             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOE M. ESKRIDGE, MD and                       )      No. 78013-1-I
JUDY Y. ESKRIDGE, husband and                 )
wife,                                         )      DIVISION ONE

                               Appellants,

                 v.
                                              )      UNPUBLISHED OPINION
KELBY DAHMER FLETCHER and,                    )
STOKES LAWRENCE, P.S., a                      )
Washington Professional Service               )
Corporation,

                               Respondents.   )     FILED: June 24, 2019

      SCHINDLER,      J.   —   Dr. Joseph Eskridge appeals summary judgment dismissal of

his legal malpractice lawsuit against attorney Kelby Fletcher and Stokes Lawrence PS.

We affirm.

Employment at Swedish Medical Center

      Dr. Joseph Eskridge is a neuroradiologist who performs neuro endovascular

surgery. Dr. Eskridge began working at the Swedish Medical Center Neuroscience

Institute in 2004. Dr. Eskridge agreed to and signed the terms and conditions of the

Swedish Medical Center (Swedish) “Information Confidentiality and Non-Disclosure
No. 78013-1-112

Agreement” (Information Confidentiality Agreement) in 2004 and every two years

thereafter. The 2012 Information Confidentiality Agreement states, in pertinent part:

       1. I will access, use and disclose minimum confidential information only
           as necessary to perform my job functions. This means, among other
           things, that:
           a.) I will only access, use, and disclose the minimum confidential
           information as authorized to do my job;
           b.) I will not in any way access, use, divulge, copy, release, sell, loan,
           review, alter, or destroy any confidential information except as
           properly and clearly authorized within the scope of my job and in
           accordance with all applicable Swedish policies and procedures and
          with all applicable laws;


       3.   I understand that it is my responsibility to be aware of Swedish
            policies regarding electronic communications and other policies that
            specifically address the handling of confidential information and
            misconduct that warrants corrective disciplinary action.

       5.   I understand that any fraudulent application, violation of confidentiality
            or any violation of the above provisions may result in disciplinary
            action .   . up to and including termination of employment and/or
                           .


            affiliation with Swedish.

The Information Confidentiality Agreement defines “confidential information” as “[p]atient

information (medical records, conversations, demographic information, financial

information).”

       In 2009, Swedish required Dr. Eskridge to engage in and complete a “clinical

corrective action plan.”

Washington Physicians Health Program Evaluation

       In 2013, Madigan Army Medical Center neurologist Dr. Yince Loh worked part

time at the Swedish Neuroscience Institute. On September 10, 2013, Dr. Eskridge

made “crude” and “rude” comments in phone calls and text messages to Dr. Loh. Dr.




                                              2
 No. 78013-1-1/3

 Loh reported the behavior of Dr. Eskridge to Swedish. Dr. Loh believed Dr. Eskridge

was intoxicated.

        On September 13, Swedish medical staff contacted the Washington Physicians

Health Program (WPHP) regarding “multiple episodes” of Dr. Eskridge “lashing out at

other staff,” concerns about intoxication, and the September 10 communications with

Dr. Loh. Swedish suspended Dr. Eskridge’s clinical privileges and directed him to call

WPHP to obtain an assessment.

       Dr. Eskridge met with WPHP psychiatrist Dr. Charles Meredith on September 26.

Dr. Eskridge admitted drinking ‘several glasses of wine” and arguing with Dr. Loh on

September 10. Dr. Eskridge denied any other episodes of “being verbally aggressive.”

However, contrary to Dr. Eskridge’s assertion, Dr. Meredith notes, “The documentation

provided by Swedish indicates there have been a number of such incidents since 2008.”

       Dr. Meredith diagnosed Dr. Eskridge with “[a]lcohol abuse.” Dr. Meredith states

Dr. Eskridge “does admit to what is in my opinion an unhealthy level of alcohol

consumption, although it is not clear that he is dependent.”

       We do have concerns about his alcohol use. Questions have been raised
       on occasion apparently by his wife regarding his alcohol use in the past
       and certainly have recently been raised in his professional environment.
       There are implications that his alcohol use may have negatively impacted
       his behavior in recent stressful interactions with colleagues.

       Dr. Eskridge agreed to participate in mental health treatment and a one-year

monitoring program. At the end of the one-year monitoring period in fall 2014, Dr.

Eskridge told Dr. Meredith that “he still needs to work on ‘diplomacy skills’ with providers

such as the neurologist with whom he had an interpersonal dispute that led to his

referral here.” Dr. Eskridge agreed that “his alcohol intoxication contributed to his



                                             3
No. 78013-1-1/4

situation and he needs to be mindful and conservative in his use if he drinks

recreationally again.”

Letter to Madician

       On April 26, 2015, Dr. Eskridge “contacted the Madigan Command office by

phone.” Dr. Eskridge identified himself as “Dr. Mike” and requested a fax number and

e-mail address. The next day on April 27, Dr. Eskridge sent an unsigned letter by e

mail to the Office of the Army Inspector General. The letter criticizes the treatment Dr.

Loh provided to seven Swedish patients and asserts Dr. Loh engaged in “activities that

violate Army policy and the federal False Claims Act Anti-Kickback Statute.” Dr.

Eskridge identifies the seven patients by “name, medical record number, age,

diagnosis, procedure information including procedure date, and discharge status.”

       The e-mail address Dr. Eskridge used to send the letter contained his name. On

April 28, Madigan personnel called Dr. Eskridge about the letter he sent by e-mail. Dr.

Eskridge “again claimed to be Dr. Mike until he was told that his identity had been

revealed in his email.” Madigan personnel notified “Army Criminal Investigation”

because “Dr. Eskridge’s actions were considered irregular and suspicious.”

      At the request of Dr. Loh, on May 20, Madigan chief of medicine Dr. Jay Erickson

notified Swedish of the assertions Dr. Eskridge made in the letter “so that Swedish

could conduct an internal investigation as deemed appropriate.”

      Dr. Loh requested that I inform you about Dr. Eskridge’s communications
      with Madigan last month. As you may know, Dr. Eskridge sent a report to
      Madigan on April 27, 2015 containing numerous allegations about Dr.
      Loh’s medical care and professional conduct.

      Dr. Eskridge contacted the Madigan Command office by phone on April
      26, 2015 under a false name, identifying himself as Dr. Mike. He
      requested a fax number and email contact from the office secretary. On


                                            4
 No. 78013-1-1/5

            April 27, 2015, he sent an accusatory report about Dr. Loh via email to the
            office secretary. The report was written in an unusual style/format similar
            to a newspaper article. It contained private health information and was
            anonymous. The office secretary determined that the email came from Dr.
            Eskridge because the originating email address contained his name.
            When he was contacted by phone on April 28, 2015 he again claimed to
            be Dr. Mike until he was told that his identity had been revealed in his
            email.

Investigation and Review of Letter Sent to Mad igan

            Madigan conducted an investigation of Dr. Loh. On May 20, Madigan concluded

there were “no substantiated findings of sub-standard care or unprofessional actions by

LTC~11 Loh at Madigan.”

            Swedish hired an “external reviewer” to investigate Dr. Loh’s care of patients.

The external reviewer “found Dr. Loh provided quality care to the patients and no

deficiencies were discovered.”

        On June 4, Swedish placed a “precautionary restriction” on Dr. Eskridge’s

medical staff privileges and notified him that the Professional Behavior Quality Review

Committee and the Medical Executive Committee (MEC) planned to conduct a review of

the letter he sent to Madigan.

        On June 5, the chief of staff at Swedish sent a letter to Dr. Eskridge stating, “[lit

is suspected that you accessed those patient charts without proper authorization” and

“you may have violated [the Health Insurance Portability and Accountability Act of 1996

(HIPAA), Pub. L. 104-191, 110 Stat. 1936,] and Swedish policies by releasing protected

health information to third parties without proper consent.”2 The letter attached a copy

of the Swedish policy on “Integrity, Compliance, Privacy and Security” and the “Levels


        1   Lieutenant Colonel.
       2    HIPAA limits disclosure of protected health information without the patient’s consent. 45 C.F.R.
§ 164.502.

                                                       5
No. 78013-1 -116

of Violation.” The policy states the level of violation is determined “according to the

severity of the violation—Level One” is an unintentional violation, “Level Two” is an

“Intentional Violation Not for Personal Gain or Malice,” and “Level Three” is an

“Intentional Violation for Personal Gain or Malice.”3

        Dr. Eskridge contacted Kelby Fletcher, an employment attorney at Stokes

Lawrence PS (collectively, Fletcher). On June 10, Fletcher and Stokes Lawrence

attorney Thomas Lerner met with Dr. Eskridge. Lerner had experience in representing

medical professionals and institutions. Lerner addressed the consequences of

revocation of medical privileges at Swedish. Lerner told Dr. Eskridge that revocation of

privileges would result in a report to the Washington State Department of Health

Medical Quality Assurance Commission (MQAC) and the National Practitioner Data

Bank.

        On June 15, Fletcher sent “Engagement Terms” and a letter to Dr. Eskridge

confirming Fletcher will represent Dr. Eskridge “in connection with your employment at

Swedish Neurological Institute.”

        On June 23, Swedish privacy officer Tracy Howes and Swedish hospital attorney

Peter Kim interviewed Dr. Eskridge. Fletcher attended the interview. Dr. Eskridge

admitted that he accessed the Swedish medical records of patients with whom he had

no treatment relationship in order to obtain the patient information in the letter to

Mad igan. Dr. Eskridge said he reported his concerns about the care Dr. Loh provided

to patients to the former director of the Swedish Neuroscience Institute Dr. John

Henson. Dr. Eskridge said he sent the letter to Madigan because he “felt” Dr. Henson

did not take any action. When asked why he did not “use any of the Swedish
        ~ Boldface omitted.


                                              6
No. 78013-1-1/7

mechanisms for reporting and addressing substandard care,” Dr. Eskridge said he

“forgot he could report it via eQVR[41 and he didn’t know he could report it to

Compliance.” When asked if any of his cases had been the subject of an internal

investigation, Dr. Eskridge admitted he “may have had one case reviewed.” Contrary to

his assertion, Swedish records showed that between 2005 and 2015, the internal

Cardiovascular Review Committee reviewed over 14 of his cases.

       On July 1, Howes issued a case investigation report to the MEC. The report

states Dr. Eskridge improperly accessed Swedish patient records “outside of any

treatment or Swedish managed or approved clinical quality or performance

improvement process” and “made an unauthorized disclosure of patient information.”

       On July 14, Fletcher sent an e-mail to Dr. Eskridge regarding the “[u]pcoming

MEC action.”

      We will say that you acted in good faith on the reasonable belief that you
      could convey the information to Madigan. I don’t know what the grounds
      are for revocation of your privileges, etc. and that is why I requested the
      by-laws from [Swedish attorney] Ms[.] [Betsy] Vo. There is a hearing
      procedure for Swedish to follow in order for this to occur and it will have
      the burden of proof, if I recall correctly.

      Until we know more about how they want to proceed, we are just
      guessing. It will be the HIP[A]A issue, for sure. And it could involve an
      allegation that you were acting unprofessionally or something of the sort.

       Fletcher told Dr. Eskridge in the e-mail that he would obtain a copy of the

Swedish policies and bylaws. Fletcher sent an e-mail to Dr. Eskridge the next day on

July 15. Fletcher informed Dr. Eskridge, “[Y]ou will have the burden of proving by clear

and convincing evidence that any adverse action against you was arbitrary or

unreasonable.’   “   Fletcher told Dr. Eskridge, “I don’t think you have a winnable

      ~ Electronic quality variance report.


                                               7
 No. 78013-1-1/8

retaliation claim if they press forward on the patient privacy issue.” Fletcher cites the

following Swedish policy provisions:

       At p.[5J 1, an element of the policy is “assuring compliance with all
       applicable state and federal laws, including those providing for the privacy
       and security of protected health information                        .




       At p. 3 a responsibility of a ‘workforce member’ is compliance with
       [Swedish] Code of Conduct, HIPAA regulations and system policies.
       Workforce members “must protect confidential information including      .   .


       PHI [(protected health information)]           .       .




       An example of violation of Integrity, Compliance, Privacy and Security
       (ICPS) functions is a violation of [Swedish] policies. Also on p. 3.

       Another ICPS violation is disclosing patient names for an unauthorized
       purpose. You would contend that the disclosure, you thought, was
       authorized.

       There are various level[s] of violation unintentional, intentional and not
                                                              -


       for personal gain or malice[,] and intentional for personal gain or malice.

       As for the second level, that includes disclosing PHI “when there is no job-
       related need to access, use or disclose.         Here, again, you want to
                                                                  .   .   .“


       say this was, in fact, job related it had to do with patient care and
                                                -


       improper payment. That is a stretch, I suppose, they will say: You should
       have used internal [Swedish] processes rather than going outside of
       [Swedish]. But, it is a defense.~6~

       Fletcher told Dr. Eskridge that Swedish “will look at whether you failed to check

whether your course of action was prohibited.” Fletcher also notes Swedish “could

contend that your reports about [Dr.] Loh were retaliatory for the complaints he had

about you some years ago leading to your supervision” and “they could contend that

you concealed the violation by not using your name on the letter to Madigan.” Fletcher

asked Dr. Eskridge, “Can they claim there is a pattern? Are there any other things

you’ve done which led to any investigations?”

      ~ Page.
      6 Emphasis in original; ellipses in original.




                                                          8
No. 78013-1-1/9

        Fletcher said, “I’ve not yet looked at the regulations regarding the National

Physician Data Bank and what and how anything here would be reported.” However,

Fletcher told Dr. Eskridge:

       At your stage of career and with your accomplishments, I wonder if it really
       would make any difference going forward with another institution.
       Depending on what [Swedish] does tomorrow or thereafter, you will want
       to be candid in any application for privileges at another institution.

MEC Recommendation To Revoke Medical Privileges

       On July 23, the Swedish chief of staff sent Dr. Eskridge a “Written Notice of

Recommended Adverse Action.” MEC recommended revoking Dr. Eskridge’s privileges

and membership at Swedish for the following reasons:

       1. Your deliberate release of protected health information to an outside
          entity and your attempt to conceal this action, were in violation of policy
          and Medical Staff Rules and Regulations, including but not limited to
          rules and regulations concerning professional conduct and behavior.

       2. Your failure to report any concerns through Swedish and Medical Staff
          internal channels, including established processes for quality review,
          was in violation of policy and Medical Staff Rules and Regulations.

       3. Your history of behavior concerns shows a pattern of misconduct. You
          have previously received both education and corrective action for
          these concerns. Your pattern of misconduct has continued despite the
          previous education and corrective actions.

       The Notice of Recommended Adverse Action informs Dr. Eskridge that

“[b]ecause the MEC is recommending to the Swedish Health System Board of Trustees

that your Medical Staff privileges and membership be revoked, you have the right to

request a Review Hearing.” The notice states Dr. Eskridge must request a review

hearing in writing ‘within thirty (30) days of receipt of this letter” and “enclosed a copy of

the Swedish Medical Staff Bylaws, Article Xl: Disciplinary and Review Hearing.”




                                              9
No. 78013-1 -1/10

       Dr. Eskridge sent Fletcher the July 23 Notice of Recommended Adverse Action.

At 8:09 am. on July 24, Fletcher sent an e-mail to Dr. Eskridge asking about the

“‘history of behavior concerns’ “and “‘pattern of misconduct’   “:


       Item no. 3 is the most bothersome for me: “Your history of behavior
       concerns shows a pattern of misconduct. You have previously received
       both education and corrective actions for these concerns. Your pattern of
       misconduct has continued despite the previous education and corrective
       actions.” What is that about? If you have any information about that, let
       me know so I can better assist you.

       Fletcher testified that when he met with Dr. Eskridge, he was reluctant to discuss

what had happened in the past but referred to the incident with Dr. Loh in 2013:

      I learned from [Dr. Eskridge] that there had been some incident years
      before that involved alcohol and a complaint by Dr. Loh about his    —    Dr.
      Eskridge’s    — behaviors. This led to some undefined action by Swedish,
      and what I understood is that it led also to a referral to the Washington
      Physicians Health Plan.
              I wasn’t able to tease out a whole lot of information about that,
      other than Dr. Eskridge felt —   I think his words were, “It was phony.” But
      he didn’t provide particulars.

       In late July, Fletcher and Dr. Eskridge discussed whether to request a review

hearing to contest revocation of his medical privileges. According to Dr. Eskridge,

Fletcher told him to “not go ahead with the revocation hearing.”

      In late July 2015, in a phone conversation, Mr. Fletcher communicated to
      me that it was his advice, counsel, and recommendation that I not go
      ahead with the revocation hearing. He said it would be expensive and that
      nothing would be accomplished. He told me that with my reputation I
      would have no trouble getting another job and that I could live off my
      investments and patents.

      On July 30, Fletcher contacted Dr. Eskridge “regarding his decision not to

appeal” the MEC recommendation. On July 31, Fletcher sent an e-mail to Dr. Eskridge

confirming, “Per our conversation of yesterday, you don’t want to bother appealing the

recommendation of the MEC and you don’t want me to do further work on this.”


                                           10
No. 78013-1-I/li

          On August 10, Fletcher sent Dr. Eskridge a letter confirming his decision not to

contest the MEC recommendation to revoke his medical privileges. Fletcher states a

request for a hearing “must be made by August 20.”

                  I understand from our last conversation that you do not want me to
          seek an appeal of the decision of the [MEC] to revoke your privileges at
          Swedish. I will comply with that instruction and will not do anything
          further. For that reason, I believe that my engagement by you for legal
          services is now at an end.
                  For your information, a notice for hearing must be made by August
          20. Failure to submit a timely notice will be grounds to deny you a
          hearing.

          Dr. Eskridge did not request a hearing.

Revocation of Medical Privileges

          On November 5, the Swedish chief medical officer informed Dr. Eskridge that on

October 28, 2015, the Swedish Health System Board of Trustees affirmed the MEC

recommendation to revoke his medical staff privileges and membership. The letter

states:

          Please be informed that since this final action is considered an adverse
          action, the Swedish Medical Staff is required to report this adverse action
          to the Washington State Medical Quality Assurance Commission and the
          National Practitioner Databank.

On November 12, Dr. Eskridge’s “medical staff privileges and membership were

terminated.” Swedish reported the revocation of medical privileges to MQAC.

MQAC Investigation

          In December, MQAC opened an investigation into the decision of Swedish to

revoke Dr. Eskridge’s medical provisions. Dr. Eskridge retained attorney Gerald Tarutis

to represent him.




                                               11
No. 78013-1-1/12

       On March 8, 2016, Tarutis sent a letter to MQAC and a lengthy letter from Dr.

Eskridge. Citing HIPAA regulations 45 C.F.R.      §~ 164.520 through .526, Tarutis argued
Dr. Eskridge did not violate HIPAA. Tarutis asserted HIPAA allows a physician to

disclose protected health information without the patient’s consent or authorization to a

public health authority like Mad igan, “provided the agency is legally authorized to collect

and receive the disclosed information and the disclosure is for ‘public health purposes,’

such as “public health surveillance, investigations, and interventions.”

       On April 6, MQAC sent a letter to Tarutis. The letter does not address HIPAA or

the HIPAA defense. The letter states MQAC “closed this case.” The letter states only

that Dr. Eskridge “may have avoided this situation by reporting his concerns to [MQAC],

instead of the Office of Inspector General directly,” and “the panel acknowledges the

Respondent was attempting to bring his significant concerns regarding the standard of

care provided to patients to the attention of regulatory authorities.”

Legal Malpractice Lawsuit

       On March 7, 2017, Dr. Eskridge filed a legal malpractice lawsuit against Fletcher

and Stokes Lawrence. Dr. Eskridge alleged Fletcher’s legal representation fell below

the standard of care and was the proximate cause of the decision of Swedish to revoke

his privileges and membership. Dr. Eskridge alleged Fletcher knew or should have

known that he had a defense to the alleged HIPAA violation. Fletcher filed an answer

denying the allegations.

Summary Judgment Dismissal

       Fletcher filed a motion for summary judgment dismissal. Fletcher asserted Dr.

Eskridge could not prove proximate cause. Fletcher argued that if Dr. Eskridge had



                                             12
No. 78013-1-1/13

challenged the revocation of his medical privileges, he would not have prevailed in the

MEC hearing. Fletcher asserted Dr. Eskridge could not meet the burden to prove by

clear and convincing evidence that the reasons to revoke his medical privileges were

arbitrary, capricious, or unreasonable. Fletcher argued the opinions of Dr. Eskridge’s

experts on the standard of care were irrelevant and the expert opinions of John

Christiansen and Tarutis about whether Dr. Eskridge would have prevailed were

speculative. Fletcher also argued Dr. Eskridge could still pursue a wrongful termination

claim against Swedish.

       In response, Dr. Eskridge primarily relied on the declaration of Tarutis on the

element of proximate cause. Tarutis states the determination by MQAC “is clear,

cogent and convincing evidence that Dr. Eskridge’s actions were well supported by

HIPAA regulations and that he could have prevailed on this ground had the matter

proceeded to a hearing before Swedish regarding his privileges.” Tarutis also asserts

that by requesting a hearing, Fletcher could have obtained discovery of additional facts

and “presenting a positive defense could have created a different atmosphere resulting

in a settlement of the issue.”

       The court granted summary judgment and entered an order dismissing the

lawsuit.

Appeal of Summary Judgment Dismissal

       Dr. Eskridge contends material issues of fact preclude granting summary

judgment on proximate cause. We review summary judgment de novo. Kruse v. Hemp,

121 Wn.2d 715, 722, 853 P.2d 1373 (1993). Summary judgment is appropriate if the

pleadings, affidavits, depositions, and admission demonstrate the absence of any



                                            13
No. 78013-1-1/14

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

of law. CR 56(c); Jonesv. Allstate Ins. Co., 146 Wn.2d 291,300-01,45 P.3d 1068

(2002).

       When the defendant files a motion for summary judgment showing the” ‘absence

of evidence to support the {plaintiff]’s case,’ “the burden shifts to the plaintiff to set forth

specific facts showing a genuine issue of material fact for trial. Young v. Key Pharm.,

Inc~ 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Allegations or conclusory

statements of fact unsupported by evidence are not sufficient to establish a genuine

issue of material fact. Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127,

132, 769 P.2d 298 (1989); Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 169,

273 P.3d 965 (2012). The nonmoving party cannot rely on “speculation, argumentative

assertions that unresolved factual issues remain, or in having its affidavits considered at

face value.” Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1

(1986). Bare assertions that a genuine material issue exists cannot defeat a motion for

summary judgment. SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d 40 (2014);

Griswold v. Kilpatrick, 107 Wn. App. 757, 763, 27 P.3d 246 (2001). A party must

present more than “[ujltimate facts” or conclusory statements. Grimwood v. Univ. of

Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988), abrogated on other

grounds by Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 404

P.3d 464 (2017).

       If the plaintiff ‘fails to make a showing sufficient to establish the existence of an
                     “




element essential to that party’s case, and on which that party will bear the burden of



                                              14
No. 78013-1-1/15

proof at trial,’ “summary judgment is proper. Young, 112 Wn.2d at 225 (quoting

Celotex, 477 U.S. at 322). Because Dr. Eskridge must meet the burden of showing by

clear and convincing evidence that the recommendation of MEC was arbitrary or

unreasonable, we incorporate that standard of proof in our assessment of the evidence

on summary judgment. Portmann v. Herard, 2 Wn. App. 2d 452, 462-63, 409 P.3d

1199 (2018).

       To establish a claim for legal malpractice, the plaintiff must prove (1) the

existence of an attorney-client relationship that gives rise to a duty of care to the client,

(2) an act or omission by the attorney that breaches the duty of care, (3) damage to the

client, and (4) proximate cause between the attorney’s breach of the duty and the

damages incurred. Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992).

       Fletcher’s motion for summary judgment assumed breach of the standard of care

and addressed only proximate cause. Fletcher argued Dr. Eskridge could not prove by

clear and convincing evidence that the recommendation to revoke his medical privileges

was arbitrary or unreasonable.

       The “cause in fact” and “but for” test applies to proof of causation in a legal

malpractice case. Daugert v. Pappas, 104 Wn.2d 254, 260, 704 P.2d 600 (1985). A

plaintiff in a legal malpractice case must prove that but for the negligence of the

attorney, the plaintiff probably would have prevailed in the underlying proceeding.

Daugert, 104 Wn.2d at 263; Schmidt v. Coogan, 162 Wn.2d 488, 492, 173 P.3d 273

(2007). A court can decide proximate cause as a matter of law only when reasonable

minds could reach but one conclusion. SentinelC3, 181 Wn.2d at 140; Kim v. Budget




                                             15
 No. 78013-1-1/16

 RentACarSys., Inc., 143 Wn.2d 190, 203, 15 P.3d 1283 (2001); VersusLaw, Inc. v.

Stoel Rives, LLP, 127 Wn.App. 309, 328, 111 P.3d 866 (2005).

         Dr. Eskridge contends expert testimony shows the legal advice of Fletcher was

the proximate cause of revocation of his privileges. Dr. Eskridge cites the MQAC

decision to argue there is clear and convincing evidence that he would have prevailed at

the MEC hearing and Swedish would not have revoked his medical privileges. Dr.

Eskridge relies primarily on the declaration of his expert Tarutis. Tarutis asserts the

MQAC decision not to pursue disciplinary action “is clear, cogent and convincing

evidence that.     .   .   [Dr. Eskridge] could have prevailed   .   .   .   had the matter proceeded to a

hearing before Swedish.’7 For the reasons set forth below, we conclude Dr. Eskridge

has not raised a genuine issue of material fact that he probably would have prevailed in

the revocation hearing.

        First, allocation of the burden of proof in a medical disciplinary proceeding is

markedly different from the revocation hearing governed by the Swedish bylaws. In a

medical disciplinary proceeding, MQAC has the burden of proving allegations against a

doctor by clear and convincing evidence. Nguyen v. Wash. Dep’t of Health Med.

Quality Assur. Comm’n, 144 Wn.2d 516, 529, 29 P.3d 689 (2001). By contrast, in a

Swedish revocation hearing, Dr. Eskridge had the “burden of proving by clear and

convincing evidence” that the MEC recommendation to revoke his privileges “should not

be sustained because it lacks factual basis or the conclusions drawn from the facts are

arbitrary, capricious, or unreasonable.” The declaration of Tarutis does not address

         ~ Below, Dr. Eskridge also submitted declarations from expert witness Christensen and Mark
Fucile. Christiansen does not state that Dr. Eskridge probably would have prevailed in an MEC hearing.
Christiansen states only that “there were available internal processes available by Swedish’s own by-laws
and rules giving Dr. Eskridge the opportunity to avoid termination.” Fucile addressed only the standard of
care.


                                                   16
 No. 78013-1 -1117

 how Dr. Eskridge would have been able to meet the high burden of proof in an MEC

 revocation hearing.

            Second, the scope of the evidence presented at the MEC hearing on the

 recommendation to revoke medical privileges would have been far broader than the

 evidence Dr. Eskridge presented to MQAC. Tarutis addressed only HIPAA in the letter

 to MQAC. HIPAA generally limits use of protected health information to treatment,

 payment, or health care operations. 45 C.F.R.             § 164.502. Tarutis focused on certain
 HIPAA provisions that allow disclosure of protected health information without patient

consent or notification to argue there was no HIPAA violation. To the extent Tarutis

addresses how Dr. Eskridge obtained this patient information, Tarutis states only that

Dr. Eskridge “personally witnessed inappropriate care” or “received reports from other

health[ ]care providers who have witnessed similar inappropriate care.” However, Dr.

Eskridge admitted he obtained protected health care information of the patients

identified in his letter to Madigan by electronically accessing and reviewing the medical

records of five patients with whom he had no treatment relationship and from whom he

had no consent to access their confidential medical records. Yet neither Tarutis nor Dr.

Eskridge address the unauthorized access of protected health information of individuals

who were not his patients or the allegation that his “history of behavior concerns shows

a pattern of misconduct.”8 The undisputed record shows that Dr. Eskridge violated the

Swedish Information Confidentiality Agreement; the policy on Integrity, Compliance,

Privacy and Security; and the Swedish rules and regulations that expressly prohibit a


        8  Christiansen testified that he did not consider Dr. Eskridge’s alleged “pattern of misconduct” in
forming his opinion. In his declaration, Christiansen states that any “‘previous misconduct’ was “never
                                                                                              “

identified in any record available to me.” In his deposition, Christiansen similarly admitted that he formed
his opinion “without knowing anything about any previous disciplinary issues.”


                                                     17
No. 78013-1-1/18

doctor from accessing the protected health information of patients with whom that

doctor has no treatment relationship. The evidence of accessing patient medical

records is a clear violation of the Information Confidentiality Agreement Dr. Eskridge

signed in 2012 that would have been presented at the Swedish hearing. The 2012

Information Confidentiality Agreement unequivocally states Dr. Eskridge agrees to “only

access   .   .   .   the minimum confidential information as authorized to do my job” and “not in

any way access.            .   .   any confidential information except as properly and clearly

authorized within the scope of my job and in accordance with all applicable Swedish

policies and procedures.” The Swedish corrective action policy for privacy violations

identifies “[l]ooking at or accessing confidential information (including PHI/ePHI[9l) for an

unauthorized purpose” as a violation “that may result in corrective actions.”

       The undisputed record supports finding Dr. Eskridge violated Swedish rules and

regulations governing professional conduct and behavior by attempting to conceal his

identity when he contacted Madigan. The Swedish rules and regulations require

doctors to report standard of care concerns. The record also shows Dr. Eskridge did

not report concerns about substandard care “through Swedish and Medical Staff

internal channels.” The undisputed record also supports finding a “pattern of

misconduct” dating back over a period of years and continuing despite previous

corrective action efforts.

       According to Tarutis, if Fletcher had requested a hearing, he could have obtained

discovery on the allegation of a pattern of misconduct and by “presenting a positive

defense could have created a different atmosphere resulting in a settlement of the

issue.” Speculative and conclusory opinions cannot create a genuine issue of material
       ~ Electronic protected health information.


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No. 78013-1-1/19

fact on the element of proximate cause. Dauqert, 1 04 Wn.2d at 260 (“The ‘but for’ test

requires a plaintiff to establish that the act complained of probably caused the

subsequent disability.   .   .   .   Plaintiff’s case must be based on more than just speculation

and conjecture.”); Griswold, 107 Wn. App. at 763 (expert witness’ conclusory opinion

that the claim would have settled not sufficient to raise a genuine issue of material fact

on the element of proximate “but for” causation).

       We conclude Dr. Eskridge could not show by clear and convincing evidence that

but for the alleged breach of the standard of care, the recommendation to revoke his

medical privileges lacked a factual basis or the conclusions drawn from the facts were

arbitrary, capricious, or unreasonable. We affirm summary judgment dismissal of the

lawsuit.




                                                          0~

WE CONCUR:                                                                       1

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