In a case that threatened limits on interstate medical liability exposure, the Washington State Supreme Court has unanimously ruled that the state’s trial courts lacked jurisdiction to take action against a physician over care he delivered in Idaho.
The case pertained to a tragedy resulting from injuries that occurred during a high-school football game in Washington involving a player who was examined and cleared to play by his physician in Idaho.
Andrew “Drew” Swank was a 17-year-old Idaho resident who attended Valley Christian School, a private institution in Spokane Valley, Washington. On Sept. 18, 2009, he reported having headaches and neck pain after a hard hit to his head during a high-school football game in Washington and he was examined three days later by Timothy Burns, MD, in Coeur d’Alene, Idaho.
Dr. Burns, who had been Swank’s primary care physician since childhood, prescribed ibuprofen and told him not to participate in contact sports for three days. The physician added that if Swank experienced headaches again after playing football, the boy should avoid contact sports for a week, according to the factual summary provided in the court ruling, written by Justice Charles K. Wiggins.
Two days later, Swank’s mother called Dr. Burns to tell him that Drew’s headaches had stopped and asked him to provide written clearance for the boy to play in a football game in Washington that week. The written release was required under a new Washington statute.
During his next game, Drew was said to appear sluggish, confused and slow to respond. Witnesses said this angered the coach, who yelled at Drew while jerking his face mask up and down. Drew returned to the game, was hit hard by an opposing player, staggered to the sideline and collapsed, according to the court. Two days later he died.
Three years later, his parents filed a lawsuit against the school, the volunteer coach, and Dr. Burns, on whose behalf the Litigation Center of the American Medical Association and State Medical Societies filed an amicus brief that was joined by the Washington, Oregon and Idaho medical associations, as well as the Idaho Academy of Family Physicians.
“When Drew Swank died, the Swank family suffered a terrible loss,” the Litigation Center brief states. “The medical associations represent physicians who strive every day to help patients like Drew and their families. But accepting the argument the Swanks make here will hurt, not help, the effort to promote effective medical care in our state and across the nation.”
The state Supreme Court ruled that Washington courts did not have jurisdiction over the care Dr. Burns provided. In so doing, they agreed with a 1992 precedent cited in the amicus brief, Lewis v. Bours, which involved the birth of a baby in an Oregon clinic who later died in Washington.
“We have emphasized,” Wiggins wrote, “that provision of medical care, as a personal service, is strongly tied to the location where those services are performed.”
With Drew Swank, the court noted that care was not provided in the state where the injury occurred.
“Since Dr. Burns provided medical care solely in Idaho, Washington cannot exercise personal jurisdiction,” Wiggins added. “All relevant actions that Dr. Burns took occurred in Idaho: Dr. Burns examined Drew in Idaho, he wrote and signed the note releasing Drew to play football in Idaho, and he left that note in the Idaho office to be picked up by Drew's mother. Even though Drew's injuries manifested in Washington ... personal jurisdiction is improper because the relevant medical care Dr. Burns provided was rendered in Idaho and the tort is considered to have taken place there. As a result, we hold that the trial court did not have personal jurisdiction over Dr. Burns and affirm the trial court's grant of summary judgment.”
The Swank family did not ask the court to overrule the precedent set in the Lewis case, but instead asked for a “results-oriented exception,” something the Litigation Center argued against in its brief.
“Allowing the jurisdictional inquiry to focus on where a patient intends to go after treatment would erect barriers to health care of the sort the court has long sought to avoid,” the Litigation Center brief states. “If malpractice were to become a ‘portable tort,’ physicians may feel compelled to interrogate patients about their residence and travel plans, and to decide on that basis whether to provide care.”
The court agreed. The nine Washington justices did rule that the family had the right to sue the coach and the school.
