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Eelbode v. Chec Medical Center9/17/1999
and a chiropractor. In opining that Grothe negligently administered the back test, each relied upon how the incident had been "described," or a review of Grothe's records of the examination, or both. But Eelbode did not submit an affidavit describing first hand how the incident occurred. This failure forms the basis of Chec's argument that Eelbode has not set forth an adequate factual record of his claim. Specifically, Chec argues that Eelbode did not describe by affidavit how the test was administered or that he was injured as a result. Thus, according to Chec, Eelbode has not connected his experts' opinions that the test was negligently administered with the actual test he was given. We disagree.
In addition to affidavits from his own experts, Eelbode submitted an affidavit from Grothe. In it, she identified Chec's records of her examination of Eelbode. She also described the back test as "having the test subject lift using the back only, with legs locked, pulling up on a chain attached to a scale . . . ." Further, she reported that although she could not "recall the specific events relating to Mr. Eelbode's alleged injury , it is clear to me that Mr. Eelbode expressed discomfort to me following the back torso strength test . . . ." And Eelbode's experts stated in their affidavits that Grothe's description of the test was not the proper and accepted method of administering it.
Construing the facts and all reasonable inferences in favor of Eelbode, this is sufficient to create a factual issue of whether Grothe negligently administered the back strength test.
C. Requirement of Physician-Patient Relationship
Chec contends that Eelbode was not Grothe's patient and that a physician-patient relationship is required to subject a health-care practitioner to liability under Washington's comprehensive medical malpractice act. Essentially, Chec argues that Grothe and Chec had no duty not to harm Eelbode. We disagree.
The medical malpractice act sets forth three causes of action: (1) failure to follow the accepted standard of care; (2) failure to obtain informed consent; and (3) a promise that the injury would not occur. RCW 7.70.030. A cause of action for informed consent or a promise not to injure requires that the injured person be a patient. RCW 7.70.030(2), (3). But a claim of failure to follow the accepted standard of care does not require a physician-patient relationship. RCW 7.70.030(1). Moreover, the statute imposes liability for failure to follow the accepted standard of care upon any "health care provider." RCW 7.70.030(1). Although physical therapists are included in the statutory definition of "health care provider," so are opticians, pharmacists, and paramedics. RCW 7.70.020(1). Yet under most circumstances, the latter three professionals do not establish physician-patient relationships with the persons they serve. Daly v. United States, 946 F.2d 1467, 1469 (9th Cir. 1991). Including these professionals as health care providers under the statute supports a legislative intent "to impose liability beyond the context of a physician-patient relationship." Daly, 946 F.2d at 1469.
In Daly the Ninth Circuit considered whether Washington law requires a physician-patient relationship in a claim for failure to follow the accepted standard of care. There, a doctor gave a pre-employment physical. The question was whether, in the absence of a physician-patient relationship, he had a duty to inform the person examined of abnormal test results. In holding that he did, the court relied upon McKee v. American Home Prods. Corp., 113 Wn.2d 701, 782 P.2d 1045 (1989) (pharmacist had a duty to warn of known or obvious errors in
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