                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                          March 5, 2019



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 DENISE REAGAN,                                                      No. 50662-9-II

                                Appellant,
                                                                PUBLISHED OPINION
        v.

 ST. ELMO NEWTON, III, M.D.,

                                Respondent.


       MAXA, C.J. – Denise Reagan appeals the trial court’s dismissal on summary judgment of

a medical malpractice lawsuit she filed against Dr. St. Elmo Newton. Reagan alleges that Dr.

Newton injured her while conducting an independent medical examination (IME) on her. The

trial court granted summary judgment in favor of Dr. Newton because Reagan did not present

expert testimony that Dr. Newton violated the standard of care as required to maintain a medical

malpractice action under chapter 7.70 RCW. The court also disregarded without comment

Reagan’s medical battery claim that she had not pleaded but had raised in opposition to summary

judgment.

       RCW 7.70.010 states that the substantive and procedural requirements of chapter 7.70

RCW, the medical malpractice statute, apply to actions regarding injuries “occurring as a result

of health care.” RCW 7.70.030, which establishes the grounds for a medical malpractice claim,

also applies to injuries “occurring as the result of health care.” The primary question here is

whether a physical examination during an IME that causes injury to the person being examined
No. 50662-9-II


constitutes “health care” governed by chapter 7.70 RCW. In addition, a question exists whether

a person injured during an IME also can maintain a common law medical battery claim against

the IME physician.

        We hold that (1) a physical examination during an IME that causes injury to the person

being examined constitutes “health care” under RCW 7.70.010 and therefore Reagan was

required to present expert testimony regarding breach of the standard of care, (2) the trial court

properly dismissed Reagan’s medical malpractice claim against Dr. Newton because she did not

present expert testimony addressing the applicable standard of care or whether Dr. Newton had

breached that standard of care, and (3) Reagan can maintain a claim for medical battery under

CR 15(b) even though she did not plead that claim and Reagan presented evidence in opposition

to summary judgment that created a genuine issue of material fact regarding Dr. Newton’s

liability for medical battery.

        Accordingly, we affirm the trial court’s dismissal of Reagan’s medical malpractice claim,

but we reverse the trial court’s dismissal of Reagan’s medical battery claim and remand for

further proceedings.

                                              FACTS

        In June 2013, Reagan injured her back while in the course of her employment. She filed a

workers’ compensation claim with the Department of Labor and Industries (DLI). DLI accepted

Reagan’s claim for injuries to her thoracic and cervical regions.

        DLI subsequently requested that Reagan undergo an IME. The IME’s purpose was to

determine Reagan’s current work restrictions, if she could return to work, if her treatment had

concluded, and whether she had a permanent impairment as a result of the injury. DLI also

requested that the IME provider make treatment recommendations, including stating whether




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No. 50662-9-II


treatment was curative or rehabilitative, the goals of treatment, and the estimated length and

prognosis of treatment.

       In May 2014, Dr. Newton, an orthopedic physician, and Dr. Dennis Chong, a physiatrist,

performed Reagan’s IME. Reagan’s sister-in-law, Lisa Wilson, accompanied her to the

examination and remained in the room throughout the exam.

       Reagan told Dr. Newton that she had a previous injury to her left hip. During his

physical examination, Dr. Newton had Reagan lie on her back. He then bent her left knee toward

her chest and rotated her bent knee from the hip joint. Reagan told Dr. Newton that her hip

would not rotate any further because of her previous injury, but Dr. Newton pushed her leg all

the way down. Reagan screamed in pain, and Dr. Newton stated, “That was the reaction I was

looking for.” Clerk’s Papers (CP) at 110. Wilson also recalls Reagan telling Dr. Newton “that’s

as far as it goes” before he “yanked” on her leg, Regan crying out in pain, and Dr. Newton

commenting about Reagan’s reaction. CP at 113-114. As a result of this maneuver, Reagan

experienced excruciating pain in her hip. Wilson, who drove Reagan home, stated that Reagan

continued to experience pain and discomfort after the IME concluded.

       Reagan subsequently filed a lawsuit against Dr. Newton in which she alleged that his

negligence in manipulating her hip during the IME caused her injury. The complaint requested a

judgment against Dr. Newton for damages suffered as a result of his negligence. The complaint

did not assert a claim for medical battery.

       Dr. Newton moved for summary judgment on liability. Specifically, he claimed that

Reagan had failed to present expert testimony required to support a claim under RCW

7.70.030(1) that he had breached the appropriate standard of care during his examination of

Reagan.




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No. 50662-9-II


       Reagan opposed the summary judgment motion, claiming that chapter 7.70 RCW did not

apply to her claim because Dr. Newton was not providing “heath care” during the IME. She also

asserted in her brief that she could recover under a theory of medical battery.

       Reagan submitted declarations from Dr. Bruce Blackstone, who saw her for a subsequent

IME in January 2015, and from Dr. Mark Colville, who performed her original hip surgery. Dr.

Blackstone characterized Reagan’s “acute onset of left hip pain that occurred during the IME of

May 13, 2014” as “an aggravation of pre-existing arthritis, which is actually attributable to her

work-related injury suffered back in 2008.” CP at 127-28. Dr. Colville also attributed the left

hip pain to “the manipulation performed during her independent medical exam [of May 2014],”

finding that it had “aggravated a preexisting osteoarthritic condition of the left hip.” CP at 142.

But neither physician offered any opinion regarding the appropriate standard of care or whether

Dr. Newton followed that standard of care during the IME.

       Dr. Newton’s reply brief did not mention medical battery. But the parties addressed the

claim on the merits during oral argument, and Dr. Newton did not argue that the trial court

should not consider the medical battery claim because it had not been pleaded. The court did not

address medical battery during argument or in its summary judgment order.

       The trial court granted summary judgment in favor of Dr. Newton and dismissed

Reagan’s claims. Reagan appeals the trial court’s summary judgment order.

                                            ANALYSIS

A.     SUMMARY JUDGMENT STANDARD

       Our review of a dismissal on summary judgment is de novo. Frausto v. Yakima HMA,

LLC, 188 Wn.2d 227, 231, 393 P.3d 776 (2017). We review all evidence and reasonable

inferences in the light most favorable to the nonmoving party. Keck v. Collins, 184 Wn.2d 358,




                                                 4
No. 50662-9-II


368, 357 P.3d 1080 (2015). We may affirm an order granting summary judgment if there are no

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

Id. at 370; CR 56(c). A genuine issue of material fact exists if reasonable minds could disagree

on the facts controlling the outcome of the case. Sutton v. Tacoma Sch. Dist. No. 10, 180 Wn.

App. 859, 864-65, 324 P.3d 763 (2014).

       The party moving for summary judgment has the initial burden to show there is no

genuine issue of material fact. Zonnebloem, LLC v. Blue Bay Holdings, LLC, 200 Wn. App. 178,

183, 401 P.3d 468 (2017). A moving defendant can meet this burden by showing that there is an

absence of evidence to support the plaintiff’s claim. Id. Once the defendant has made such a

showing, the burden shifts to the plaintiff to present specific facts that show a genuine issue of

material fact. Id. Summary judgment is appropriate if a plaintiff fails to show sufficient

evidence to establish the existence of an essential element on which he or she will have the

burden of proof at trial. Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins.

Co., 176 Wn. App. 168, 179, 313 P.3d 408 (2013).

B.     APPLICABILITY OF MEDICAL MALPRACTICE STATUTE

       Reagan argues that the medical malpractice statute, chapter 7.70 RCW, does not apply

here because an IME does not involve “health care.” We disagree.

       1.    Legal Background

       Chapter 7.70 RCW modified “certain substantive and procedural aspects of all civil

actions and causes of action, whether based on tort, contract, or otherwise, for damages for injury

occurring as a result of health care.” RCW 7.70.010 (emphasis added). Chapter 7.70 RCW

exclusively governs any action for damages based on an injury resulting from health care. Fast

v. Kennewick Pub. Hosp. Dist., 187 Wn.2d 27, 34, 384 P.3d 232 (2016).




                                                 5
No. 50662-9-II


       Chapter 7.70 RCW does not define the phrase “health care.” Beggs v. Dept. of Soc. &

Health Servs., 171 Wn.2d 69, 79, 247 P.3d 421 (2011). RCW 7.70.020 defines “health care

provider” to include not only physicians but also a wide variety of persons “licensed by this state

to provide health care or related services.” RCW 7.70.020(1).

       To recover damages for “injury occurring as the result of health care,” a plaintiff must

establish at least one of three propositions:

       (1) That injury resulted from the failure of a health care provider to follow the
       accepted standard of care;
       (2) That a health care provider promised the patient or his or her representative that
       the injury suffered would not occur;
       (3) That injury resulted from health care to which the patient or his or her
       representative did not consent.

RCW 7.70.030 (emphasis added).

       For a damages claim based on a health care provider’s failure to follow the accepted

standard of care under RCW 7.70.030(1), a plaintiff must prove both that the health care provider

“failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health

care provider” and that such failure was a proximate cause of the plaintiff's injuries. RCW

7.70.040(1).

       In a medical malpractice action, the applicable standard of care generally must be

established by expert testimony. Reyes v. Yakima Health Dist., 191 Wn.2d 79, 86, 419 P.3d 819

(2018). 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. Keck, 184 Wn.2d at 371. If the plaintiff lacks expert

testimony regarding one of the required elements, the defendant is entitled to summary judgment

on liability. Reyes, 191 Wn.2d at 86.




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No. 50662-9-II


       2.    IME as “Health Care”

       The provisions of the medical malpractice statute apply only to injuries occurring as the

result of “health care.” RCW 7.70.010; RCW 7.70.030. The question here is whether a

physician’s physical examination during an IME that causes injury to the person being examined

constitutes “health care.”

            a.    Definition of “Health Care”

       As noted above, chapter 7.70 RCW does not define the term “health care.” Beggs, 171

Wn.2d at 79. Normally, we would engage in a statutory interpretation analysis to determine and

give effect to the legislature’s intent. See Gray v. Suttell & Assocs., 181 Wn.2d 329, 339, 334

P.3d 14 (2014). However, the Supreme Court and several Court of Appeals decisions have

adopted the following definition of “health care” for purposes of the medical malpractice statute:

“ ‘[T]he process in which [the physician] was utilizing the skills which he had been taught in

examining, diagnosing, treating or caring for the plaintiff as his patient.’ ” Beggs, 171 Wn.2d at

79 (second alteration in original) (quoting Estate of Sly v. Linville, 75 Wn. App. 431, 439, 878

P.2d 1241 (1994)); see also Berger v. Sonneland, 144 Wn.2d 91, 109, 26 P.3d 257 (2001);

Branom v. State, 94 Wn. App. 964, 969-70, 974 P.2d 335 (1999).

       This definition is consistent with one dictionary’s definition of “health care” as “ ‘[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 professions.’ ” Berger, 144

Wn.2d at 109 (alteration in original) (quoting THE AMERICAN HERITAGE DICTIONARY 833 (3d ed.

1992)); see also Beggs, 171 Wn.2d at 79 (stating that the definition of “health care” the court

adopted is consistent with “a common dictionary definition”).




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No. 50662-9-II


       Courts have interpreted “injuries resulting from health care” under RCW 7.70.010 to

encompass scenarios not involving traditional patient care. Berger, 144 Wn.2d at 110 (a

physician’s unauthorized disclosure of confidential patient information to the patient’s ex-

husband); Branom, 94 Wn. App. at 970-71 (financial and emotional distress injuries to parents

arising from a physician’s alleged failure to inform them of their infant’s medical condition even

though the physician did not treat the parents).

       On the other hand, courts have declined to hold that other types of claims against

physicians involved “injuries resulting from health care.” Young v. Savidge, 155 Wn. App. 806,

821-23, 230 P.3d 222 (2010) (dentist’s intentional misrepresentation regarding the composition

of a crown he installed); Estate of Sly, 75 Wn. App. at 440 (physician’s misrepresentation to a

patient regarding his opinion of the quality of the care the patient had previously received from

the physician’s colleague).

            b.    Examining and Diagnosing

       The first part of the definition of “health care” requires that the physician utilize his or

her learned skills regarding examination, diagnosis, treatment, or care. Beggs, 171 Wn.2d at 79.

Here, Dr. Newton was utilizing his medical skills to examine Reagan. His alleged negligence

occurred during his physical examination of Reagan’s hip. A physician’s physical examination,

even during an IME, falls squarely within the first part of the “health care” definition.

       Reagan argues that an IME does not meet the definition of “health care” because an IME

physician does not provide treatment or any services to the person undergoing the IME. Instead,

the physician performs the IME on behalf of and for the benefit of DLI. Reagan points out that

the interests of the worker and the IME examiner often are adversarial because the physician’s

duty is to DLI, not to the worker. However, providing treatment and patient care are only two of




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No. 50662-9-II


the disjunctive aspects of “health care.” Dr. Newton was engaged in another aspect –

examination.

       Reagan also argues that the medical malpractice statute is in derogation of the common

law and must be construed narrowly, citing Sherman v. Kissinger, 146 Wn. App. 855, 865-66,

195 P.3d 539 (2008). But as noted above, we do not need to engage in statutory construction

because the Supreme Court has adopted a definition of “health care.” Beggs, 171 Wn.2d at 79.

       We conclude that Dr. Newton’s physical examination of Reagan during the IME satisfied

the first part of the definition of “health care” under the medical malpractice statute.

             c.   Physician-Patient Relationship

       The second part of the definition of “health care” requires that the physician’s skillful

services be provided to the plaintiff “as [the physician’s] patient.” Beggs, 171 Wn.2d at 79.

Based on this language, Reagan argues that physician’s conduct constitutes “health care” only if

the person injured was the physician’s patient. Because the parties acknowledge that Dr. Newton

and Reagan had no traditional physician-patient relationship, Reagan claims that the medical

malpractice statute is inapplicable to injuries occurring during the IME.

       Reagan’s interpretation of the phrase “as the [physician’s] patient” in the definition of

“health care” as requiring a “full” physician-patient relationship is inconsistent with case law

applying RCW 7.70.030(1) to situations not involving such a relationship.

       In Eelbode v. Chec Medical Centers, Inc., the plaintiff filed a medical malpractice action

against a physical therapist who allegedly injured him while conducting a pre-employment

physical. 97 Wn. App. 462, 464-65, 984 P.2d 436 (1999). The defendant argued that a

physician-patient relationship was required to subject a health-care practitioner to liability under

the medical malpractice statute. Id. at 467. This court disagreed, holding that a claim of failure




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No. 50662-9-II


to follow the accepted standard of care under RCW 7.70.030(1) does not require a physician-

patient relationship. Id. The court noted that the weight of authority in other jurisdictions

supported this conclusion. Id. at 468-69.

       The court in Eelbode relied on a case from the Ninth Circuit Court of Appeals that

applied Washington law, Daly v. United States, 946 F.2d 1467 (9th Cir. 1991). Like Eelbode,

Daly involved a pre-employment physical examination. 946 F.2d at 1468. The issue was

whether the examining physician had a duty to inform the plaintiff of abnormalities discovered

during the examination in the absence of a physician-client relationship. Id. The court held that

although the injured person must be a patient to assert a claim under RCW 7.70.030(2) and (3),

there was no such requirement for a general negligence claim under RCW 7.70.030(1). Id. at

1469-70. The court refused to assume that Washington courts would create an exception to

RCW 7.70.030(1) liability for pre-employment physicals.1 Id. at 1470.

       In Judy v. Hanford Environmental Health Foundation, Division Three of this court

agreed with Eelbode and Daly and stated that the medical malpractice statute “extends

malpractice liability beyond traditional physician-patient relationships.” 106 Wn. App. 26, 37,

22 P.3d 810 (2001).

       However, Judy demonstrates that there must be some type of direct connection between a

physician and an injured person for RCW 7.70.030(1) liability to attach. In that case, an

employer retained a physician to determine an employee’s physical capacity to work in her

position based on a functional capacity evaluation performed by another person. Judy, 106 Wn.



1
  Here, the issue is whether an IME physician is subject to the medical malpractice statute for
injuries caused during an IME, and our holding is limited to that issue. We do not address
whether an IME physician who fails to inform the person being examined of abnormalities
discovered during the examination is subject to medical malpractice liability and we express no
opinion on whether Daly was decided properly.


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No. 50662-9-II


App. at 30. The employee filed a medical malpractice claim against the physician because he

failed to advise her that he believed she lacked the physical capacity to work in her position. Id.

at 31.

         After noting the rule that no physician-patient relationship was required for RCW

7.70.030(1) liability, the court declined to impose medical malpractice liability on the physician

because he did not conduct an examination or have any contact with the plaintiff. Id. at 37-39.

The court stated:

         There can be no malpractice when there is not only no doctor-patient relationship,
         but no contact, no intent to diagnose, treat or otherwise benefit the patient, no injury
         directly caused by the examination, no failure to diagnose or notify the patient of
         an illness disclosed by the examination, and no dispute as to the accuracy of the
         reported results.

Id. at 39 (emphasis added).

         Here, the IME was similar to the pre-employment physicals in Eelbode and Daly. As in

those cases, the absence of a traditional physician-patient relationship between Dr. Newton and

Reagan does not preclude the application of RCW 7.70.030(1). And unlike in Judy, Dr. Newton

did have a connection with Reagan – he allegedly injured her during his examination.

         Some courts in other jurisdictions have held that despite the absence of a traditional

physician-patient relationship, an IME physician conducting an IME owes a duty not to injure

the person being examined in the actual conduct of the physical examination and is subject to

medical malpractice liability for such an injury. E.g., Dyer v. Trachtman, 470 Mich. 45, 679

N.W.2d 311, 314-17 (2004); Bazakos v. Lewis, 12 N.Y.3d 631, 911 N.E.2d 847, 849-50 (2009);

Harris v. Kreutzer, 271 Va. 188, 624 S.E.2d 24, 31-32 (2006).




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No. 50662-9-II


         The Michigan Supreme Court stated in Dyer that the relationship between the IME

physician and the person being examined “is not the traditional one.” 679 N.W.2d at 314. The

court elaborated:

         It is a limited relationship. It does not involve the full panoply of the physician’s
         typical responsibilities to diagnose and treat the examinee for medical
         conditions. . . . The limited relationship that we recognize imposes a duty on the
         IME physician to perform the examination in a manner not to cause physical harm
         to the examinee.

Id. at 314-15. We agree with this characterization and hold that a person being examined in an

IME is the IME physician’s “patient” with regard to injuries sustained in the physician

examination.

         Reagan makes several arguments against the rule stated in Eelbode that a physician-

patient relationship is not required to assert a claim under RCW 7.70.030(1). First, she argues

that the definition of “health care” clearly states that the plaintiff must be the physician’s patient,

and the meaning of “patient” as one in a physician-patient relationship is unambiguous.

However, “patient” can have a generic meaning as someone who has an interaction with a health

care provider without forming a traditional physician-patient relationship. See RCW

70.02.010(32) (defining “patient” for purposes of another statute as a person who receives heath

care).

         This generic meaning appears to be the way the term is used in the medical malpractice

statute. As the court in Eelbode pointed out, the definition of “health care provider” in RCW

7.70.020(1) includes service providers that do not have formal relationships with the patient,

including opticians, pharmacists, and paramedics. 97 Wn. App. at 467. Those providers would

not be subject to liability under the medical malpractice statute under Reagan’s position, making

their inclusion in the definition of “health care provider” superfluous.




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No. 50662-9-II


       Second, Reagan argues that Eelbode is not controlling because the court did not expressly

address the definition of “health care.” However, the court unequivocally held that no physician-

patient relationship was required for liability under RCW 7.70.030(1). Id. Because RCW

7.70.030 applies only to injuries caused by health care, the court necessarily held that “health

care” does not require a physician-patient relationship.

       Third, Reagan relies on Paetsch v. Spokane Dermatology Clinic. PS, 182 Wn.2d 842, 348

P.3d 389 (2015), and Volk v. DeMeerleer, 187 Wn.2d 241, 386 P.3d 254 (2016). In Paetsch, the

Supreme Court noted that at common law, a plaintiff could not assert a medical malpractice

claim absent a physician-patient relationship. 182 Wn.2d at 850. The court stated that some

courts had “opined that the physician-patient relationship is no longer an element required to

establish medical malpractice,” citing Eelbode and Judy. Id. at 850 n.6. But the court stated that

it did not need to decide the issue under the facts of that case. Id. at 850.

       In Volk, the court again noted the common law rule and stated that a medical malpractice

duty is owed to the physician’s patient. 187 Wn.2d at 254. The court stated that in Paetsch, the

court “previously declined to adopt the view that medical malpractice suits are available to

nonpatient third parties against physicians.” Id.

       However, Paetsch and Volk involved a different issue than the one presented here. In

Paetsch, the defendant was a doctor who had no contact with the plaintiff when she received

treatment at a clinic that he owned. 182 Wn.2d at 845-47. In Volk, the plaintiffs were persons

who filed a lawsuit against a psychiatrist to whom they had no connection for injuries and death

caused by the psychiatrist’s patient. 187 Wn.2d at 246, 250. The court in Judy held that a

physician who had no contact with or connection to the plaintiff could not be liable under the

medical malpractice statute. 106 Wn. App. at 39. But in Eelbode, Daly, and this case, the




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No. 50662-9-II


plaintiffs actually were examined by the defendant even though no physician-patient relationship

was formed.

       Fourth, Reagan argues that an IME should not be considered “health care” because (1)

there is no physician-patient confidentiality between the IME physician and an injured worker,

(2) the physician sends his or her report to DLI and not to the worker’s other health care

providers, and (3) the physician may later testify against the interests of the worker. However,

these factors demonstrate only that there is no physician-patient relationship between an IME

physician and the person being examined. They do not answer whether a physician-patient

relationship is necessary to assert a claim under RCW 7.70.030(1).

       Reagan’s arguments are not persuasive. In addition, her position would be detrimental to

persons undergoing IMEs. As noted above, under the common law a person has no medical

malpractice claim absent a physician-patient relationship. Volk, 187 Wn.2d at 254. Therefore, if

the medical malpractice statute was inapplicable to IMEs, a person negligently injured by an

IME physician’s malpractice would have no remedy.

       3.     Summary

       Dr. Newton utilized his medical skills to examine Reagan. Although Dr. Newton did not

have a traditional physician-patient relationship with Reagan, Reagan was Dr. Newton’s

“patient” in the generic sense that he interacted with and examined her. And he had a limited

relationship with her in that he had a duty not to injure her during his examination. Accordingly,

we hold that Dr. Newton’s IME involved “health care” and therefore that RCW 7.70.030(1)

governed his liability.




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No. 50662-9-II


C.     SUFFICIENCY OF EXPERT TESTIMONY

       Because the medical malpractice statute applies here, Reagan had the burden in

opposition to summary judgment to present evidence establishing a genuine issue of fact that Dr.

Newton failed to follow the accepted standard of care under RCW 7.70.030(1).2 In addition,

Reagan was required to present evidence regarding the accepted standard of care. See RCW

7.70.040(1); Reyes, 191 Wn.2d at 86. Reagan argues that the expert medical testimony from Dr.

Blackstone and Dr. Colville was sufficient to avoid summary judgment. We disagree.

       As noted above, breach of the applicable standard of care generally must be established

through expert testimony. Reyes, 191 Wn.2d at 86. Both Dr. Blackstone and Dr. Colville opined

that the acute onset of Reagan’s left hip pain occurred as a result of Dr. Newton’s manipulation

of the hip during her May 2014 IME. But these opinions focused only on causation. Neither

physician offered any opinion regarding the appropriate standard of care or whether Dr. Newton

followed that standard of care during the IME. Therefore, Reagan’s evidence was insufficient to

sustain a claim under RCW 7.70.030(1) and RCW 7.70.040(1).

       Accordingly, we hold that the trial court did not err in granting summary judgment to Dr.

Newton under RCW 7.70.030(1) because Reagan did not provide the required expert testimony

that Dr. Newton violated the accepted standard of care.

D.     MEDICAL BATTERY CLAIM

       Reagan argues that the trial court erred in dismissing her claim for medical battery

because she presented sufficient evidence to support that claim. Dr. Newton argues that




2
 In the trial court, Reagan argued that Dr. Newton also could be liable under RCW 7.70.030(2)
and (3). However, she does not assign error to the trial court’s dismissal of claims under those
subsections and she does not argue on appeal that she has valid claims under those subsections.
Therefore, we do not address such claims.


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No. 50662-9-II


summary judgment was appropriate because Reagan did not plead battery or any intentional

conduct in her complaint and because the statute of limitations bars the claim. We reject Dr.

Newton’s procedural arguments, and hold that Reagan presented evidence in opposition to

summary judgment that created a genuine issue of material fact regarding Dr. Newton’s liability

for medical battery.

       1.    Legal Principles

       Under existing case law, the medical malpractice statute does not supersede the common

law cause of action for medical battery. Bundrick v. Stewart, 128 Wn. App. 11, 16-17, 114 P.3d

1204 (2005); see also Young, 155 Wn. App. at 821-23.3 A battery is an intentional harmful or

offensive bodily contact with another person. Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481,

504, 325 P.3d 193 (2014). A person is liable for battery if he or she intends to cause a harmful or

offensive contact and such a contact directly or indirectly results. Id. The intent element is

satisfied if a defendant knows to a substantial certainty that his or her actions will result in the

contact. In other words, the requisite intent for battery is to cause an offensive contact, not an

injury. Sutton, 180 Wn. App. at 866.

       A person commits battery only if the person receiving the contact has not consented. See

Kumar, 180 Wn.2d at 505. Therefore, consent is a defense. Morinaga v. Vue, 85 Wn. App. 822,




3
  The holding in Bundrick, which this court cited with approval in Young, seems inconsistent
with the language of RCW 7.70.010. That statute states that the medical malpractice statute
applies to “all civil actions and causes of action, whether based on tort, contract, or otherwise, for
damages for injury occurring as a result of health care.” The Supreme Court has stated,
“ ‘[W]henever an injury occurs as a result of health care, the action for damages for that injury is
governed exclusively by RCW 7.70.’ ” Fast, 187 Wn.2d at 34 (alteration in original) (quoting
Branom, 94 Wn. App. at 969). These cases suggest that medical battery would fall within the
medical malpractice statute if the claim arose from health care. But Dr. Newton does not argue
that medical battery is not a viable claim apart from chapter 7.70 RCW. Therefore, we do not
address this issue.


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No. 50662-9-II


834, 935 P.2d 637 (1997). However, where the plaintiff consents to a medical procedure,

limitations on that consent will be effective if the plaintiff communicates those limitations.

Bundrick, 128 Wn. App. at 18.

       2.    Failure to Assert Claim in Complaint

       Dr. Newton initially argues that Reagan’s complaint failed to assert a medical battery

claim. We agree.

       Under CR 8(a), a complaint must contain “(1) a short and plain statement of the claim

showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which

the pleader deems the pleader is entitled.” This rule allows “notice pleading.” See Champagne

v. Thurston County, 163 Wn.2d 69, 84-87, 178 P.3d 936 (2008). However, the complaint still

must adequately inform the defendant of the nature of the plaintiff’s claims as well as the legal

grounds upon which those claims rest. Kirby v. City of Tacoma, 124 Wn. App. 454, 469-70, 98

P.3d 827 (2004).

       Here, Reagan’s complaint alleged that “[d]uring the course of the examination, [Dr.

Newton] manipulated plaintiff’s hip in a manner that subsequently caused injury.” CP at 2. The

complaint requested a “judgment against [Dr. Newton] for all general and special damages

suffered as a result of [his] negligence.” CP at 2 (emphasis added). The complaint did not assert

a claim for battery or any other intentional tort.

       Reagan claims that the allegations in her complaint were sufficient to assert medical

battery because the allegations were consistent with that claim. However, notice pleading under

CR 8 does not allow a plaintiff to allege only the factual basis in its pleading, leaving the

plaintiff unrestricted as to any particular legal theory. See Pac. Nw. Shooting Park Ass’n v. City

of Sequim, 158 Wn.2d 342, 352, 144 P.3d 276 (2006); Trask v. Butler, 123 Wn.2d 835, 846, 872




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P.2d 1080 (1994). A complaint is insufficient if it fails to give the defendant fair notice of the

claims asserted. Pac. Nw., 158 Wn.2d at 352.

       Reagan asserted only a negligence claim in her complaint. We hold that the complaint

language was insufficient to assert a medical battery claim.

       3.    Application of CR 15(b)

       Reagan argues that even if she did not plead a medical battery claim, the battery claim

was argued by consent of the parties and therefore should be treated under CR 15(b) as if the

claim was raised in her complaint. We agree.

       CR 15(b) states, “When issues not raised by the pleadings are tried by express or implied

consent of the parties, they shall be treated in all respects as if they had been raised in the

pleadings.” In determining whether the parties impliedly tried an issue, we consider the record

as a whole, including whether the issue was mentioned before trial, and the legal and factual

support for the trial court’s conclusions regarding the issue. Dewey v. Tacoma Sch. Dist. No. 10,

95 Wn. App. 18, 26, 974 P.2d 847 (1999). However, “[a] party who does not plead a cause of

action or theory of recovery cannot finesse the issue by later inserting the theory into trial briefs

and contending it was in the case all along.” Id.

             a.   Case Law

       Several cases have addressed situations where a plaintiff raised an unpleaded claim for

the first time in opposition to summary judgment. In Reichelt v. Johns-Manville Corp., the

plaintiff raised a new negligence claim. 107 Wn.2d 761, 767, 733 P.2d 530 (1987). However,

the parties addressed negligence in their briefs and argued the merits of the issue at the summary

judgment hearing, and the trial court ruled on the issue. Id. at 767. The Supreme Court held that




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under CR 15(b), the inadequacies of the plaintiff’s complaint did not preclude an appellate court

from considering the issue. Id. at 768.

       In Denny’s Restaurants Inc. v. Security Union Title Insurance, the plaintiff raised a new

mutual mistake claim. 71 Wn. App. 194, 213-14, 859 P.2d 619 (1993). The defendant

responded to the claim on the merits in its reply. Id. at 213. The trial court also heard oral

argument on the issue, although the defendant did point out at that time that the new issue had

not been raised in the complaint. Id. at 214. On these facts, Division One of this court held that,

“[i]t appears from the record that this issue was essentially litigated before the trial court,” and

therefore the trial court had abused its discretion by not allowing for an amendment of the

complaint under CR 15(b). Id.

       In Dewey, the plaintiff argued for the first time in response to the defense’s motion to

dismiss that termination of his employment violated the First Amendment. 95 Wn. App. at 26.

The defendant’s reply brief did not mention the First Amendment claim, although during oral

argument the defendant argued that the plaintiff had failed to plead that theory of recovery. Id.

The court held that the trial court did not err in ruling that the First Amendment claim was not

tried by implication. Id. The court stated that the defendant’s argument that the plaintiff had

failed to plead a First Amendment theory of recovery did not constitute a trial of the issue. Id.

       In Kirby, the plaintiff raised a new First Amendment claim in opposition to summary

judgment. 124 Wn. App. at 469. The defendant argued at the summary judgment hearing that

the plaintiff had failed to plead a First Amendment theory of recovery. Id. at 471. Only after

this argument did the defendant “hesitantly” argue the claim’s merits. Id. This court refused to

apply CR 15(b). See id. at 470-72. Citing Dewey, the court stated that a defendant’s argument

that the plaintiff failed to plead a claim did not constitute a trial of the issue under CR 15(b).




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Kirby, 124 Wn. App. at 471. Further, the defendant “should not be penalized for attempting a

defense for which it was ill prepared as a result of [the plaintiff’s] procedural failures.” Id.

Finally, the court quoted with approval a Seventh Circuit case: “ ‘A plaintiff may not amend his

complaint through arguments in his brief in opposition to a motion for summary judgment.’ ” Id.

at 472 (quoting Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996).

             b.    Analysis

        Here, Reagan raised medical battery for the first time in her response to Dr. Newton’s

summary judgment motion. She noted that battery involves a nonconsensual touching and stated

that she did not consent to the manipulation of her hip. Dr. Newton did not address medical

battery in his reply brief.

        At oral argument on the summary judgment motion, Dr. Newton did not object to

Reagan’s medical battery claim on the basis that it had not been raised in her complaint. Instead,

he discussed applicable case law and argued that the medical battery theory did not apply to the

facts because Reagan had consented to Dr. Newton’s performance of the IME. Reagan

responded that there was “clearly a question of fact in terms of whether or not there’s a medical

battery here.” Report of Proceedings (RP) at 21. Reagan also pointed out “that the defense

raised nothing in its reply with respect to the medical battery.” RP at 23. In response, Dr.

Newton briefly argued again that there could be no medical battery claim because Reagan had

consented to the IME.

        It is unclear whether or not the trial court considered the medical battery claim. The

court asked no questions during oral argument, took the matter under advisement, and did not

issue an oral ruling. The court later issued a written summary judgment order that dismissed

without comment “[t]he claims asserted by the Plaintiff.” CP at 216.




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       Under Dewey and Kirby, Dr. Newton’s argument on the merits at the summary judgment

hearing does not necessarily preclude him from asserting that CR 15(b) is inapplicable. As this

court noted in Kirby, a defendant should not be penalized for attempting a defense to an

unpleaded claim where the defendant’s lack of preparation is the result of the plaintiff’s

procedural failures. 124 Wn. App. at 471. However, in both of those cases the defendant argued

at the summary judgment hearing that the new claim had not been pleaded in the complaint. Id.;

Dewey, 95 Wn. App. at 26. Even the defendant in Denny’s raised the plaintiff’s failure to plead

the new claim. 71 Wn. App. at 214. Here, Dr. Newton made no such argument and never

objected to addressing the medical battery claim on the merits.

       Based on Dr. Newton’s failure to object to Reagan asserting the medical battery claim

and arguing that claim on the merits, we hold that the summary judgment proceedings amounted

to a trial of the claim by implication under CR 15(b). Accordingly, we apply CR 15(b) and treat

the medical battery claim as if it had been raised in the complaint.

       4.   Statute of Limitations

       Dr. Newton argues that even if we can consider Reagan’s medical battery claim under

CR 15(b), that claim is barred by the statute of limitations. We disagree.

       The statute of limitations for common law battery claims is two years. RCW 4.16.100(1).

Reagan alleges that she was injured on May 13, 2014. She filed her lawsuit against Dr. Newton

on December 14, 2015, well within the statute of limitations. But Dr. Newton points out that

Reagan did not raise the medical battery claim until she filed her summary judgment response on

June 12, 2017, which was more than two years after she filed suit.

       However, CR 15(b) states that if issues are tried by express or implied consent, the issues

“shall be treated in all respects as if they had been raised in the pleadings.” (Emphasis added.)




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No. 50662-9-II


“In all respects” necessarily includes treating the issue as pleaded at the time of the original

complaint for statute of limitations purposes. See Reichelt, 107 Wn.2d at 766-73. Therefore, we

reject Dr. Newton’s statute of limitations argument.

       5.    Summary Judgment on Medical Battery Claim

       Because Reagan’s medical battery claim must be treated as if the claim was raised in the

complaint, we address whether Reagan provided sufficient evidence to avoid summary

judgment. We hold that the trial court erred in dismissing the medical battery claim on summary

judgment.

       Reagan cited her own deposition and Wilson’s declaration to support the conclusion that

Dr. Newton intentionally “yanked,” CP at 114, on Reagan’s leg after she withdrew her consent to

be touched further. Both remember Reagan telling Dr. Newton “that’s as far as it goes” before

he further rotated her leg from the hip, causing Regan to cry out in pain. CP at 114. Both also

recall Dr. Newton then saying something to the effect of, “That’s the response I was looking

for.” CP at 110, 114. This testimony is sufficient to create genuine issues of fact regarding the

existence of an offensive contact, Dr. Newton’s intent to cause that contact, and Reagan’s

withdrawal of any consent to further rotate her hip.

       Dr. Newton raises three brief arguments on the merits of the medical battery claim. First,

he argues that Reagan relies only on her own self-serving testimony that he intentionally injured

her. But a party’s declaration is enough to create a question of fact where her deposition

testimony was based on her personal observations of the defendant’s conduct. Sutton, 180 Wn.

App. at 866. On a summary judgment motion brought by the opposing party, we must treat the

plaintiff’s eyewitness testimony as true, even if it is self-serving. Id.




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       Second, Dr. Newton argues that Reagan consented to the IME and did not show that she

did not consent to his touching of her as required in Bundrick, 128 Wn. App. at 18. But viewed

in the light most favorable to Reagan, both her testimony and Wilson’s testimony support an

inference that Reagan asked Dr. Newton to stop pushing on her hip and thereby withdrew her

consent to that maneuver.

       Third, Dr. Newton argues that Reagan submitted no admissible evidence that he intended

to cause her harm. But both Reagan and Wilson testified that after Reagan cried out in pain, Dr.

Newton stated that he was looking for that response. And as noted above, the requisite intent for

battery is to cause the offensive contact, not the actual harm. Kumar, 180 Wn.2d at 504-05;

Sutton, 180 Wn. App. at 865-66.

       Genuine issues of material fact existed regarding Dr. Newton’s liability for medical

battery. Accordingly, we hold that that the medical battery claim should not have been

dismissed.

                                         CONCLUSION

       We affirm the trial court’s dismissal of Reagan’s medical malpractice claim, but we

reverse the trial court’s dismissal of Reagan’s medical battery claim and remand for further

proceedings.



                                                    MAXA, C.J.
 We concur:



MELNICK, J.



SUTTON, J.



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