent. A hospital

presumptively must discharge a voluntary patient "immediately upon his or her

request." RCW 71.05.050. While a hospital does have authority under the

statute to detain a patient briefly to obtain a formal evaluation, the hospital will

not face liability for discharging the patient without an evaluation as long as the

decision is made in good faith and without gross negligence.

       The estate contends that even if the decision to discharge Poletti

implicates the act, the act's gross negligence standard applies only to the

decision to discharge, while other acts of negligence are to be evaluated under

the ordinary medical negligence standard. The estate points to a number of

mistakes the hospital allegedly made in caring for Poletti during the eighteen



                                              8
No. 67821-3-1/9


hours between her voluntary admission and discharge. For example, taken in

the light most favorable to the estate, the record indicates the hospital did not

monitor Poletti as it should have and as a result was unaware that she still was

not getting much sleep. Also, there is evidence the charge nurse did not follow

the attending physician's orders.

       The estate's primary wrongful death theory is that the hospital's act of

discharging Poletti caused her death. We leave for the trial court to consider on

remand whether any hospital employees' acts that preceded or followed the

decision to discharge may have caused Poletti's death, and what jury instructions

would be appropriate to allow the estate to develop such a theory.

       At the time of the court's certification for discretionary review, the estate

had just moved to amend the complaint by adding a theory of lack of informed

consent. The parties agreed at oral argument before this court that the motion

was denied without prejudice because the parties had agreed to a stay. We

express no opinion as to this motion.

Breach As a Matter of Law

       The trial court ruled that the hospital's failure to follow its own policy

requiring referral for a formal evaluation "constituted a breach of the standard of

care as a matter of law." This second ruling is also before this court on

discretionary review.

       Overlake's policy No. 12548, entitled "Emergency Psychiatric Treatment

and Transfers," provides as follows:
No. 67821-3-1/10


      Policy: Individuals seeking care will be provided emergency
      establishing psychiatric treatment, within the capacity of the
      Emergency Department and Psychiatric Services. When additional
      specialized psychiatric inpatient services are clinically indicated, the
      patient will be offered admission to Overlake Hospital Medical
      Center Inpatient Psychiatric Unit or will be offered referral to
      another appropriate facility. Any arrangements for transfer of
      stabilized patients will provide for safe transport.


      C. Patients in need of furtherpsychiatric (inpatient) treatment, but
      who are either not accepted for further treatment by other facilities,
      or who do not consent to treatment, will be referred to the County
      Designated Mental Health Professional, for immediate evaluation.

              1. Patients evaluated by CDMHP will either be released or
                 transferred, as directed by CDMHP
              2. Rationale: Treatment Planning/Patient Safety14'
      The estate is free to argue to the finder of fact that Overlake's failure to

refer Poletti for immediate evaluation by the county designated mental health

professional was a breach of the standard of care established by the hospital's

own policy. Detaining a voluntary patient to make such a referral is expressly

permitted by RCW 71.05.050. The estate contends, however, that the hospital's

breach has already been conclusively established because it was unrebutted that

the hospital failed to refer Poletti for evaluation by the county designated mental

health professional. What the estate overlooks is that the requirement for referral

in policy No. 12548 (C.) applies only to patients who are "in need of further

psychiatric (inpatient) treatment." Whether Poletti, at the time of her discharge,




        Clerk's Papers at 627 (emphasis added).

                                             10
No. 67821-3-1/11


was in need of further inpatient psychiatric treatment was disputed in the record

below5 and therefore it is a factual question that must be left for trial.
       The trial court did not reach the issue of whether the evidence of gross

negligence was so abundant that Overlake should be held grossly negligent as a

matter of law. The estate invites the court to dispose of the case on this basis.

We decline the invitation. There are factual issues that cannot be resolved on

the limited record before us.


       The rulings before us on discretionary review are both reversed.




WE CONCUR:




                                                              Csx.J-




       5 E.g.. Clerk's Papers at 771, Deposition of Dr. John Chiles at 72.

                                               11
