Witness immunity does not apply to Health Care Information Act violations

By Janine E. Leary

Witness immunity does not apply to information disclosed in violation of the Health Care Information Act (HCIA), but may apply to testimony relating to information acquired during a professional relationship formed for non-litigation purposes, the Washington Supreme Court has held.

In Wynn v. Earin, no. 78247-4 (April 3, 2008), Jolene Earin, a mental-health professional, provided individual and joint marital counseling to Pardner Wynn and his wife, Cynthia. Mr. Wynn viewed Ms. Earin as sympathetic to his wife and hostile toward him, and he stopped seeing her.

The Wynns began dissolution proceedings with residential placement of their children. The court appointed Dr. Kim Chupurdia as guardian ad litem for the children. Dr. Chupurdia contacted Ms. Earin, who disclosed significant information, including her recommendation that the children be placed with Mrs. Wynn, despite not having a release in hand as the HCIA required.

Mr. Wynn obtained a court order requiring Ms. Earin to produce his counseling records to contest her claims, but the records had been stolen from her unlocked car. At the hearing to determine child placement, Ms. Earin testified on Mrs. Wynn’s behalf, and the court ordered placement of the children with Mrs. Wynn

Mr. Wynn sued Ms. Earin for her disclosure of information from the counseling sessions without a release, her testimony at the hearing, and her failure to protect Mr. Wynn's counseling records. Prior to trial, the court dismissed Mr. Wynn’s claims related to Ms. Earin’s appearance and testimony at the hearing to determine child placement, on the basis that these claims were barred by witness immunity.

The Court of Appeals reversed, holding that the HCIA prevailed over witness immunity as to Mr. Wynn’s statutory claims. But the court also held that the witness-immunity rule did not bar Mr. Wynn’s malpractice claims relating to Ms. Earin's appearance and testimony. Mr. Wynn petitioned for and obtained review by the Washington Supreme Court.

The Supreme Court considered the history of the witness-immunity rule, which provides that “witnesses are immune from all claims arising out of all testimony.” Generally, witnesses in judicial proceedings are absolutely immune from suit founded on their testimony. The purpose of this rule is to preserve the integrity of the judicial process by encouraging full and frank testimony. Historically, the witness-immunity rule has applied to guardians and therapists who submit reports to family court.

Ms. Earin argued she should be protected from liability under the HCIA, because, as a witness, she is immune “from all claims arising out of all testimony.” The Court disagreed, holding that witness immunity cannot shield violations of the HCIA. The Court found that the interest in protecting confidential disclosures made during medical treatment outweighs the public-policy justifications for the witness-immunity rule. “Consultations with confidential advisors should not require a warning that anything disclosed will be available to potential future litigation adversaries and may be used against the client in court.” The Court concluded that witness immunity will not shield professionals who disclose information in judicial proceedings in violation of the HCIA.

Despite this holding, the Earin Court also found that witness immunity may apply to witnesses who disclose information acquired in a pre-litigation professional relationship formed for non-litigation purposes. The Court of Appeals had held that witness immunity always applies whenever a witness discloses information acquired during the course of treatment and not with any view toward litigation. The Supreme Court found this application too broad.

Whether witness immunity applies in such situations depends on the individual circumstances of the case. The Court noted that Mr. Wynn’s negligence claims were based not on misdiagnoses or negligent treatment, but rather on alleged negligence in testifying beyond the scope allowable under applicable standards of care. The Court concluded that the witness-immunity rule clearly encompasses this kind of testimony.

The Earin Court concluded that the witness-immunity rule applied to bar Mr. Wynn’s malpractice claims arising from Ms. Earin’s appearance and testimony at the hearing to determine child placement. The Court reversed the Court of Appeals and held that the trial court properly dismissed Mr. Wynn’s malpractice claims grounded in Ms. Earin’s appearance and testimony at the hearing.

Settlement could be unenforceable even if opposing counsel agreed

By Mary E. DePaolo

A settlement agreement is not enforceable where one of its material terms is not yet resolved and a party has not yet given final approval despite its attorney’s oral agreement, the Washington Court of Appeals recently held.

In Veith v. Xterra Wetsuits, LLC, no. 25912-9-III (May 1, 2008), Michael Veith died of hypothermia while swimming. He was wearing a wetsuit manufactured by Xterra Wetsuits, LLC, and distributed by UnclePDog, LLC and King Distribution, LLC. His widow, Cristi Veith, sued Xterra, UnclePDog, and King, alleging that the wetsuit was defective and the defendants failed to provide adequate warnings.

King had agreed earlier to name UnclePDog as an additional insured under its liability policy with Montgomery Insurance Company. But the policy did not provide such coverage to UnclePDog. UnclePDog tendered the defense of Ms. Veith’s claim to Montgomery, which rejected it.

UnclePDog and Ms. Veith then discussed settlement. They eventually agreed that UnclePDog would stipulate to a $1 million judgment and assign its potential claims against Montgomery to Ms. Veith. In exchange, Ms. Veith agreed to release UnclePDog and not to execute on the judgment. UnclePDog’s attorney explicitly told Ms. Veith that they had a deal.

All parties then proceeded to mediation, where Montgomery agreed to insure UnclePDog. UnclePDog then stated it was no longer interested in the settlement. UnclePDog claimed that material terms had not been resolved, such as the confidentiality of the agreement.

At the trial court, Ms. Veith moved to enforce what she viewed to be a final settlement agreement. She argued that the agreement contained all the material terms, which UnclePDog’s attorney had accepted.

The trial court denied her motion. The court found that they had “a basic agreement as to the outlines of an agreement,” but that “the matter wasn’t completely resolved [because] various items … had not been resolved and were clearly material.” The court also found that UnclePDog’s owner had not given final approval to the settlement agreement.

Ms. Veith appealed the trial court’s decision. In analyzing the enforceability of the settlement agreement, the Court of Appeals considered basic contract law. There is no valid contract until an offer is accepted. Acceptance is an expression (communicated by word, sign, or writing to the person making the offer) of the intention to be bound by the offer’s terms. A contract is enforceable when the parties’ intention is plain and the terms of a contract are agreed upon. It is irrelevant if one or both of the parties contemplated drafting and signing a written document at a later time.

The Court of Appeals found that UnclePDog had not accepted Ms. Veith’s offer, because the parties failed to resolve disagreements over some of the settlement’s material terms. Notably, the court did not identify which material terms remained unresolved. The court also found that UnclePDog’s owner had not approved the “final” settlement, because it was not in final form and was not presented to him as such. Without a valid acceptance, the court affirmed the trial court’s ruling and found that no contract existed between Ms. Veith and UnclePDog.

Judge Sweeney dissented. He argued it was unclear whether the settlement agreement was enforceable. He noted that a lawyer has the power to bind his client to a settlement. He agreed with Ms. Veith’s argument that an agreement had been reached: a stipulated judgment, a covenant not to execute, and assignment of UnclePDog's claims against Montgomery. But he concluded that the trial court record did not show whether UnclePDog’s allegedly unresolved terms were actually material. He asserted the case should be reversed and remanded.

Around The Firm

Lee Smart is pleased to announce that attorneys from the Snook Brown law firm are joining Lee Smart. Michael W. Brown and Frank A. Cornelius are veteran personal-injury trial lawyers who will bring their current cases to Lee Smart and look forward to continuing their relationships with current insurers and clients.

Steven G. Wraith and Marc Rosenberg won summary judgment in Weaver v. Paras. Plaintiff was injured when an electric bay door closed on her while loading a truck. Plaintiff sued the general contractor. Steve and Marc moved for summary judgment because their client had relinquished control of the worksite after loading the truck, and because an independent contractor rather than an employee had installed the door. The court agreed and granted their motion. ... Steve Wraith and Janis G. Pelletier won summary judgment based on the corporate-dissolution statute in Ashford Park II/Windsor Const. v. Loberg Roofing Co., a construction-defect case. After condominium owners sued Windsor, the general contractor, Windsor filed a third-party complaint against its subcontractors. Loberg, however, had been administratively dissolved more than two years before the action was filed. The court agreed with Steve and Janis that RCW 23B.14.340’s two-year limitation barred the claims. ...

Sam B. Franklin and William R. Kiendl won summary judgment in Buchanan v. Duffy, a legal-malpractice action. Plaintiffs sued almost five years after their personal-injury settlement. They claimed that their attorney failed to advise them on conflicts of interest, that the settlement was too small as a result, and that the attorney’s representation continued after the settlement. The trial court applied the three-year statute of limitations for such claims and dismissed the action.

Joel E. Wright and Marc Rosenberg won summary judgment in McSydnic v. Blank. Plaintiff bought a building from their client and alleged problems with mold and the plumbing system. Plaintiff sued alleging fraud, negligent misrepresentation, and breach of contract. Joel and Marc argued that their client was not liable, because the contract included an “As Is” clause, and plaintiff lacked proof that the client had actual knowledge of the alleged defects. The court agreed and granted their motion. …

Joel and Marc also won summary judgment of dismissal in Milam v. Pioneer Human Services. A resident of a halfway house sneaked out at night and was found shot to death the next morning. The resident’s estate sued the halfway house for negligent supervision. Joel and Marc argued that their client was not liable, because halfway houses lack a duty to prevent such escapes. The court agreed and granted their motion.

Kirsten A. Schultz won Spokoiny v. Guarnero, a legal-malpractice case. Kirsten argued that the statute of limitations barred plaintiff’s claims, because she did not file her legal-malpractice claim until more than three years after the underlying medical-malpractice claim was dismissed. Kirsten also argued that plaintiff lacked expert testimony for her claims. The trial court agreed and granted the motion. Plaintiff moved for reconsideration, which was denied. Plaintiff appealed, and the Court of Appeals affirmed, awarding Kirsten $23,883.50 in attorney fees for having to defend a frivolous appeal.

August G. Cifelli won a defense verdict in the jury trial of Foster v. BMW of Bellevue, Inc. Plaintiff’s vehicle was damaged during a quality assurance test drive following servicing and repair. The dealership paid for all repairs and a rental vehicle, but plaintiff insisted on additional monies for the diminished value to the car because it had been in an accident. Despite an admission of negligence for causing the accident and plaintiff presenting a supporting expert, the jury deliberated for only 45 minutes and decided that the accident damages did not cause the car to be diminished in value.