       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 MONIQUE MESSENGER and KEVIN                    No. 80639-4-I
 MESSENGER, wife and husband,
 individually and on behalf of their minor      DIVISION ONE
 children, M.M., G.M., L.M., B.M., and
 Q.M.,

                             Appellants,        OPINION PUBLISHED IN PART

               v.

 SHANNON L. WHITEMARSH, as
 Administrator-Personal Representative
 of THE ESTATE OF BRYAN DONALD
 WHITEMARSH; and MULTICARE
 HEALTH SYSTEM, a Washington
 nonprofit corporation,

                            Respondents.


       CHUN, J. — The Messenger family brought a medical malpractice suit

against the estate of Bryan Whitemarsh, MD (Estate), and they also sued

Whitemarsh’s former employer, MultiCare Health System. The family claimed

damages arising from a sexual relationship between Whitemarsh and his patient,

Monique Messenger. The trial court granted the defendants’ motions for

summary judgment. The Messengers appeal.

       In the published portion of this opinion, we hold that a primary care

physician who provides mental health services to a patient may be liable for

malpractice for injuries arising from the doctor’s sexual relationship with that
No. 80639-4-I/2


patient. We also conclude that the Messengers established genuine issues of

material fact as to whether Whitemarsh treated Monique’s1 mental health issues

and as to whether the sexual relationship constituted breach of duty.

       In the unpublished portion of this opinion, we conclude that the trial court

properly granted summary judgment as to the Messengers’ claims against

MultiCare for negligent supervision or training and negligent hiring or retention.

       As a result, we affirm in part and reverse in part.

                                    I. BACKGROUND

       From about 2010 to 2016, Whitemarsh acted as the Messenger family’s

primary care physician. In August 2015, Monique and Whitemarsh began an

extramarital sexual relationship. Monique claims that before and during the

affair, Whitemarsh treated her for depression. Kevin, Monique’s husband,

eventually discovered the affair and confronted her with his knowledge. In June

2016, Whitemarsh and Monique met and ended their relationship; Monique

alleges that during their meeting, Whitemarsh threatened to kill her, Kevin, and

himself. Whitemarsh committed suicide at home later that evening.

       The Messenger family sued the Estate for medical malpractice, claiming

Whitemarsh violated his duty of care to Monique by engaging in a sexual

relationship with her. The Messengers also sued Whitemarsh’s former employer,

MultiCare, for vicarious liability and negligence.

       The Estate and MultiCare moved for summary judgment. The

Messengers moved to continue the summary judgment hearing, which motion

       1
           For clarity, we use the Messengers’ first names. We intend no disrespect.


                                             2
No. 80639-4-I/3


the trial court denied. Before the hearing, the Messengers moved to amend their

complaint, requesting inclusion of a breach of fiduciary duty claim and a negligent

infliction of emotional distress claim against the Estate and MultiCare. The trial

court granted the Estate’s and MultiCare’s motions for summary judgment and

denied leave to amend. The Messengers appeal.

                                   II. ANALYSIS

   A. Standard of Review

       We review de novo summary judgments. Strauss v. Premera Blue Cross,

194 Wn.2d 296, 300, 449 P.3d 640 (2019). “Summary judgment is appropriate

when there is no genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law.” Strauss, 194 Wn.2d at 300 (internal

ellipsis, internal quotation marks and citation omitted); CR 56(c). We must

construe all facts and inferences in favor of the nonmoving party. Scrivener v.

Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (2014). “A genuine issue of

material fact exists when reasonable minds could differ on the facts controlling

the outcome of the litigation.” Dowler v. Clover Park Sch. Dist. No. 400, 172

Wn.2d 471, 484, 258 P.3d 676 (2011).

   B. Medical Malpractice Claim Against the Estate

       The Messengers argue that any physician who engages in a sexual

relationship with their patient, as Whitemarsh did with Monique, commits medical

malpractice under RCW 7.70. They alternatively claim that, because

Whitemarsh provided Monique with mental health treatment, their sexual

relationship constituted medical malpractice under RCW 7.70. The Estate


                                         3
No. 80639-4-I/4


argues Whitemarsh’s conduct is non-actionable under RCW 7.70, because

(1) primary care physicians are not subject to RCW 7.70 liability for sexual

relationships with patients and (2) no admissible evidence establishes that

Whitemarsh provided Monique with mental health treatment. We conclude that

the Messengers have established a genuine issue of material fact as to whether

Whitemarsh treated Monique’s mental health issues. We also conclude that a

primary care physician who provides mental health treatment to a patient may be

subject to malpractice liability for engaging in a sexual relationship with that

patient, and that the Messengers have established a genuine issue of material

fact as to whether Whitemarsh breached his duty to Monique.2

        1. Evidence of mental health treatment

            a. Medical records

        In Monique’s November 8, 2012 medical record, Whitemarsh noted that

Monique had an “[a]djustment disorder with depressed mood,” “has been feeling

ok,” “continues to have difficulty with her separation with her husband,” “has

periods of depression,” and “has been seeing a counselor.” He also noted that

her “mood [is] ok,” “affect [is] anxious,” “[t]hought process [is] logical and linear

without loosening of associations or flight of ideas,” that her “[t]hought content [is]


        2
           Throughout their briefing, the Messengers claim that Whitemarsh violated his
fiduciary duty to Monique. In a footnote in their reply brief, the Messengers argue that “it
is also doubtful whether a separate cause of action for breach of fiduciary duty against a
physician is still viable in light of the Legislature’s decision to reclassify ‘all civil actions
for damages for injury occurring as a result of health care, regardless of how the action
is characterized’ under RCW 7.70.” The trial court denied the Messengers’ motion to
amend their complaint to include claims for breach of fiduciary duty and negligent
infliction of emotional distress. The appellants do not assign error to that ruling.



                                                4
No. 80639-4-I/5


normal,” that she “[d]enies suicidal or homicidal ideation,” and that she “[d]enies

audio or visual hallucinations.” Finally, he notes that Monique should “continue

counseling.” When viewing this evidence in the light most favorable to the

Messengers, one could reasonably conclude that Whitemarsh provided Monique

with mental health services. Thus, the medical records establish a genuine issue

of material fact that Whitemarsh treated her mental health issues.

            b. Monique’s declaration and deposition; dead man’s statute

       Monique’s declaration and deposition testimony also establish a genuine

issue of material fact as to whether Whitemarsh treated her mental health issues.

In her declaration, Monique claimed that Whitemarsh offered to prescribe her

antidepressants and counseled her for depression. In her deposition, she stated

that Whitemarsh had spoken to her about her postpartum depression, asked

questions about how she felt, and offered to prescribe her antidepressants.

Viewing this evidence in the light most favorable to the Messengers, one could

reasonably conclude that Whitemarsh provided Monique with mental health

services.

       The Estate argues that the trial court properly applied the dead man’s

statute to bar this evidence. “The [dead man]’s statute, RCW 5.60.030, bars

testimony by a ‘party in interest’ regarding ‘transactions’ with the decedent or

statements made to [them] by the decedent.” Estate of Lennon v. Lennon, 108

Wn. App. 167, 174, 29 P.3d 1258 (2001). Assuming without deciding that the

dead man’s statute would normally bar Monique’s declaration and deposition, we

conclude that the Estate waived the statute’s protections by introducing


                                         5
No. 80639-4-I/6


Monique’s medical records. Thus, the Messengers may introduce Monique’s

declaration and deposition if they rebut evidence of Monique’s visits to

Whitemarsh that are present in the introduced medical records.

      We review de novo the admissibility of evidence in summary judgment

proceedings. Parks v. Fink, 173 Wn. App. 366, 375, 293 P.3d 1275 (2013).

Introduction of documents written or executed by the deceased, including

medical records, does not typically waive the protections of the dead man’s

statute. Erickson v. Robert F. Kerr, M.D., P.S., Inc., 125 Wn.2d 183, 188–89,

883 P.2d 313 (1994). In Erickson, the Erickson estate introduced the decedent

patient Erickson’s medical records, written by the doctor against whom they

asserted medical malpractice. 125 Wn.2d at 187. Our Supreme Court

determined that the Erickson estate did not waive the protections of the dead

man’s statute because the records were made contemporaneous with treatment,

made in the doctor’s usual course of business, and were not self-serving to the

estate, since they were not written by the party offering them. Erickson, 125

Wn.2d at 189. The court reasoned that the “objective nature of such records

made prior to any motive for fabrication obviates the statute’s protection against

self-serving statements.” Erickson, 125 Wn.2d at 188.

      By contrast, in Bentzen v. Demmons, the personal representative of his

deceased aunt’s estate submitted an affidavit in which he asserted that he knew

of no oral agreement between his aunt and Bentzen to bequeath her assets to

Bentzen. 68 Wn. App. 339, 343–44 n.2, 842 P.2d 1015 (1993). The trial court

had ruled that the protections of the dead man’s statute barred contrary


                                         6
No. 80639-4-I/7


testimony from Bentzen. Bentzen, 68 Wn. App. at 343. The appellate court held

that, by saying his aunt never told him of an oral agreement between her and

Bentzen, the personal representative waived the dead man’s statute’s

protections, since he effectively introduced evidence about a transaction with the

deceased. Bentzen, 68 Wn. App. at 345–46.

       Here, in moving for summary judgment, the Estate offered Monique’s

medical records to counter the Messengers’ assertion that Whitemarsh provided

Monique with mental health treatment. The record from Monique’s February 3,

2016 visit is self-serving to the Estate in that it omits the sexual relationship with

Monique. In the record, Whitemarsh wrote that Monique had a “[s]ingle current

partner for past 7 months/years[,]” presumably referring to her husband Kevin.

But the inception of his affair with Monique predated that visit by at least five

months, so this entry was false. The medical records are also self-serving to the

Estate in that they present little to no evidence that Whitemarsh treated

Monique’s mental health issues, save for the November 8, 2012 record. After

beginning a sexual relationship with Monique, Whitemarsh had reason to

fabricate the records, and minimize the fact of any possible mental health

treatment he provided to Monique; he may have engaged in such fabrication, as

shown by his entry on the February 3, 2016 record. The records may also

minimize his treatment of her mental health issues because of their sexual

relationship. Additionally, unlike in Erickson, where the medical records’

proponent (the estate of the patient) did not author them, so they were not self-

serving, here, the Estate introduced documents written by Whitemarsh, so the


                                           7
No. 80639-4-I/8


records are self-serving. We conclude the Estate has waived the dead man’s

statute’s protections by introducing the medical records.3

       Once the party protected by the dead man’s statute has waived its

protections, the interested party may rebut the evidence that waived the statute’s

protections. Bentzen, 68 Wn. App. at 345. “However, waiver by introduction of

testimony about one transaction does not extend to unrelated transactions and

conversations.” Bentzen, 68 Wn. App. at 345.

       Thus, the Messengers may introduce Monique’s statements only if they

rebut the evidence in the medical records. Most of the records show no evidence

of mental health treatment; Monique’s declaration and deposition, in which she

claims Whitemarsh provided her with such treatment, rebut the medical records.

       Because the Messengers have established a genuine issue of material

fact as to whether Whitemarsh provided Monique with mental health treatment,

we need not reach the issue of whether any physician who engages in a sexual


       3
          Because Whitemarsh signed many of Monique’s medical records on a later
date than her visits, it is unclear whether Whitemarsh made the records
contemporaneous with Monique’s visits. Whitemarsh signed the record for Monique’s
November 8, 2012 visit on November 12, 2012; he signed the record for Monique’s
May 21, 2013 visit on June 2, 2013; he signed the record for Monique’s September 11,
2013 visit on September 25, 2013; and he signed the record for Monique’s February 3,
2016 visit on February 10, 2016. But Whitemarsh signed the record for Monique’s
October 9, 2014 visit on the same day, and he signed the record for Monique’s July 15,
2015 visit on the same day.
        Whitemarsh’s medical assistant signed the records corresponding to Monique’s
May 21, 2013 visit and her February 3, 2016 visit on the day of the visits, suggesting the
records may have been created on May 21 and February 3, even if Whitemarsh did not
sign them until later. Various orders and prescriptions are listed as “signed” on the day
of the visit for the records corresponding to the November 8, 2012 visit, the May 21,
2013 visit, and the September 11, 2013 visit, also suggesting the office created the
records on the day of the visit, even if Whitemarsh signed them later. While
contemporaneity is unclear, we still conclude the Estate waived the dead man’s statute’s
protections because the records are self-serving to the Estate.


                                            8
No. 80639-4-I/9


relationship with a patient commits malpractice. Instead, we analyze whether a

primary care physician who provides mental health services to a patient commits

malpractice by engaging in a sexual relationship with that patient.

       2. Actionability

       In Washington, to sustain a medical malpractice claim based on a failure

to follow an accepted standard of care, a plaintiff must establish these elements:
       (1) The health care provider failed to exercise that degree of care,
       skill, and learning expected of a reasonably prudent health care
       provider at that time in the profession or class to which [they belong],
       in the state of Washington, acting in the same or similar
       circumstances;
       (2) Such failure was a proximate cause of the injury complained of.

RCW 7.70.040. RCW 7.70 provides the exclusive remedy for damages for

injuries resulting from health care. Branom v. State, 94 Wn. App. 964, 968–69,

974 P.2d 335, review denied, 138 Wn.2d 1023, 989 P.2d 1136 (1999).

       RCW 7.70 limits recovery to instances in which injury occurs as the result

of health care. See RCW 7.70.010 (“Declaration of modification of actions for

damages based upon injuries resulting from health care”), .030 (“No award shall

be made in any action or arbitration for damages for injury occurring as the result

of health care . . . unless the plaintiff establishes one or more of the following

propositions . . .”); Branom, 94 Wn. App. 968–69. Health care is “the process in

which a physician is utilizing the skills which [they] had been taught in examining,

diagnosing, treating, or caring for the plaintiff as [their] patient,” and “[t]he

prevention, treatment, management of illness and the preservation of mental and

physical well-being through the services offered by the medical and allied health



                                            9
No. 80639-4-I/10


professions.” Branom, 94 Wn. App. at 969–70 (internal quotation marks,

brackets and citations omitted).

       Washington cases have not yet answered the question of whether a

primary care physician who provides mental health services to a patient may be

liable under RCW 7.70 for engaging in a sexual relationship with that patient.4

Some Washington cases favorably recognize decisions adopting the view that

such conduct by a psychologist or mental health therapist can support a

malpractice claim. See Am. Home Assur. Co. v. Cohen, 124 Wn.2d 865, 872,

881 P.2d 1001 (1994) (“[M]ost courts which have considered the issue have

ruled that sexual or erotic contact with a client is ‘malpractice’ or ‘professional

negligence’ on the part of a psychologist or other mental health therapist.”); see

also Washington Ins. Guar. Ass’n v. Hicks, 49 Wn. App. 623, 627, 744 P.2d 625

(1987) (recognizing that malpractice insurance coverage has been allowed in

cases of sexual contact between a mental health therapist or psychiatrist and a

patient) (citing Simmons v. United States, 805 F.2d 1363, 1365 (9th Cir. 1986)

(describing the scope of when a mental health therapist or psychiatrist may be

liable in malpractice for sexual contact with a patient)). And in Simmons, the

Ninth Circuit stated that “[t]here is no question that a mental health professional’s

sexual involvement with a client is a breach of duty and malpractice under

Washington law.” 805 F.2d at 1368 (citing Omer v. Edgren, 38 Wn. App. 376,


       4
         Washington law, however, provides that a physician’s sexual contact with a
patient constitutes unprofessional conduct. See RCW 18.130.180(24); WAC 246-16-
100(1); see also, Haley v. Medical Disciplinary Bd., 117 Wn.2d 720, 735–36, 738, 818
P.2d 1062 (1991) (holding that a doctor’s sexual relationship with a juvenile former
patient demonstrated unfitness to practice medicine warranting professional discipline).


                                           10
No. 80639-4-I/11


379, 685 P.2d 635 (1984) (determining a patient has a cause of action against a

psychiatrist with whom the patient had a sexual relationship, because the

psychiatrist breached his fiduciary duty to the patient)).

       In Cohen, our Supreme Court characterized Omer as follows: “the Court of

Appeals held that a patient of a psychiatrist had a cause of action for damages

based on the psychiatrist’s sexual contact with her.” 124 Wn.2d at 872 n.10.

The Cohen court declined to embrace Omer and stated that “[the Washington

Supreme Court] has not determined whether sexual misconduct by psychologists

is malpractice and we do not decide that issue in this case.” 124 Wn.2d at 872.

Notably, neither Cohen nor Omer analyzed this issue in the context of RCW 7.70,

but in the insurance and fiduciary duty contexts, respectively.

       Non-Washington cases provide some guidance. Some courts have held

that a psychiatrist or mental health therapist commits malpractice if they

mishandle the “transference phenomenon” and enter into a sexual relationship

with the patient.5 The term “transference” denotes how a mental health patient

develops emotions toward and projects feelings onto their therapist. Simmons,

805 F.2d at 1364.6 Such feelings may be inappropriate, and either hostile or

loving. Simmons, 805 F.2d at 1365. “Understanding of transference forms a

basic part of the psychoanalytic technique,” and mental health professionals are



       5
           See, e.g., Simmons, 805 F.2d at 1364–66.
       6
           While the Ninth Circuit decided Simmons almost 34 years ago, courts continue
to cite its observations on the transference phenomenon. See, e.g., Gregg v. Hawaii,
Dep’t of Pub. Safety, 870 F.3d 883, 888 n.2 (2017); Thierfelder v. Wolfert, 617 Pa. 295,
324–25, 52 A.3d 1251 (2012); Doe v. Harbor Sch., Inc., 446 Mass. 245, 259 n. 16, 843
N.E.2d 1058 (2006); Darnaby v. Davis, 57 P.3d 100, 103 (Okla. Civ. App. 2002).


                                           11
No. 80639-4-I/12


trained to recognize and counteract the transference phenomenon. Simmons,

805 F.2d at 1365. “The proper therapeutic response is countertransference, a

reaction which avoids emotional involvement and assists the patient in

overcoming problems.” Simmons, 805 F.2d at 1365. But when a mental health

therapist “mishandles transference and becomes sexually involved with a patient,

medical authorities are nearly unanimous in considering such conduct to be

malpractice.” Simmons, 805 F.2d at 1365. Misuse of transference and therapist-

patient sex is “psychologically deleterious for the involved . . . patient.” Simmons,

805 F.2d at 1365 (quoting Virginia Davidson, Psychiatry’s Problem with No

Name: Therapist-Patient Sex, 37 AM. J. PSYCHOANALYSIS 43, 48-49 (1977)).

       Some courts have concluded that health care providers who provide some

mental health services—not just psychiatrists or mental health therapists—may

also commit malpractice by engaging in a sexual relationship with a patient. For

example, in McCracken v. Walls-Kaufman, the court reasoned that:
       [I]f a medical professional not practicing in the field of mental health
       enters into a relationship of trust and confidence with a patient and
       offers counseling on personal matters to that patient, thus taking on
       a role similar to that of a psychiatrist or psychologist, that
       professional should be bound by the same standards as would bind
       a psychiatrist or psychologist in a similar situation.

717 A.2d 346, 352 (D.C. 1998) (citing Dillon v. Callaway, 609 N.E.2d 424, 428

(Ind. Ct. App. 1993) (holding a plaintiff’s injuries “arose from the rendition of

health care” where their primary care physician mishandled transference and

entered into sexual relationship with them); Shamloo v. Lifespring, Inc., 713 F.

Supp. 14, 17, (D.D.C. 1989) (“[District of Columbia] case law does not hold that




                                          12
No. 80639-4-I/13


an unlicensed purveyor of ‘professional’ psychological services should be

afforded greater protection from claims of negligence or malpractice than a

licensed one.”); Correll v. Goodfellow, 255 Iowa 1237, 1244, 125 N.W.2d 745,

749 (1964) (holding a chiropractor to a medical doctor’s standard of care where

he went outside standard chiropractic techniques and administered ultra-sonic

treatments to plaintiff)). The court thus held that a chiropractor7 could be liable

for medical malpractice if (1) they engaged in sexual acts with a patient,

(2) during their chiropractic treatment of the patient, a relationship like a

psychologist-patient relationship developed, (3) that it breached the applicable

standard of care for the doctor to engage in such acts with their patient, and

(4) that the breach proximately caused the plaintiff’s injuries. McCracken, 717

A.2d at 352–53.

       Similarly, in Darnaby v. Davis, 57 P.3d 100, 106–07 (Okla. Civ. App.

2002), the court held that a general practitioner who treated a patient for mental

health issues could be liable in malpractice for engaging in a sexual relationship

with their patient. The court recognized that transference is a treatment tool

commonly used by psychiatrists and mental health therapists, and where such a

practitioner misuses transference to enter a sexual relationship, they commit

malpractice. Darnaby, 57 P.3d at 106. From such, the court held that, because

transference is a form of treatment, if transference “was wielded and mishandled



       7
         While we view McCracken as helpful to our analysis, we note that we limit our
holding to primary care physicians who treat mental health issues. We observe that,
unlike the defendant chiropractor in McCracken, mental health lies within the typical
range of care for a primary care physician like Whitemarsh.


                                          13
No. 80639-4-I/14


not by a psychologist, psychiatrist, or other therapist, but by a general practitioner

who, through [their] actions effectively took on the role of a mental health care

provider,” that a general practitioner could also be liable in malpractice. Darnaby,

57 P.3d at 106.

       By some contrast, in Thierfelder v. Wolfert, 617 Pa. 295, 341, 52 A.3d

1251 (2012), the Pennsylvania Supreme Court concluded that primary care

physicians who provide mental health services have no absolute duty to refrain

from sexual relationships with patients. But the case apparently leaves the door

open for malpractice liability for such conduct in some instances.

       As to the legal question before us, guided by the authorities discussed

above, we conclude that a primary care physician who provides mental health

services to a patient may be liable in malpractice for injuries arising from the

doctor’s sexual relationship with that patient. Such liability may attach when, in

the course of such treatment, transference and a mishandling of that

transference occurs, causing injuries as a result of health care under the

meaning of RCW 7.70. Given this conclusion, we next address the Messengers’

argument that they have established a genuine issue of fact on whether

Whitemarsh breached his duty to Monique.

       3.     Evidence of breach of duty

       It is undisputed that Whitemarsh had been Monique’s doctor for at least

several years before he began a sexual relationship with her. And as discussed

above, medical records show that, as early as 2012, Monique shared with

Whitemarsh intimate, personal details of her life, including her depression and


                                         14
No. 80639-4-I/15


marital problems. According to Monique, Whitemarsh counseled her for

postpartum depression and offered to prescribe her antidepressants. Their

sexual relationship arose out of this purported therapeutic milieu in which

Whitemarsh arguably held a position of trust and confidence.

       Furthermore, the Messengers submitted a declaration from Howard B.

Miller, MD, in support of their claim. The trial court struck the declaration

because it considered the question before it purely legal, and not factual. The

Messengers argue the trial court erred in striking the declaration. We review de

novo evidentiary rulings made in summary judgment proceedings. Parks, 173

Wn. App. at 375.

       Expert testimony typically establishes the applicable standard of care in a

medical malpractice action. Reagan v. Newton, 7 Wn. App. 2d 781, 790–91, 436

P.3d 411 (2019). “The expert testimony must establish what a reasonable

medical provider would or would not have done under the circumstances, that the

defendant failed to act in that manner, and that this failure caused the plaintiff’s

injuries.” Reagan, 7 Wn. App. 2d at 791. In the absence of such expert

testimony, the defendant is entitled to summary judgment. Reagan, 7 Wn. App.

2d at 791.

       In his declaration, Miller asserted that Whitemarsh breached the

applicable standard of care by engaging in a sexual relationship with Monique.

Miller claimed that Whitemarsh gained familiarity with the intimate details of the

lives of Monique, Kevin, and their children, and exploited the confidence he

earned with Monique “to create a situation of influence and unequal power over


                                          15
No. 80639-4-I/16


her which he used in a manner that resulted in the sexual relationship.” Miller

also asserted that Whitemarsh risked worsening Monique’s mental health issues

by engaging in a sexual relationship with her while counseling her for depression

and caused her harm by doing so. Miller’s declaration establishes what a

reasonable medical provider would not have done under the circumstances, and

that Whitemarsh failed to act in that manner, causing Monique’s injuries. The

trial court erred in striking the whole declaration, much of which provides proper

expert opinion on factual matters.8

       When viewing the evidence provided—including Miller’s declaration, the

fact that Whitemarsh provided Monique mental health treatment, and the

undisputed fact that a sexual relationship occurred between the two in the light

most favorable to the Messengers—one could reasonably find that transference

occurred, leading to their sexual relationship. The Messengers have established

a genuine issue of material fact as to whether Whitemarsh breached the

applicable standard of care by engaging in a sexual relationship with Monique.

       In sum, we conclude that a sexual relationship between a patient and a

primary care physician who provides mental health treatment may constitute

malpractice. We also conclude that the Messengers established a genuine issue

of material fact that Whitemarsh provided Monique with mental health treatment


       8
         The Estate argues that the trial court properly struck Miller’s declaration
because Washington law does not recognize liability for sexual relationships between
doctors and patients. But this runs contrary to our analysis above regarding primary
care physicians. The Estate also argues the trial court properly struck the declaration
because it includes inadmissible testimony from Monique that Whitemarsh provided her
with mental health treatment. But as we conclude above, Monique’s testimony is
admissible if it contradicts her medical records.


                                          16
No. 80639-4-I/17


and that the Messengers established a genuine issue of material fact that

Whitemarsh breached the applicable standard of care.9 For these reasons, we

reverse the summary judgment ruling for the Estate and remand for further

proceedings consistent with this opinion.10

       The panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder

having no precedential value will be filed for public record under RCW 2.06.040,

it is so ordered.

                               Unpublished Text Follows

   C. Negligence Claims Against MultiCare

       The Messengers argue the trial court erred in dismissing on summary

judgment their negligent hiring or retention and negligent training or supervision

claims against MultiCare. We disagree.

       An employer may be liable for the torts committed by employees who act

outside the scope of their employment if the employer is negligent in hiring or

retention or negligent in training or supervision. Evans v. Tacoma Sch. Dist.

No. 10, 195 Wn. App. 25, 47, 380 P.3d 553 (2016).11


       9 In their reply brief, the Messengers also argue that by threatening to kill
Monique and Kevin, Whitemarsh breached his duty under RCW 7.70. But an issue
raised and argued for the first time in a reply brief is too late to warrant consideration.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Thus, we do not consider the Messengers’ argument that the threats constituted breach.
       10
          Because we reverse the grant of the Estate’s summary judgment motion, we
need not consider whether the trial court erred in denying the Messengers’ motion to
continue the summary judgment hearing as to the Estate.
       11
          The trial court dismissed the plaintiffs’ vicarious liability claim. The
Messengers do not argue here that Whitemarsh committed torts within the scope of his
employment.


                                            17
No. 80639-4-I/18


       In support of their negligence claims, the Messengers point to a 2006

complaint against Whitemarsh. The complaint led to an investigation by the

Medical Quality Assurance Commission (MQAC). MQAC concluded no proof

showed that Whitemarsh violated any professional rules or regulations and thus

deemed professional discipline unnecessary.12

       The Messengers also claim that Whitemarsh had a romantic relationship

with one of his coworkers, who once saw Monique and Whitemarsh together at

the clinic after hours. Whitemarsh and the coworker also wrote each other

prescriptions. The coworker stated in a Facebook message to Monique that she

would not have reported Whitemarsh had she discovered Monique and

Whitemarsh’s relationship, though later in her deposition, she said she would

report it if she found out a health care provider had an inappropriate relationship

with a patient.13 The Messengers also note that Monique alleged, in a portion of

her declaration stricken by the trial court on grounds of the dead man’s statute,

that Whitemarsh made sexual comments to her in the presence of his medical

assistant. From such, they claim that MultiCare fostered a “culture of

impropriety.”




       12
         The record does not include the patient complaint. But it includes a letter to
Whitemarsh from MQAC closing the investigation.
      13
         The following is an excerpt from Monique and the MultiCare employee’s
Facebook communications:
      Monique: I often asked him if you were such good friends and nothing
      more, why he wouldn’t share [the fact of our relationship] with you. He said
      he was afraid of losing his job.
      [MultiCare employee]: Shit. Like I would do that. He knew better[.]


                                           18
No. 80639-4-I/19


       Finally, the Messengers claim that MultiCare offered no evidence that it

provides training to its employees on sexual misconduct. The Messengers do

not make clear which evidence supports which negligence claim.

       1. Negligent hiring or retention

       An employer may be liable for negligent hiring or retention when they fail

to exercise ordinary care by hiring or retaining an employee known to be unfit.

Evans, 195 Wn. App. at 46. “[T]o hold an employer liable for negligently hiring or

retaining an employee who is incompetent or unfit, a plaintiff must show that the

employer had knowledge of the employee’s unfitness or failed to exercise

reasonable care to discover the unfitness before hiring or retaining the

employee.” Anderson v. Soap Lake Sch. Dist., 191 Wn.2d 343, 356, 423 P.3d

197 (2018). “Negligent hiring occurs at the time of hiring, while negligent

retention occurs during the course of employment.” Anderson, 191 Wn.2d at

356.

       MultiCare claims it did not know of the 2006 patient complaint filed against

Whitemarsh until after his death. The Messengers assert MultiCare knew or

should have known about the complaint, since it was a “publicly available

complaint made to the Board of Health.” The Messengers reference neither the

record nor the law to support this assertion. Nor do they provide the complaint,

which is not in the record. Monique and Miller’s declarations assert the complaint

regards alleged sexual misconduct, but their assertions lack adequate factual

support. Guile v. Ballard Comty. Hosp., 70 Wn. App. 18, 25, 851 P.2d 689

(1993) (“Affidavits containing conclusory statements without adequate factual


                                          19
No. 80639-4-I/20


support are insufficient to defeat a motion for summary judgment.”); see also

Seven Gables Corp v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)

(“A nonmoving party in a summary judgment may not rely on speculation . . . or

in having its affidavits considered at face value.”). The letter from MQAC closing

the 2006 investigation reveals nothing regarding the substance of the complaint

or otherwise show that MultiCare knew Whitemarsh was unfit or that MultiCare

failed to exercise reasonable care to discover his unfitness. No evidence shows

that MultiCare knew or should have known about the complaint.

       Neither do the facts supporting the Messengers’ assertion that MultiCare

fostered a “culture of impropriety” establish that MultiCare knew of Whitemarsh’s

unfitness or failed to use reasonable care to discover it.

       First, since Monique’s testimony about Whitemarsh making sexual

comments to her in the presence of his medical assistant concerns a transaction

with Whitemarsh, and does not rebut the contents of her medical records, it

appears to have been properly stricken on grounds of the dead man’s statute.

       Second, even if all the evidence of the “culture of impropriety” were

admissible, an employee’s knowledge of their fellow employee’s characteristics

of unfitness cannot be imputed to the employer unless the employee has a duty

to report such knowledge. See Peck v. Siau, 65 Wn. App. 285, 291–292, 827

P.2d 1108 (1992) (concluding that a teacher’s knowledge of a fellow educator’s

inappropriate contact with a student would not be imputed to the school district,

where the teacher had no supervisory authority over the educator or any

administrative responsibilities for the district). Here, the Messengers have not


                                         20
No. 80639-4-I/21


established that the employees at issue had such a duty, so even assuming their

knowledge demonstrated Whitemarsh’s unfitness, we cannot impute such

knowledge to MultiCare.

       Finally, the Messengers assert that MultiCare presented no evidence of

training provided to employees to prevent sexual misconduct. But this does not

demonstrate that MultiCare knew or failed to exercise reasonable care to

discover Whitemarsh’s unfitness. The assertion also ignores that the

Messengers bear the burden of proof on their claim. The negligent hiring or

retention claim fails.

       2. Negligent training or supervision

       To establish a claim for negligent training or supervision, the Messengers

must show that MultiCare knew, or should have known in the exercise of

reasonable care, that Whitemarsh posed a risk to others, and that MultiCare’s

failure to supervise proximately caused their loss. Garrison v. Sagepoint Fin.,

Inc., 185 Wn. App. 461, 484, 345 P.3d 792 (2015).

       Washington courts rely on the RESTATEMENT (SECOND) OF TORTS (1965) to

determine whether an employer knew or should have known in the exercise of

reasonable care that an employee posed a risk to others:
       “ ‘A master is under a duty to exercise reasonable care so [as] to
       control [their] servant while acting outside the scope of [their]
       employment as to prevent [them] from intentionally harming others
       or from so conducting [themselves] as to create an unreasonable risk
       of bodily harm to them, if
           (a) the servant
              (i) is upon the premises in possession of the master or upon
              which the servant is privileged to enter only as [their] servant,
              or


                                         21
No. 80639-4-I/22


             (ii) is using a chattel of the master, and
          (b) the master
             (i) knows or has reason to know that [they have] the ability to
             control [their] servant, and
             (ii) knows or should know of the necessity and opportunity for
             exercising such control.’ ”

Anderson, 191 Wn.2d at 363 (internal quotation marks omitted) (quoting Niece v.

Elmview Group Home, 131 Wn.2d 39, 51, 929 P.2d 420 (1997) (quoting Peck, 65

Wn. App. at 294 (quoting RESTATEMENT (SECOND) OF TORTS § 317 (1965))).

Washington courts interpret the knowledge element “to require a showing of

knowledge of the dangerous tendencies of the particular employee.” Anderson,

191 Wn.2d at 364.

      As mentioned above, the 2006 complaint is not in record. Without

evidence of the complaint’s substance, it does not establish a genuine issue of

material fact as to whether MultiCare should have known of Whitemarsh’s

dangerous tendencies. And as addressed above, Monique and Miller’s

assertions in their declarations about the complaint’s substance lack adequate

factual support. And the letter from MQAC closing the 2006 investigation—which

does not disclose the complaint—does not tend to show that MultiCare knew or

should have known that Whitemarsh had any dangerous tendencies.

      The Messengers argue that a “culture of impropriety” at the clinic enabled

Messenger’s actions, relying heavily on Whitemarsh’s personal relationship with

a fellow employee. But no evidence shows this employee had contemporaneous

knowledge of the affair or the prior complaint against Whitemarsh. The fact that

the employee witnessed Whitemarsh and Monique together after hours does not



                                        22
No. 80639-4-I/23


establish that she knew of an inappropriate relationship between the two. And a

romantic relationship between Whitemarsh and the MultiCare employee—if it

existed—would differ wholly from a sexual relationship between Whitemarsh and

a patient. Finally, that the two wrote each other prescriptions has no bearing on

whether she knew of Whitemarsh’s dangerous tendencies. Thus, no evidence

shows she had any knowledge of Whitemarsh’s dangerous tendencies.

           Even so, as in our analysis of the Messengers’ negligent hiring or

retention claim, we do not impute this employee’s knowledge of any dangerous

tendencies to MultiCare. See Peck, 65 Wn. App. at 293 (holding likewise that an

employee’s knowledge of a fellow employee’s dangerous tendencies cannot be

imputed to the employer without a demonstration of duty to report). The same is

true of any inappropriate comments Whitemarsh may have made to Monique in

the presence of his medical assistant, were such testimony admissible.

           Finally, that MultiCare offered no evidence of an anti-sexual misconduct

training program is not reason to decide against it on summary judgment, since

the Messengers bear the burden of proving that MultiCare negligently supervised

or trained its employees.

           We conclude that the Messengers have not established a genuine issue of

material fact as to whether MultiCare knew or should have known of

Whitemarsh’s dangerous tendencies. The negligent training or supervision claim

fails.14

           14
         The Messengers also submitted Miller’s declaration to support their negligence
claims. But the declaration does not advance either of the claims. The declaration
alleges MultiCare knew or should have known of the 2006 complaint against


                                            23
No. 80639-4-I/24


   D. Motion to Continue

       The Messengers argue the trial court erred when it denied their motion to

continue the summary judgment hearing. We disagree.

       The Messengers filed their lawsuit in March 2017. Just over a year later,

the Messengers moved to continue the summary judgment hearing. The

Messengers claimed they needed more time to depose Whitemarsh’s widow,

supervisor, co-worker, father-in-law, the sheriff’s deputies who responded to

Whitemarsh’s suicide, other patients, a MultiCare corporate representative under

CR 30(b)(6), and Department of Health complaint investigators. They also

sought more document production from Whitemarsh’s widow.

       A trial court may continue a summary judgment hearing where:
       Should it appear from the affidavits of a party opposing the motion
       that for reasons stated, [they] cannot present by affidavit facts
       essential to justify [their] opposition, the court may refuse the
       application for judgment or may order a continuance to permit
       affidavits to be obtained or depositions to be taken or discovery to be
       had or may make such other order as is just.

CR 56(f).

       We review for abuse of discretion a trial court’s CR 56(f) ruling. Mut. of

Enumclaw Ins. Co. v. Patrick Archer Constr., Inc., 123 Wn. App. 728, 743–44, 97


Whitemarsh. But as addressed above, the complaint’s absence from the record
prevents us from concluding that its existence, or Monique or Miller’s assertions about its
contents, establish a genuine issue of material fact as to whether MultiCare knew or
should have known of Whitemarsh’s dangerous tendencies. The declaration also
argues that if the MultiCare employee who saw Monique with Whitemarsh at the clinic
after hours had known of the 2006 complaint, she would have reported Whitemarsh.
Such speculation does not suffice to establish a genuine issue of material fact as to
whether MultiCare knew or should have known of Whitemarsh’s dangerous tendencies.
See Cho v. City of Seattle, 185 Wn. App. 10, 20, 341 P.3d 309 (2014) (“In order to
preclude summary judgment, an expert’s affidavit must include more than mere
speculation or conclusory statements.”).


                                            24
No. 80639-4-I/25


P.3d 751 (2004). A trial court abuses its discretion if it bases its decision on

untenable grounds or reasons. West v. Seattle Port Comm’n, 194 Wn. App. 821,

834, 380 P.3d 82 (2016).

       A judge properly denies a CR 56(f) motion if “(1) the moving party does

not offer a good reason for the delay in obtaining the evidence; (2) the moving

party does not state what evidence would be established through the additional

discovery; or (3) the evidence sought will not raise a genuine issue of fact.”

West, 194 Wn. App. at 833–34.

       The Messengers blame the opposing parties’ delays in making

Whitemarsh’s supervisor and widow available for depositions as their reason for

delay in obtaining such evidence. The Messengers give no similar reason for

their failure to obtain the other evidence cited in their motion to continue.

       The Messengers argue Whitemarsh’s supervisor’s testimony would be

relevant to their negligent supervision claim because he supervised Whitemarsh

and because he had a personal friendship with Whitemarsh. They claim his

deposition could help establish MultiCare’s training or supervision polices related

to sexual relationships with patients and coworkers. The Messengers do not

state what evidence a deposition of Whitemarsh’s widow would establish.

       As for the supervisor, the Messengers assert that the evidence they seek

to obtain “would have raised a genuine issue of fact as to what MultiCare knew or

should have known regarding [Whitemarsh’s] pervasive misconduct.” While such

discovery could unearth relevant evidence, this assertion fails to articulate how

the evidence would establish a genuine issue of material fact related to their


                                          25
No. 80639-4-I/26


causes of action. Whitemarsh’s supervisor might have more information about

MultiCare’s policies, and about Whitemarsh’s relationship with Monique. If he

did, it is unclear that such information would establish a genuine issue of material

fact as to their negligence claims.

       Even when accepting at face value the Messengers’ assertion that good

cause existed for the delay in obtaining the depositions of Whitemarsh’s

supervisor and widow, the Messengers fail to state what evidence would be

established by the additional discovery. Neither do they state whether such

evidence would establish a genuine issue of material fact. For the other

evidence that the Messengers seek, they give no good reason for the year-long

delay. Thus, we conclude the trial court did not abuse its discretion in denying

their motion.

                                 III. CONCLUSION

       We conclude that that a primary care physician who provides mental

health services to a patient may be liable for malpractice for injuries arising from

the doctor’s sexual relationship with that patient. We also conclude that the

Messengers established a genuine issue of material fact as to whether

Whitemarsh provided Monique with mental health treatment, and as to whether

Whitemarsh breached the applicable standard of care by engaging in a sexual

relationship with Monique. We additionally conclude that the trial court properly

dismissed the Messengers’ negligent hiring or retention and negligent training or

supervision claims against MultiCare. Finally, we conclude that the trial court did




                                         26
No. 80639-4-I/27


not abuse its discretion in denying the Messengers’ motion to continue the

summary judgment hearing.

      We affirm in part and reverse in part.




WE CONCUR:




                                       27
