A Washington high-school football player collapsed on the field in the middle of a 2009 game and later died. The Idaho physician who treated him for a concussion the week before was named in a Washington lawsuit brought by the teenager’s family. But the courts have therefore held this would be inconsistent with Washington jurisdictional law regarding medical liability cases and could affect physicians’ ability to provide care to out-of-state patients.

When Drew Swank was 17, he suffered a concussion during a high-school football game in Washington. One week later, a physician in Idaho, as well as his coach, cleared him to play. In that next game, his performance was slow and uncoordinated, according to the lawsuit. And after taking a big hit, Swank collapsed and was taken to the hospital where he died a few days later.

At stake in Swank v. Valley Christian School is whether the state of Washington can assert “long-arm” jurisdiction over the Idaho physician who provided medical treatment to Swank, an Idaho resident who later died in Washington, allegedly as a result of the physician’s negligence.

The Washington Court of Appeals affirmed dismissal of the Swanks’ claim against the Idaho physician in May, and now the Swanks are seeking review of that decision in the Washington Supreme Court before the case returns to the trial court.

Jurisdiction issues

Though the boy’s death is a tragedy, naming the Idaho physician in the lawsuit is inconsistent with Washington’s “long-arm” statute. In Lewis v. Bours (1992), a unanimous decision held that “in the case of professional malpractice, a tort is not committed in Washington if the alleged act of malpractice was committed out of state even though the injuries may manifest themselves in Washington.”

The Swanks are asking the court to create a result-oriented exception to Lewis that is analytically indefensible, runs counter to public policy and offends due process, the Litigation Center of the AMA and several other medical societies argue in an amicus brief. “The Swanks urge the court to allow Washington courts to exercise jurisdiction over a nonresident physician if the physician knew or should have known the patient would be traveling to Washington, and if Washington law gives the patient a claim based on the physician’s provision of care and exercise of medical judgment.”

This exception would run counter to the Lewis decision. The Swanks’ argument “would offend due process by making personal jurisdiction depend not on the nonresident physician’s acts, but rather on the unilateral acts of patients,” the brief says.

Impact on patient care

A reversal of the Lewis decision could also harm public health. “Physicians may feel compelled to interrogate patients about their residence and travel plans, and to decide on that basis whether to provide care,” the brief says. For example, a physician in Oregon might decline to treat Washington residents who suffer injuries while on vacation to avoid the possibility of being sued in Washington for complications that manifest when the patient returns home.

Or an Idaho physician might not agree to treat a Washington resident injured while traveling through Idaho on the way home from Montana.

“The Swanks’ proposed Lewis exception would also disrupt continuity of care,” the brief says. “An Idaho physician who typically sees his Idaho patient in Idaho must not be dissuaded from answering his Idaho patient’s phone call or email, seeking clinical advice, on the basis [that] the Idaho patient called or emailed from another state.”

The exception could also compel physicians to advise patients to see a new physician in the state in which the patient is located when the patient has a need for medical advice or follow-up care, the brief says. “Both of these scenarios disrupt continuity of care and strain the physician-patient relationship, a relationship that can and should be allowed to develop without regard to the political boundaries that are state lines.”

“When Drew Swank died, the Swank family suffered a terrible loss,” the brief adds. “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.”

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