  /FILE,\
       IN CLERKS OFFICE       '\._
                                                            ~   '• ~,.;;,.,;.,   ..


IUPREME COURThSTATE OF WA8HINGTON
     DATE     uEC 1 1 2014
~fww4-,9CHIEF JUSTICE




             IN THE SUPREME COURT OF THE STATE OF WASHINGTON



RAYMOND GROVE,                                   )
                                                 )      No. 89902-9
                           Petitioner,           )
                                                 )
        v.                                       )
                                    )                   EnBanc
PEACEHEALTH ST. JOSEPH HOSPITAL,    )
                                    )
                Respondent,         )
                                    )
ST. JOSEPH HOSPITAL FOUNDATION;     )
DR. SARA MOSTAD; and DR. DAG JENSEN,)
                                    )
                Defendants.         )                   Filed - -DEC 1 1 2014
                                                                  ------



         MADSEN, C.J.-The primary issue in this medical malpractice case is whether

the trial court properly granted the defendant hospital's postverdict motion for judgment

as a matter of law. Here, the plaintiff patient presented expert testimony establishing that

following the patient's lengthy heart surgery, the surgeons in charge of the patient's

postoperative recovery failed to meet their standard of care, which required appropriately

monitoring the patient for compartment syndrome, a known possible complication

following such surgery, and also failed to direct members of the hospital's care team
No. 89902-9


treating the patient during his recovery to so monitor. In light of this evidence, we

reverse the trial court and remand for reinstatement of the jury verdict.

                                          FACTS

       On December 21, 2006, Raymond Grove underwent a complex six hour cardiac

surgery performed by Dr. Richard Leone, who remained Grove's primary physician until

December 25, when Dr. Leone traveled for Christmas vacation. In Dr. Leone's absence,

other surgeons at PeaceHealth St. Joseph Medical Center (PeaceHealth or hospital)

assumed the role of primary physician for Grove. Dr. Edward Zech took over on

December 25 and Dr. James Douglas on December 29. Dr. Leone remained Grove's

physician of record until Grove was ultimately released from the hospital.

       Although Grove's heart surgery went well, he had a difficult recovery. He

developed various complications, including pneumonia and a blood infection. His

condition required intubation from December 23 through December 26 and the hospital

brought in an infectious disease specialist, Dr. Sara Mostad, 1 to treat him.

       By December 29, Grove's progress chart noted that Grove's left calf was swollen,

red, and painful to the touch. Grove's ability to bend his joints in both ankles was weak,

particularly on his left leg. Based on these symptoms, Drs. Mostad and Douglas 2

suspected that Grove may have had cellulitis, a bacterial infection typically treated with

antibiotics, even though Grove was already on antibiotics for the earlier blood infection.



1
  Dr. Mostad was not an employee of PeaceHealth.
2
  Dr. Douglas was the PeaceHealth surgeon who was acting as Grove's primary physician at the
time.

                                              2 '
No. 89902-9



      By December 31, Grove could not fully flex his left foot and dragged his left toe

when he walked during physical therapy sessions. 3 Dr. Mostad then suspected that Grove

suffered from compartment syndrome, a complication from lengthy surgical procedures.

Typical symptoms of compartment syndrome include hardness, swelling, numbness,

tingling, pallor, loss of neurological function, lack of pulse, and severe pain. Grove did

not complain of excruciating pain, but throughout his recovery time, he had been heavily

pain medicated. Another physician, Dr. James Miller, conducted a compartment pressure

test on December 31, which indicated that Grove suffered from the syndrome.

       Compartment syndrome can result in irreversible damage but is curable if detected

early. Grove underwent surgery to relieve his compartment syndrome, but it was too late.

He suffered necrosis, muscle and other cell death within the compartment, resulting in

permanent injury to his left leg.

       Grove sued PeaceHealth for medical malpractice, asserting that the hospital was

vicariously liable for the negligence of its managers, supervisors, agents, and employees

who treated him. 4 Drs. Leone, Douglas, and Zech testified that PeaceHealth provided

medical care on the basis of a team that included surgeons, physician assistants, nurses,

students, and other hospital staff. The surgeons related that team members made rounds

more than once a day and that the system was designed to keep physicians and staff



3
  Such condition, described as "foot drop," indicated loss of neurological function due to anoxia,
or inadequate blood and oxygen supply. Test. of Carl W. Adams (June 14, 2012) at 11-12, 35-
36.
4
  Grove also sued Dr. Mostad and another physician, but they were apparently dismissed from
the action before trial.


                                                 3
No. 89902-9


apprised of the patient's condition. Perpetuation Dep. of Sean D. Ghidella (June 20,

2012) at 37 (surgeons made rounds twice a day and physician's assistants once a day).

      Two experts testified for Grove: orthopedic surgeon Dr. Sean Ghidella and

cardiovascular surgeon Dr. Carl Adams. Dr. Ghidella testified that the medical care

provided to Grove fell below the standard of care because of inadequate monitoring and

failure to rule out a known possible postoperation complication. Dr. Ghidella opined that

Dr. Leone was ultimately responsible as team leader at the outset of Grove's treatment.

He testified that with proper monitoring Grove's compartment syndrome should have

been detected earlier. According to Dr. Ghidella, Grove's leg should have been

examined on every round. He opined that Grove would not have suffered permanent

injuries or would have had a better outcome if the standard of care had been met. He

thought it likely that the compartment syndrome began to develop while Grove was

intubated, but he could not determine precisely when Grove developed the syndrome,

stating that had the standard of care been met, with record entries regarding proper

monitoring and testing, he could have determined when the syndrome developed.

       Dr. Adams opined that the cardiovascular surgeon in charge of Grove's care failed

to meet the standard of care of such practitioners. He identified the three surgeons in

charge of Grove's care as Drs. Leone, Zech, and Douglas. 5 Dr. Adams also testified that

Dr. Leone was responsible for the medical care team; thus, if a physician's assistant made

a mistake, Leone was responsible in the same way as the captain of a ship. Dr. Adams


5
 As noted, responsibility for Grove's care was passed along to each of these three surgeons in
sequence.

                                                4
No. 89902-9


explained that the medical care team, as directed by the surgeon in charge, should have

checked for compartment syndrome, since it was a recognized complication of a long

surgical procedure of the type Grove experienced. 6 Dr. Adams further opined that the

failure to promptly diagnose Grove's compartment syndrome based on his leg symptoms

while being treated with antibiotics fell below the standard of care. Dr. Adams testified

that the failure to monitor for compartment syndrome began with Dr. Leone and

continued thereafter. In Dr. Adams's opinion, had hospital employees engaged in the

care team not breached the standard of care, Grove would have had a better chance of

avoiding injury or would have suffered less severe injury.

       The trial court instructed the jury on the standard of care applicable to a

"physician, surgeon or health care provider." Clerk's Papers (CP) at 329. The court

instructed the jury that a "health care provider" included "an entity" including a hospital

or an employee or agent of same acting within the course and scope of his or her

employment. CP at 330. And the court instructed the jury that any act or omission of a

PeaceHealth employee was an act or omission of the hospital. The jury returned a special




6
 Dr. Adams acknowledged that the intensive care unit personnel worked as a team, but he made
clear that the surgeon in charge was ultimately responsible. He acknowledged that Drs. Leone,
Zech, and Douglas each ran the team during Grove's convalescence.
        Q: In terms of your statement as to the relative liability, is it the head ofthe team
        that you're critiquing or each individual member?

        A: It's always the head of the team. And the team members report to that head.
        And then if the head team member is gone, then it's the person who he designates
        the new captain.
Test. of Adams at 36.


                                               5
No. 89902-9


verdict for Grove, finding that PeaceHealth was negligent and that its negligence was a

proximate cause of Grove's injury, and awarding Grove $583,000 in damages.

       The trial court granted PeaceHealth' s postverdict motion for judgment as a matter

of law, 7 ruling that Grove failed to prove breach of the standard of care on the part of any

particular PeaceHealth employee. The Court of Appeals affirmed in a published

decision. Grove v. PeaceHealth St. Joseph Hasp., 177 Wn. App. 370, 312 P.3d 66

(2013). This court granted Grove's motion for discretionary review. Grove v.

PeaceHealth St. Joseph Hasp., 180 Wn.2d 1008, 325 P.3d 913 (2014).

                                          ANALYSIS

       When reviewing an order granting or denying a motion for judgment as a matter of

law, this court applies the same standard as the trial court, determining whether, after

viewing the evidence in the light most favorable to the nonmoving party, substantial

evidence exists to support the verdict for the nonmoving party. Schmidt v. Coogan, 162

Wn.2d 488, 491, 173 P.3d 273 (2007); see also Kemalyan v. Henderson, 45 Wn.2d 693,

277 P.2d 372 (1954) (in ruling upon a motion for judgment notwithstanding the verdict,

no element of discretion is involved, and the trial court can grant such motions only when

it can be held as a matter of law that there is no evidence or reasonable inference from

7
 PeaceHealth's postverdict motion, styled "Defendant's Motion To Vacate Verdict and/or for
Judgment as a Matter of Law," cited CR 59(a)(7)-(9) and contended that Grove presented
"insufficient evidence" to sustain the jury verdict. CP at 349, 356, 362. PeaceHealth sought
vacation ofthe jury's verdict and entry of judgment for the hospital as a matter oflaw, or
alternatively, a new trial. The trial court granted PeaceHealth's motion, entering judgment in
favor of the hospital as "a matter oflaw." CP at 749. The trial court's oral ruling opined that
because the case had been fully litigated and a verdict rendered, there would be no need to retry
the case regardless of the outcome of any appeal: if affirmed on appeal, the case would be over,
and if reversed on appeal, the remedy would be reinstatement of the jury verdict.


                                                6
No. 89902-9


evidence to sustain the verdict); see also Douglas v. Freeman, 117 Wn.2d 242, 247, 814

P.2d 1160 (1991) (same). 8

       Tort actions based on injuries resulting from health care are generally governed by

statute. RCW 7.70.010. A plaintiff seeking damages for medical malpractice must prove

that his or her "injury resulted from the failure of a health care provider to follow the

accepted standard of care." RCW 7.70.030(1). The statutory definition of"health care

provider" includes physicians, physician assistants, nurses, and any "entity" employing

such persons, including hospitals or an employee or agent thereof acting in the course and

scope of his or her employment. RCW 7.70.020(1), (3). The plaintiff must prove that 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

he or she belongs." RCW 7 .70.040(1 ). The plaintiff also must prove proximate cause.

RCW 7.70.040(2). The applicable standard of care and proximate causation generally



8
  Notably, the hospital argued in Division One that an abu~e of discretion standard applied when
reviewing the trial court's grant of the hospital's postverdict motion. That is clearly wrong. As
this court explained in Burnside v. Simpson Paper Co.:
        Overturning a jury verdict is appropriate only when it is clearly unsupported by
        substantial evidence. This court has explained:
                ... This court will not willingly assume that the jury did not fairly and
                objectively consider the evidence and the contentions of the parties
                relative to the issues before it. The inferences to be drawn from the
                evidence are for the jury and not for this court. The credibility of
               witnesses and the weight to be given to the evidence are matters within the
               province of the jury and even if convinced that a wrong verdict has been
               rendered, the reviewing court will not substitute its judgment for that of
               the jury, so long as there was evidence which, if believed, would support
               the verdict rendered.
123 Wn.2d 93, 107-108, 864 P.2d 937 (1994) (alteration in original) (citations omitted) (quoting
State v. O'Connell, 83 Wn.2d 797, 839, 523 P.2d 872 (1974)).


                                                7
No. 89902-9


must be established by expert testimony. Berger v. Sonneland, 144 Wn.2d 91, 111, 26

P.3d 257 (2001).

       Grove's complaint alleged that the hospital and its operating foundation were

"responsible and liable for the negligent acts and negligent failures to act of their agents

and employees and for the corporate negligence of the hospital under the Doctrine of

Respondeat Superior." CP at 10. Grove's list of the responsible "agents and employees"

included Drs. Leone and Douglas and physician's assistant Shane Spears. !d. The jury

was instructed that the hospital was the defendant and that it was to treat corporations the

same as individuals. The jury was further instructed, in language that tracked the text of

RCW 7.70.020, that the term "health care provider" included physicians, physician's

assistants, nurses, and hospitals. CP at 330. The trial court also instructed the jury that

"[a]ny act or omission of an employee is the act or omission of the hospital corporation."

CP at 331. The jury was told that Grove was required to prove, among other things, "that

the defendant failed to follow the applicable standard of care and was, therefore,

negligent." CP at 332; see also RCW 7.70.030.

       As noted, the jury found for Grove but the trial court overturned the verdict,

reasoning that Grove failed to prove that the standard of care had been breached by any

one individual member of the hospital's team. The trial court ruled, "A hospital which

operates with team treatment provided only by hospital employees ... will always be

liable under respondeat superior where an employee is negligent within the scope of their

employment. But a plaintiff is still required to prove negligence on the part of the




                                               8
No. 89902-9


particular employee." 9 Verbatim Report of Proceedings (VRP) (Oct. 16, 2012) at 12.

The court concluded that "there was no evidence sufficient to support the verdict." 10 !d.

at 15.

         But Grove's experts identified Dr. Leone, as individually negligent. Dr. Adams

testified that the negligent failure to properly monitor Grove started with Dr. Leone and

continued thereafter. 11 Dr. Ghidella identified Dr. Leone as "ultimately responsible."

Perpetuation Dep. of Ghidella at 22. Dr. Ghidella also identified the initial onset of

Grove's compartment syndrome as likely occurring when Grove was reintubated in the

intensive care unit. Grove was reintubated on December 23 and extubated on

December 26. Dr. Leone remained Grove's primary physician until he left for vacation

on December 25; this covered most of the time period that Grove was intubated. Also,

there is no evidence that Dr. Leone performed the standard of care monitoring or directed

anyone else to do so for the known potential complication of compartment syndrome

either when he was acting as the primary physician or when he passed that responsibility

on to another surgeon on December 25. See e.g. RP (June 18, 2012 Zech) at 34

(indicating no one directed team members to watch for compartment syndrome). As Dr.

Adams testified, and Dr. Ghidella confirmed, the negligent failure to monitor began with

Leone and continued as Grove's care was transferred to other surgeon employees of

9 See also Verbatim Report of Proceedings (Oct. 16, 2012) at 22 (the court mled, "[A] team isn't
negligent. There has to be a negligent player on the team").
10 The trial court also noted that "the hospital is not a health care provider." Id. at 20. That is not

so. RCW 7.70.020(3) specifically defines "health care provider" as including a "hospital." As
noted, the jury was so instmcted in accord with RCW 7.70.020. See CP at 330.
11 Dr. Adams also identified PeaceHealth Hospital as negligent (i.e., failing to meet the standard

of care) resulting in injury to Grove, without objection.


                                                   9
No. 89902-9


PeaceHealth. 12 Grove's experts' testimony supports the verdict. Assessing the

credibility of that testimony and what weight to give it were for the jury to decide. State

v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989) (deference must be

given to trier of fact who resolves conflicting testimony and evaluates the credibility of

witnesses and persuasiveness of material evidence).

       The Court of Appeals agreed with the trial court, reasoning that because Grove

failed to prove negligence by a particular individual, "[he] failed to prove the standard of

care for the relevant 'health care provider."' Grove, 177 Wn. App. at 383. But, as

discussed above, the Court of Appeals view that Grove failed to link a specific breach of

the standard of care to an individual provider does not comport with the evidence.

Grove's experts opined that the standard of care of a cardiovascular surgeon had been

breached. 13 Grove had three cardiovascular surgeons: Drs. Leone, Zech, and Douglas.


12
   In its supplemental brief, PeaceHealth contends (1) that this court should not consider Grove's
arguments concerning the negligence of the three surgeons because he did not raise the issue
until his motion for reconsideration in the Court of Appeals and (2) that Grove failed to renew
his team argument by not including it in his petition for review. Resp't's Suppl. Br. at 2, 9. Both
contentions fail. Grove argued alternative theories of team responsibility and individual
responsibility in both the trial court and before the Court of Appeals. See, e.g., CP at 428-40
(Plaintiffs Response To Def. Mot. To Dismiss and To Vacate Verdict, addressing, at CP at 434-
46, failure to monitor and diagnose regarding Drs. Leone, Zech, and Douglas); see also Br. of
Appellant at 9-12 (addressing both individual negligence and team negligence); Pet. For Review
at 12-20 (Grove's petition in this court explains his "team" argument and particularly responds to
Division One's determination that he failed to implicate a particular individual).
13
   Further, Dr. Ghidella testified about what a surgeon must do to meet that standard of care for
monitoring a patient for compartment syndrome, explaining that monitoring required two
actions. If the patient is awake, alert, and not too heavily medicated, the surgeon must talk with
the patient to see if he is experiencing any of the symptoms of compartment syndrome. If the
patient is sedated or intubated, as Grove was here, increased monitoring is required, including a
physical compression test: "squeezing the leg to test for how firm or tense the compartments
[are]" and "ranging the leg for responses to passive motion." Pepetuation Dep. ofGhidella at 10.
If the compression test indicates tightness, then a manometer should be used (a needle device


                                                10
No. 89902-9


Dr. Adams opined that the failure to properly monitor began with Leone and continued to

each cardiovascular surgeon who headed the team on a particular day thereafter and this

resulted in the failure to timely diagnose the compartment syndrome. The jury could

have relied on that testimony to determine that one or all of the cardiovascular surgeons

who acted as Grove's primary care physician during his postoperative recovery period

breached the standard of care, resulting in the hospital's vicarious liability. See Douglas,

117 Wn.2d at 247 (trial court may grant a motion for judgment notwithstanding the

verdict only where there is no competent evidence or reasonable inference that would

sustain a verdict for the nonmoving party; that is, if there is any justifiable evidence upon

which reasonable minds might reach conclusions that sustain the verdict, the question is

for the jury).

       The Court of Appeals opined:

       Even if Grove's articulation of the standard of care covered some members
       of the "team," the surgeons for example, Grove did not present evidence
       that but for any one of those particular individuals' failure to adhere to the
       standard of care, he would not have been injured. Accordingly, Grove
       failed to prove proximate cause.

Grove, 177 Wn. App. at 384. But that is not so. As discussed, based on Adams's and

Ghidella's testimony the jury could have concluded that any one or all three of the

surgeons breached the standard of care in that they failed to adequately monitor Grove for


inserted into the compartment to measure pressure). Dr. Ghidella testified that "any clinician"
that is involved in work where there is the potential for compartment syndrome as a complication
should have had training in these monitoring techniques. !d. at 18. Dr. Ghidella testified that in
his view such tests "should" be performed on every round, but in any event such tests were
required to be performed more than once a day to meet the monitoring standard of care. !d. at
28, 37.


                                                11
No. 89902-9


the known possible complication of compartment syndrome, resulting in the late

diagnosis of the onset of compartment syndrome, which resulted in injury to Grove.

There is no dispute that the negligence of a single employee of PeaceHealth rendered the

hospital liable for such negligence, and the jury was so instructed without objection.

Accordingly, based on the evidence concerning the surgeons' omissions, reversal of the

trial court and reinstatement of the jury verdict is warranted.

       Additionally, we note that the Court of Appeals view that chapter 7.70 RCW

"does not contemplate liability for groups of providers" appears to be overly restrictive.

Grove, 177 Wn. App. at 383. The statutory definition of"health care provider" is

nonexclusive, extending to "[a]n entity" "employing one or more" individual health care

providers. RCW 7.70.020(3). The hospital is specifically identified as one such entity,

and it would logically seem that a hospital medical team collaborating in providing

treatment to an individual patient in accordance with hospital policies could constitute yet

another type of "entity." The jury instructions comport with this reading of the statute

and the instructions were not challenged. See CP at 330 (defining "health care provider"

broadly in accordance with RCW 7.70.020). Further, the evidence, including Grove's

experts' testimony, certainly indicated a failure in the standard of care during Grove's

hospital care. The evidence viewed in Grove's favor showed that compartment syndrome

was a known complication of long surgical procedures, that the untimely diagnosis of

compartment syndrome resulted from the failure to properly monitor for that known

complication, and that expert testimony identified the surgeons who oversaw Grove's




                                              12
No. 89902-9


recovery as responsible for such failure to monitor. Indeed, the evidence at trial

established that the surgeons did not monitor for compartment syndrome, nor did they

direct the team members that they oversaw to so monitor. See Test. of Edward R. Zech at

34 (indicating no one directed the team to watch for compartment syndrome). 14

       Further, the Court of Appeals published decision declined to apply this court's

decision inHansch v. Hackett, 190 Wash. 97,66 P.2d 1129 (1937). There, the estate of a

deceased patient sued a hospital and one of its physicians for negligence after the patient

died following childbirth. The jury returned a verdict in favor of the plaintiff as to the

hospital but also returned a verdict in favor of the physician. On the hospital's appeal

this court affirmed, holding that while there was evidence that would have supported the

jury's determination that the defendant physician was not negligent, there was also

evidence indicating that another doctor and one or more nurses may have been negligent

in treating the patient in the absence of the defendant physician, and thus the jury could

validly find the hospital liable under the rule of respondeat superior. !d. at 101-02.

       The Court of Appeals acknowledged that this case is similar to Hansch. Indeed,

that is so, as both cases involved negligent care received during treatment delivered by

multiple employee health care providers at a hospital, but the Court of Appeals held that

Hansch was not controlling because it was decided before chapter 7.70 RCW became

14
  As to team liability, the trial court ruled that in light of limitations at trial based on limited ·
disclosures during discovery, Grove had not offered evidence regarding the standard of care
applicable to individual team members such as nurses. But as discussed above, Drs. Adams and
Ghidella established the monitoring standard of care applicable to the surgeons who headed the
care team and how they breached that standard. Further evidence regarding the negligence of
other team members was not required.



                                                  13
No. 89902-9


effective in 1976. See Grove, 177 Wn. App. at 386. Division One opined that when

Hansch was decided, "medical malpractice was a common law claim and no statutory

requirement existed necessitating expert testimony in order to establish the standard of

care applicable to 'a health care provider' as a member of a particular 'profession or

class.' Hansch no longer properly states the law." !d. But while Hansch preceded

chapter 7.70 RCW, it has not been overruled or held by this court to be abrogated by the

statute. Moreover, the statute does not appear to necessarily abrogate Hansch. Division

One is correct that expert testimony must now establish the applicable standard of care in

a medical malpractice case. Nevertheless, the statute seems to leave room for the notion

that where evidence of such standard is presented, a jury may still determine that a

particular physician did not breach the standard of care but that other physicians and

health care providers did, allowing hospital liability under respondeat superior principles.

The broad definition of"health care provider" in RCW 7.70.020 attests to such

flexibility .15 Accordingly, Hansch retains viability so long as the express requirements of

RCW 7.70 are also met. That being so, and given Grove's experts' testimony regarding

the standard of care and breach of that standard by identified surgeons who are "health

care providers" as defined in RCW 7.70.020, the Court of Appeals erred in affirming the

trial court's granting ofPeaceHealth's motion for judgment as a matter of law, which

overturned the jury verdict for Grove. For the reasons discussed, we reverse the Court of

Appeals and remand to the trial court with direction to reinstate the jury verdict.


15
  Grove need prove only that his injury "resulted from the failure of a health care provider to
follow the accepted standard of care." RCW 7.70.030(1) (emphasis added).


                                                14
No. 89902-9


                                      CONCLUSION

       Considering the inferences and the evidence presented in Grove's favor, Grove

met his burden under chapter 7.70 RCW to show that identified health care providers

employed by PeaceHealth failed to meet the applicable standard of care in monitoring his

postoperation recovery for compartment syndrome, resulting in the untimely diagnosis of

that syndrome and proximately causing injury to Grove by failure to timely treat that

complication. Accordingly, we reverse the Court of Appeals and remand to the trial court

with direction to reinstate the jury verdict in favor of Grove.




                                              15
No. 89902-9




WE CONCUR:




              16
