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Eelbode v. Chec Medical Center9/17/1999
a prescription), and Harbeson v. Parke-Davis, Inc., 98 Wn.2d 460, 656 P.2d 483 (1983) (recognizing a cause of action for wrongful life without first finding a doctor-patient relationship between the physician and the unborn child). We agree with Daly's reasoning.
Further, we are persuaded by the nature of Eelbode's claim that no physician-patient relationship is required. Eelbode does not argue that Grothe is liable for failing to properly diagnose or treat, obligations that inhere in the physician-patient relationship. Rather, Eelbode claims only that Grothe undertook to administer a specific test and did so negligently, causing him harm. We hold that in this restricted circumstance, Grothe owed Eelbode a duty to administer the test according to accepted standards. And the facts of the case do not require that we set the outer limits of the duty owed by Grothe, or any physical therapist, in giving pre-employment physical examinations. Because we find a duty to follow accepted standards exists, we need not address Chec's argument that Eelbode must prove gross negligence.
Finally, the weight of authority from other jurisdictions supports our Conclusion that no physician-patient relationship is needed to create liability for a claimed failure to follow the accepted standard of care.
D. Validity of the Release
Chec maintains that when Eelbode signed the release, he either (1) released Chec in advance from any liability for harm occurring during the exam, or (2) expressly assumed the risk of a back injury occurring during the examination.
1. Did the release cover negligence on the part of Chec employees? The release signed by Eelbode states, in part:
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. (Emphasis added.) The emphasized language is very broad. It purports to release Chec for "all liability arising from any injury to me resulting from my participation in the exam." And Grothe's alleged negligence in directing Eelbode to lift a weight occurred during Eelbode's participation in the exam.
Exculpatory language in a pre-injury release must be clearly stated. Vodopest v. MacGregor, 128 Wn.2d 840, 848, 913 P.2d 779 (1996) (citing Scott v. Pacific W. Mountain Resort, 119 Wn.2d 484, 490, 834 P.2d 6 (1992)). The language in Chec's release is broad enough to cover even negligence on the part of Chec's staff. Nonetheless, such broadly phrased exculpatory clauses are enforceable unless "(1) they violate public policy, or (2) the negligent act falls greatly below the standard established by law for protection of others, or (3) they are inconspicuous." Vodopest, 128 Wn.2d at 848 (citing Scott, 119 Wn.2d at 492). Eelbode does not claim that Grothe's negligence falls greatly below a standard established by law, or that the clause was inconspicuous. Therefore the clause is enforceable unless it violates public policy. See, e.g., Scott, 119 Wn.2d at 490-91.
2. Was the exculpatory clause void because it violated public policy?
In Wagenblast v. Odessa School Dist. No. 105-157-166J, 110 Wn.2d 845, 758 P.2d 968, 85 A.L.R.4th 331 (1988), the Washington State Supreme Court adopted six factors to guide courts in deciding whether a pre-injury exculpatory agreement violates public policy:
(1)
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