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Koch v. Mutual of Enumclaw Insurance Co.8/13/2001
At the request of Mutual of Enumclaw (MOE), appellant Alberta Koch's insurer, respondent Dr. John McDermott conducted an independent review of Koch's medical records. Based on Dr. McDermott's report, MOE declined to make payments under Koch's personal injury protection (PIP) coverage for several months. Because Koch failed to establish a genuine factual issue as to whether Dr. McDermott's opinion was dishonest or offered in bad faith, the trial court properly granted summary judgment and dismissed Koch's claims for tortious interference with a contract and violation of the Consumer Protection Act (CPA). We also affirm the trial court's award of attorney fees for a frivolous action, but reverse that portion of the award compensating Dr. McDermott for his time as a litigant.
Facts
Appellant Alberta Koch is an insured under an automobile insurance policy issued by Mutual of Enumclaw. She was injured in a Port of Seattle bus accident on August 17, 1996, and sought treatment from Dr. Martin Tullus. During the following two years, MOE paid $7,900.75 in medical billings under Koch's personal injury protection coverage.
Because Koch's left shoulder pain was not responding to treatment, Dr. Tullus suspected a possible rotator cuff tear and performed exploratory surgery in July 1998. After the operation, MOE contracted with Objective Medical Assurance Corporation and respondent Dr. John McDermott, an orthopedic surgeon, for an independent review of Koch's medical records, including an 'assessment whether the treatments are reasonable and necessary and that surgery was warranted and appropriate.'
In his report dated August 12, 1998, Dr. McDermott noted that the exploratory surgery had not revealed the suspected rotator cuff tear or labral tear, but that Dr. Tullus had trimmed a prominent acromion, which Dr. McDermott characterized as an 'anatomic variant':
With respect to the left shoulder, the patient has an arc type impingement syndrome that was present prior to the accident and subsequently has been managed. At recent surgery only the anatomic variant and bursa were found. There was no evidence of rotator cuff tear or labral tear as had been earlier suspected. The concerns over rotator cuff tear were not borne out in the surgical procedure. Thus, her surgery would represent management of a pre-existing problem. (Emphasis ours.)
After receiving Dr. McDermott's report, MOE advised Koch that it would not release the remaining $2,099.25 in PIP benefits. When Koch threatened a lawsuit, MOE asked Dr. McDermott to review his report. On October 7, 1998, Dr. McDermott provided a supplemental report:
The records document the patient's history, that of tardy presentation for multiple complaints. The patient had complaints to the knees, neck, feet, ankles, low back, and left shoulder. The original concern focused over possible post traumatic patellar femoral syndrome and strain of the foot and ankle. Dr. Tullus does note that the patient had 'painful arc' and he initially did not feel that special studies were needed. Subsequently, the patient had an MRI performed which raised the question of anterior {labral} tear.
As noted in my report, the patient at surgery was not found to have a {labral} tear, but rather a congenital variant.
In answering the questions posed at the time of the record review, the concern of possible aggravation of an also-diagnosed 'impingement syndrome' was not asked nor addressed. Impingement syndrome is a degenerative change in the acromion that causes rotator cuff compromise and then shoulder symptoms.
It is my belief that the patient on a more probable than not bas
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