IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANGE WANG, No. 87043-2-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION KAISER FOUNDATION HEALTH PLAN OF WASHINGTON, and LANCE HO,
Respondents.
SMITH, J. — Ange Wang received orthopedic surgery for joint fusion in
May 2017. In September 2023, Wang sued Dr. Lance Ho, asserting medical
malpractice. The suit was dismissed without prejudice. Wang again sued Dr. Ho
and added Kaiser Foundation Health Plan of Washington as a defendant in
March, 2024. Kaiser moved for summary judgment, contending the claim was
time barred. The trial court granted Kaiser’s motion. Wang appeals, arguing
sufficient evidence in the record exists to create a question of fact as to when he
discovered the basis for his medical malpractice claim.
We conclude the court did not err when it granted Kaiser’s CR 56 motion
for summary judgment and dismissed the case with prejudice. We affirm.
FACTS
In March 2017, Ange Wang met with Dr. Lance Ho at Kaiser Permanente
Orthopedics concerning pain in his left foot. Dr. Ho diagnosed Wang with “left No. 87043-2-I/2
moderate bunion and moderate 1st metatarsal phalangeal arthritis” and
performed a left 1st metatarsophalangeal joint fusion on May 5, 2017. Wang had
several follow-up appointments, where he complained of continued pain and
stiffness. Dr. Ho stressed the importance of Wang wearing his CAM 1 boot for six
weeks post-operative (post-op). In several of his follow-up visits, Wang admitted
to only wearing his boot “sometimes” or “very little” and taking it off when he was
at home. At Wang’s six-week post-op visit, Dr. Ho instructed him to wear his
boot another four weeks. At this visit, Dr. Ho determined Wang’s foot was
healing well with no sign of infection.
In December 2019, Wang was still experiencing pain in his foot and he
met with Dr. Craig Clifford at Virginia Mason. Dr. Clifford informed Wang that a
nonunion to the affected area had occurred, and the two discussed the option of
fusion revision surgery. Wang did not move forward with surgery at that time.
In March 2020, Wang received a letter from an attorney, presumably in
response to an inquiry from Wang, concerning his foot surgery. The letter stated,
in pertinent part: I have reviewed the records you provided to us (38 pages). Based on the records provided there is no clear indication of a breach of standard of care. In order to determine that, I would at a minimum need records from other physicians who have treated you for your foot condition after the surgery of [redacted]. We are going to be hard pressed against the statute of limitations (May 5, 2020) on this case to send records out and obtain an opinion on whether the treatment provided by Dr. Lance Ho met the standard of care.
1 CAM is the abbreviation for “controlled ankle movement.”
2 No. 87043-2-I/3
In April 2020, Wang requested mediation with Dr. Ho and Kaiser under
RCW 7.70.110. In the mediation request, Wang alleged Dr. Ho’s surgery “fail[ed]
to follow the standard of care of reasonable and prudent health care providers
under the circumstances.” Wang stated he was unhappy with the results and
had been in pain “[s]ince the surgery in 2017.” In late April 2020, Kaiser
responded to Wang acknowledging his mediation request. Kaiser informed
Wang his request for mediation extended the statute of limitations on his medical
negligence claim. Kaiser included the elements that must be established for a
claim of medical negligence and told Wang his claim would be kept open until
May 5, 2021, at which time the statute of limitations would expire.
In December 2020, Kaiser sent Wang a letter informing him that his claim
had been reviewed and the record did not indicate that Dr. Ho breached the
standard of care when performing Wang’s surgery. The letter reiterated the
required elements of a medical malpractice claim and noted there must be expert
medical testimony to show negligence. Kaiser stated the “painful non-union at
the fusion site . . . was not due to negligence by any health care provider, but
rather [was] a potential outcome of this surgery without negligence.” The letter
concluded by reminding Wang the statute of limitations for his claim expired May
5, 2021.
In early April 2023, Wang went to urgent care after experiencing severe
foot pain. According to Wang, the doctor told him that the metal rod Dr. Ho
inserted in 2017 was at risk of breaking through the skin. Not wanting to go to
3 No. 87043-2-I/4
Kaiser for another surgery, Wang requested a referral. In August 2023, Wang
underwent surgery at Virginia Mason to fix the nonunion.
In May 2023, Wang lodged a complaint with the Washington State
Department of Health against Dr. Ho and Kaiser. In his complaint, Wang noted
he had been in extreme pain since the surgery in May 2017. Wang claimed he
had tried to contact Dr. Ho and Kaiser numerous times after the surgery, but
never received a response.
The Washington Medical Commission closed Wang’s complaint without
investigation and notified Wang. Wang requested reconsideration and included
progress notes, claim documents, and photos of his foot as new information.
The Commission notified Wang that his claim was reviewed by another panel,
but the panel did not authorize further action, and the complaint would remain
closed.
In September 2023, Wang initiated a suit against Dr. Ho claiming medical
malpractice arising from his foot surgery. The case was dismissed without
prejudice for failure to properly serve Dr. Ho. Wang initiated a new suit in March
2024, naming both Dr. Ho and Kaiser as defendants. Dr. Ho and Kaiser moved
for summary judgment, claiming the expiration of the statute of limitations barred
Wang’s claims and Wang did not present any expert testimony to support his
claim of violation of the standard of care and proximate cause. The court granted
the motion for summary judgment.
Wang appeals.
4 No. 87043-2-I/5
ANALYSIS
Standard of Review
We review summary judgment orders de novo. Keck v. Collins, 184
Wn.2d 358, 370, 357 P.3d 1080 (2015). We consider all evidence and
reasonable inferences in the light most favorable to the non-moving party.
Davies v. MultiCare Health Systems, 199 Wn.2d 608, 616, 510 P.3d 346 (2022).
“Summary judgment is proper if there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law.” Davies, 199 Wn.2d
at 616. A genuine issue of material fact exists when “the evidence is sufficient
for a reasonable jury to return a verdict for the nonmoving party.” Reyes v.
Yakima Health District, 191 Wn.2d 79, 86, 419 P.3d 819 (2018).
Statute of Limitation
Wang contends the trial court erred in granting summary judgment
because sufficient evidence existed in the record to create a question of
fact as to when he discovered the basis for his medical malpractice claim.
Kaiser asserts Wang’s claim is time barred because Wang knew of his
injury immediately after the surgery or, in the alternative, early enough that
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ANGE WANG, No. 87043-2-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION KAISER FOUNDATION HEALTH PLAN OF WASHINGTON, and LANCE HO,
Respondents.
SMITH, J. — Ange Wang received orthopedic surgery for joint fusion in
May 2017. In September 2023, Wang sued Dr. Lance Ho, asserting medical
malpractice. The suit was dismissed without prejudice. Wang again sued Dr. Ho
and added Kaiser Foundation Health Plan of Washington as a defendant in
March, 2024. Kaiser moved for summary judgment, contending the claim was
time barred. The trial court granted Kaiser’s motion. Wang appeals, arguing
sufficient evidence in the record exists to create a question of fact as to when he
discovered the basis for his medical malpractice claim.
We conclude the court did not err when it granted Kaiser’s CR 56 motion
for summary judgment and dismissed the case with prejudice. We affirm.
FACTS
In March 2017, Ange Wang met with Dr. Lance Ho at Kaiser Permanente
Orthopedics concerning pain in his left foot. Dr. Ho diagnosed Wang with “left No. 87043-2-I/2
moderate bunion and moderate 1st metatarsal phalangeal arthritis” and
performed a left 1st metatarsophalangeal joint fusion on May 5, 2017. Wang had
several follow-up appointments, where he complained of continued pain and
stiffness. Dr. Ho stressed the importance of Wang wearing his CAM 1 boot for six
weeks post-operative (post-op). In several of his follow-up visits, Wang admitted
to only wearing his boot “sometimes” or “very little” and taking it off when he was
at home. At Wang’s six-week post-op visit, Dr. Ho instructed him to wear his
boot another four weeks. At this visit, Dr. Ho determined Wang’s foot was
healing well with no sign of infection.
In December 2019, Wang was still experiencing pain in his foot and he
met with Dr. Craig Clifford at Virginia Mason. Dr. Clifford informed Wang that a
nonunion to the affected area had occurred, and the two discussed the option of
fusion revision surgery. Wang did not move forward with surgery at that time.
In March 2020, Wang received a letter from an attorney, presumably in
response to an inquiry from Wang, concerning his foot surgery. The letter stated,
in pertinent part: I have reviewed the records you provided to us (38 pages). Based on the records provided there is no clear indication of a breach of standard of care. In order to determine that, I would at a minimum need records from other physicians who have treated you for your foot condition after the surgery of [redacted]. We are going to be hard pressed against the statute of limitations (May 5, 2020) on this case to send records out and obtain an opinion on whether the treatment provided by Dr. Lance Ho met the standard of care.
1 CAM is the abbreviation for “controlled ankle movement.”
2 No. 87043-2-I/3
In April 2020, Wang requested mediation with Dr. Ho and Kaiser under
RCW 7.70.110. In the mediation request, Wang alleged Dr. Ho’s surgery “fail[ed]
to follow the standard of care of reasonable and prudent health care providers
under the circumstances.” Wang stated he was unhappy with the results and
had been in pain “[s]ince the surgery in 2017.” In late April 2020, Kaiser
responded to Wang acknowledging his mediation request. Kaiser informed
Wang his request for mediation extended the statute of limitations on his medical
negligence claim. Kaiser included the elements that must be established for a
claim of medical negligence and told Wang his claim would be kept open until
May 5, 2021, at which time the statute of limitations would expire.
In December 2020, Kaiser sent Wang a letter informing him that his claim
had been reviewed and the record did not indicate that Dr. Ho breached the
standard of care when performing Wang’s surgery. The letter reiterated the
required elements of a medical malpractice claim and noted there must be expert
medical testimony to show negligence. Kaiser stated the “painful non-union at
the fusion site . . . was not due to negligence by any health care provider, but
rather [was] a potential outcome of this surgery without negligence.” The letter
concluded by reminding Wang the statute of limitations for his claim expired May
5, 2021.
In early April 2023, Wang went to urgent care after experiencing severe
foot pain. According to Wang, the doctor told him that the metal rod Dr. Ho
inserted in 2017 was at risk of breaking through the skin. Not wanting to go to
3 No. 87043-2-I/4
Kaiser for another surgery, Wang requested a referral. In August 2023, Wang
underwent surgery at Virginia Mason to fix the nonunion.
In May 2023, Wang lodged a complaint with the Washington State
Department of Health against Dr. Ho and Kaiser. In his complaint, Wang noted
he had been in extreme pain since the surgery in May 2017. Wang claimed he
had tried to contact Dr. Ho and Kaiser numerous times after the surgery, but
never received a response.
The Washington Medical Commission closed Wang’s complaint without
investigation and notified Wang. Wang requested reconsideration and included
progress notes, claim documents, and photos of his foot as new information.
The Commission notified Wang that his claim was reviewed by another panel,
but the panel did not authorize further action, and the complaint would remain
closed.
In September 2023, Wang initiated a suit against Dr. Ho claiming medical
malpractice arising from his foot surgery. The case was dismissed without
prejudice for failure to properly serve Dr. Ho. Wang initiated a new suit in March
2024, naming both Dr. Ho and Kaiser as defendants. Dr. Ho and Kaiser moved
for summary judgment, claiming the expiration of the statute of limitations barred
Wang’s claims and Wang did not present any expert testimony to support his
claim of violation of the standard of care and proximate cause. The court granted
the motion for summary judgment.
Wang appeals.
4 No. 87043-2-I/5
ANALYSIS
Standard of Review
We review summary judgment orders de novo. Keck v. Collins, 184
Wn.2d 358, 370, 357 P.3d 1080 (2015). We consider all evidence and
reasonable inferences in the light most favorable to the non-moving party.
Davies v. MultiCare Health Systems, 199 Wn.2d 608, 616, 510 P.3d 346 (2022).
“Summary judgment is proper if there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law.” Davies, 199 Wn.2d
at 616. A genuine issue of material fact exists when “the evidence is sufficient
for a reasonable jury to return a verdict for the nonmoving party.” Reyes v.
Yakima Health District, 191 Wn.2d 79, 86, 419 P.3d 819 (2018).
Statute of Limitation
Wang contends the trial court erred in granting summary judgment
because sufficient evidence existed in the record to create a question of
fact as to when he discovered the basis for his medical malpractice claim.
Kaiser asserts Wang’s claim is time barred because Wang knew of his
injury immediately after the surgery or, in the alternative, early enough that
the statute of limitations had expired when Wang brought his claim.
Because, looking at the evidence in the light most favorable to Wang, the
evidence shows that he should have reasonably discovered his injury by
2019 at the latest, we agree with Kaiser that his claim is barred by the
statute of limitations.
5 No. 87043-2-I/6
The statute of limitations to bring a medical malpractice claim is
“within three years of the act or omission alleged to have caused the injury
or condition, or one year of the time the patient or [their] representative
discovered or reasonably should have discovered that the injury or
condition was caused by said act or omission, whichever period expires
later.” RCW 4.16.350. However, if a party, in good faith, requests a
mediation to address the dispute related to the injury, the statute shall be
tolled for one year. RCW 7.70.110.
To determine whether a party should have reasonably discovered
the injury, we ask whether, after a plaintiff “ ‘is placed on notice by some
appreciable harm occasioned by another’s wrongful conduct,’ ” did the
plaintiff “ ‘make further diligent inquiry to ascertain the scope of the actual
harm’ ”? Clare v. Saberhagen Holdings, Inc., 129 Wn. App. 599, 603, 123
P.3d 465 (2005) (quoting Green v. American Pharmaceutical Co., 136
Wn.2d 87, 97, 960 P.2d 912 (1998)). The plaintiff has the burden to prove
the facts constituting the harm were not discoverable within the statute of
limitations. Clare, 129 Wn. App at 603. Generally, whether a party
exercised due diligence is a factual issue for the jury, precluding summary
judgment, Clare, 129 Wn. App at 603, but, “when reasonable minds could
reach but one conclusion, questions of fact may be determined as a
matter of law.” Clare, 129 Wn. App at 603.
Here, Wang claims he did not discover Dr. Ho’s malpractice until he
went to urgent care on April 8, 2023. But Wang clearly indicated he was
6 No. 87043-2-I/7
in pain and upset with the outcome of the surgery since 2017. In his
complaint to the Department, Wang stated he had been in pain since the
surgery, and he went back to Dr. Ho several times after the surgery
complaining of “severe pain.”
Even if Wang could show he did not discover the condition at the
time of surgery or shortly thereafter, his meeting with Dr. Clifford in 2019
indicates he was aware, or reasonably should have been aware, of a
problem with Dr. Ho’s surgery. Furthermore, after meeting with
Dr. Clifford, Wang communicated with an attorney concerning a “breach of
the standard of care” related to his foot surgery. Less than a month after
his visit with Dr. Clifford, Wang submitted a request for mediation with
Kaiser. In the mediation request, Wang stated the action giving rise to the
mediation “arises from treatment provided to Ange Wang in the Bellevue
Kaiser Permanente Medical Center around 05/05/17.”
If the meeting with Dr. Clifford is considered the date of discovery,
then Wang’s request for mediation in April 2020 was timely, and the
statute of limitations was tolled to May 5, 2021. This was communicated
to Wang in letters from Kaiser on April 29, 2020 and December 17, 2020.
But, even with this information, Wang did not initiate his complaint until
September 22, 2023—more than two years after the statute of limitations
ran out.
Because Wang discovered, or should have reasonably discovered,
the condition underlying his claim in 2019 at the latest—and potentially as
7 No. 87043-2-I/8
early as 2017—his complaint is barred by the statute of limitations.
Accordingly, the court did not err when it granted summary judgment. 2
We affirm.
WE CONCUR:
2 Wang also claims the trial court erred in granting summary judgment based on his lack of expert witness testimony. Because summary judgment was appropriate under RCW 4.16.350 and RCW 7.70.110, we do not reach this issue. But, even if we were to address the issue, expert testimony is generally necessary to establish a standard of care in a medical malpractice action. Harris v. Robert C. Groth, M.D., Inc., P.S., 99 Wn.2d 438, 449, 663 P.2d 113 (1983).