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Eelbode v. Chec Medical Center9/17/1999
Norbert Eelbode appeals a summary Judgement dismissing his medical malpractice complaint against a physical therapist who conducted a pre-employment physical. In granting summary Judgement, the trial court ruled that there was no physician-patient relationship between Eelbode and the therapist, and alternatively, Eelbode, by signing a waiver, assumed the risk of injury in the lifting test given during the physical. Additionally, Chec Medical Centers contends that Eelbode failed to set forth by affidavit sufficient facts to support his claim of medical malpractice. We hold that, although marginal, Eelbode's documents in opposition to summary Judgement did create issues of fact; that Chec's physical therapist owed a duty not to harm Eelbode during the physical although no physician-patient relationship existed; and that the waiver does not bar Eelbode's claim. Accordingly, we reverse and remand.
FACTS
Norbert Eelbode applied for a job with Travelers Inn. Pursuant to his application, Eelbode was sent to Laura Grothe, a physical therapist at Chec Medical Centers (Chec), for a pre-employment physical examination. Before the examination, Eelbode signed a document that provided in part: The pre-placement physical is physically demanding and requires the lifting of heavy objects. The lifting can result in muscle strain and possible back discomfort or more serious injuries in persons who do not have adequate strength or who have a pre-existing back or other health problems.
. . . . To the fullest extent permitted by law, I hereby release Chec and the Washington Readicare Medical Group and its physicians from all liability arising from any injury to me resulting from my participation in the exam including, but not limited to, any injury resulting from my failure to provide information concerning my physical or mental condition or to refrain from participating in an activity as required by this acknowledgement and agreement.
Claiming that he was injured because of an improperly administered back torso strength test, Eelbode sued Grothe and Chec for medical malpractice. Specifically, Eelbode claimed that Grothe "required" him to lift "while bending from the waist using only his back with his knees locked." Eelbode alleged that as a result he "experienced immediate sharp and burning pain in his low back, right gluteal area, and down the back of his right leg to the middle of his calf."
The trial court granted the defendants' summary Judgement motion, noting the "extensive nature of the waiver." Eelbode appeals.
ANALYSIS
A. Standards for Review
In reviewing a summary Judgement, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982) (citation omitted); Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 12-13, 721 P.2d 1 (1986). A summary Judgement can be granted only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to Judgement as a matter of law. Wilson, 98 Wn.2d at 437 (citation omitted). We construe all facts and reasonable inferences in favor of the nonmoving party. Wilson, 98 Wn.2d at 437 (citations omitted). And we review de novo statutory interpretations as a question of law. In re the Matter of Charles, 135 Wn.2d 239, 245, 955 P.2d 798 (1998) (citations omitted).
B. Did Eelbode allege sufficient facts to support the elements of a medical malpractice negligence action?
In opposition to Chec's motion for summary Judgement, Eelbode submitted affidavits from two physical therapists
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