FILED OCTOBER 25, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
LORI A. SWEENEY, and JEROLD L. ) No. 32486-9-111 SWEENEY, husband and wife, ) ) Appellants, ) ) ORDER DENYING MOTION V. ) FOR RECONSIDERATION, ) DENYING ENLARGEMENT ADAMS COUNTY PUBLIC HOSPITAL ) OF TIME TO FILE MOTION TO DISTRICT NO. 2, d/b/a EAST ADAMS ) PUBLISH, AND AMENDING RURAL HOSPITAL; and ) OPINION ) ALLEN D. NOBLE, PA-C and JANE ) DOE NOBLE husband and wife and the ) marital community thereof, ) ) Respondents. ) )
THE COURT has considered appellant's motion for reconsideration and motion to
enlarge time to publish opinion and is of the opinion the motions should be denied.
Therefore,
IT IS ORDERED, the motion for reconsideration and the motion to enlarge time to
publish opinion of this court's decision of August 2, 2016, is hereby denied.
IT IS FURTHER ORDERED the opinion filed August 2, 2016, is hereby
withdrawn; a new opinion will be filed this day and has been amended as follows:
The portion of the first full paragraph on page 14 that read:
The record shows Ms. Sweeney sought treatment from Dr. Dunlap in 2010 and again in 2012. There was no continuing course of care between 2010 and 2012. Furthermore, there is no showing the 2012 surgery was due to negligence in 2010. Finally, the negligence allegations relate to the care provided in 2010. There is no allegation Dr. Dunlap provided substandard care in 2012.
shall be amended as follows:
The record shows Ms. Sweeney sought treatment from Dr. Dunlap in 2010 and again in 2012. There was no continuing course of care between 2010 and 2012. Furthermore, there is no showing the 2012 surgery was due to negligence in 2010. Finally, the negligence allegations relate to the care provided in 2010. There is no allegation Dr. Dunlap provided substandard care in 2012. 2
2 Even if the issue had been presented, the affidavits of the defense experts do not satisfy Keck. There is no showing what a reasonable doctor would or would not have done during the 2012 surgery, or that Dr. Dunlap failed to meet those standards. Keck, 184 Wn.2d at 371. Merely alleging a continuing course of conduct does not revive a claim that appellants initially had waived.
PANEL: Judges Korsmo, Siddoway, Pennell
FOR THE COURT: FILED OCTOBER 25, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
LORI A. SWEENEY, and JEROLD L. ) SWEENEY, husband and wife, ) No. 32486-9-111 ) Appellants, ) ) v. ) ) UNPUBLISHED OPINION ADAMS COUNTY PUBLIC HOSPITAL ) DISTRICT NO. 2, d/b/a EAST ADAMS ) RURAL HOSPITAL; and ) ) ALLEN D. NOBLE, PA-C and JANE ) DOE NOBLE husband and wife and the ) marital community thereof, ) ) Respondents. )
KORSMO, J. - Lori Sweeney and her husband appeal from the dismissal at
summary judgment of her medical malpractice action against the physician assistant who
initially treated her and the orthopedic surgeon who subsequently performed surgeries on
her injured right shoulder. We affirm the dismissal of the action against the surgeon, but
conclude that there are unresolved factual questions concerning the claims against the
physician assistant and his employer, the Adams County Public Hospital District No. 2. No. 32486-9-III Sweeney v. Adams County Hosp., et al
FACTS
Ms. Sweeney suffered a shoulder injury in a fall at a Ritzville gas station and
sought treatment at the emergency room at the East Adams Rural Hospital (EARH).
There she was seen by physician's assistant Allen D. Noble. The hospital is not equipped
with a magnetic resonance imager, so Mr. Noble had x-rays taken of the shoulder. The x-
ray results were uploaded to the Internet and eventually were seen by Dr. James Dunlap.
Mr. Noble diagnosed Ms. Sweeney with a dislocated shoulder and humeral head
facture with a 1 cm displacement. Mr. Noble consulted with Dr. Dunlap in Spokane.
The two decided the best plan of care was to first manipulate the shoulder back into
place. Dr. Dunlap recommended Mr. Noble perform a closed reduction of the shoulder
dislocation. A closed reduction is a medical maneuver involving physical manipulation
of the shoulder in an effort to pop it back into its socket. It is referred to as a closed
reduction because it is done without surgery.
Mr. Noble attempted a closed reduction of the dislocation. The first two attempts
were unsuccessful. On the third attempt, Mr. Noble felt a "pop" suggesting the humerus
head had moved into the shoulder socket. Clerk's Papers (CP) at 92. However, a post-
reduction x-ray showed that while the humerus had moved into better alignment, the
humoral head remained inferiorly and anteriorly displaced and a comminuted fracture (a
fracture in which the bone is splintered or crushed into numerous pieces) was now
2 No. 32486-9-III Sweeney v. Adams County Hosp., et al
visible. The post-reduction x-ray showed separation of the humeral head from the lower
part of the bone.
After viewing the post-reduction x-ray, Mr. Noble again contacted Dr. Dunlap.
Ms. Sweeney was transferred to Sacred Heart Medical Center in Spokane. Dr. Dunlap
performed surgery on Ms. Sweeney's right shoulder three days later on April 28, 2010.
Dr. Dunlap provided follow up care and believed the surgery was successful.
Two years later, Ms. Sweeney returned to Dr. Dunlap because she had suffered a
rotator cuff tear. Dr. Dunlap performed a surgical repair of the right shoulder's rotator
cuff on April 4, 2012.
In late 2012, the Sweeneys consulted an attorney about a possible medical
negligence claim due to continued complications with Ms. Sweeney's shoulder. Counsel
met with Dr. Dunlap regarding his role in Ms. Sweeney's April 2010 treatment. He
assured Dr. Dunlap he did not intend to name him as a defendant at that time and his
theory of negligence was against Mr. Noble and EARH. The Sweeneys' attorney brought
Ms. Sweeney's medical records to the meeting. The records showed Dr. Dunlap
consulted with Mr. Noble while Ms. Sweeney was being treated at EARH. During the
meeting, counsel inquired about which x-rays Dr. Dunlap had reviewed and when he had
reviewed them. Dr. Dunlap reported that he had no recollection of seeing the pre-
reduction x-rays at the time of his consultation with Mr. Noble but remembered the post-
reduction x-rays.
3 No. 32486-9-III Sweeney v. Adams County Hosp., et al
On April 23, 2013, the Sweeneys filed a medical malpractice claim against Mr.
Noble and EARH. The Sweeneys elected not to include Dr. Dunlap as a defendant.
During discovery, the Sweeneys obtained a document known as an "Exam Audit
Trail," that identified who had access to the x-rays on the day Ms. Sweeney injured her
shoulder. The audit trail showed Dr. Dunlap had access to the pre-reduction x-rays
during his April 25, 2010 consultation with Mr. Noble. On January 15, 2014, the
Sweeneys amended their complaint to include a negligence claim against Dr. Dunlap.
Both Mr. Noble and Dr. Dunlap requested summary judgment dismissal of the
Sweeneys' claims. In support of Mr. Noble's summary judgment motion, he submitted a
declaration from Dr. James Nania, a board certified emergency medicine physician with
30 years of experience, who has reduced approximately 200 dislocated shoulders. Dr.
Nania opined Mr. Noble complied with the applicable standard of care under the
circumstances confronting him on April 25, 2010. On the issue of causation, Dr. Nania
specifically described the maneuvers used by Mr. Noble during the three attempts to
reduce Ms. Sweeney's dislocation and opined the maneuvers did not involve sufficient
forces or torque to produce any new fracturing of Ms. Sweeney's shoulder. In response,
the Sweeneys provided a declaration from Dr. Steven R. Graboff, an orthopedic surgeon
who opined the culmination of Mr. Noble's three attempts to reduce Ms. Sweeney's
shoulder dislocation caused a severely comminuted fracture in at least 3 parts of the right
shoulder. Ms. Sweeney also submitted a declaration from physician's assistant, Jeffrey
4 No. 32486-9-III Sweeney v. Adams County Hosp., et al
Nicholson, PhD, who opined as a proximate cause of the breach of the standard of care
for emergency physician's assistants, Ms. Sweeney sustained what is likely a permanent
injury to her right upper extremity.
The trial court found Ms. Sweeney had submitted sufficient expert testimony to
raise a material issue of fact on whether Mr. Noble complied with the standard of care.
But the court found the Sweeneys had not raised a material issue of fact with respect to
causation. In its oral ruling, the court concluded the Sweeneys' "argument fails on the
causation element." Report of Proceedings (RP) at 56. The trial court granted summary
judgment in favor of Mr. Noble.
Dr. Dunlap argued summary judgment was appropriate because the claim was
untimely. The trial court agreed, finding the amended complaint was filed after the three-
year statute of limitations for medical malpractice claims had run. See RCW 4.16.350.
The court further found CR 15's relation-back principles were of no assistance to the
Sweeneys because Dr. Dunlap did not have notice that he would be sued; the court
reasoned that the "case fails because a new party did not receive notice that he was a
target defendant. In fact, he was told just the opposite." RP at 58. The court also
rejected the Sweeneys' contention that the "continuing treatment" doctrine prevented the
limitations period from beginning to run until after the 2012 rotator cuff surgery; the
court observed there was no connection between the 2010 treatment and the 2012
treatment.
5 No. 32486-9-III Sweeney v. Adams County Hosp., et al
The Sweeneys appealed to this court. A panel heard oral argument and, after
consulting counsel at argument, stayed the matter pending the decision in Keck v. Collins,
184 Wn.2d 358,357 P.3d 1080 (2015). After the decision issued in Keck, the parties
filed supplemental briefs and a different panel again heard oral argument in the matter.
ANALYSIS
The issues presented are whether the trial court appropriately granted summary
judgment as to each defendant. After briefly considering the standard of review, we will
consider first the claim against Mr. Noble and the hospital before turning to the claim
against Dr. Dunlap.
Summary judgment is appropriate when the pleadings, affidavits, depositions, and
admissions on file demonstrate there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter oflaw. Berger v. Sonne/and, 144 Wn.2d 91,
102, 26 P .3d 257 (2001 ). The moving party bears the burden of demonstrating there is no
genuine dispute as to any material fact. Id: at 102. This court engages in the same
inquiry as the trial court when reviewing an order for summary judgment. Id. All facts
and reasonable inferences are considered in a light most favorable to the nonmoving
party. Id. at 102-03. All questions of law are reviewed de novo. Id. at 103. Summary
judgment also is proper if the plaintiff lacks competent medical evidence to establish a
prima facie case. Young v. Key Pharms., Inc., 112 Wn.2d 216,225, 770 P.2d 182 (1989),
overruled on other grounds by, 130 Wn.2d 160 (1996). If a defendant files a motion
6 No. 32486-9-III Sweeney v. Adams County Hosp., et al
alleging the lack of such evidence, the plaintiff must then present competent evidence to
rebut the defendant's initial showing of the absence of a material issue of fact. Id. at 227.
Medical malpractice cases are primarily statutory causes of action. RCW
7.70.040(1) provides that a plaintiff must prove "[t]he health care provider failed to
exercise that degree of care, skill, and learning expected of a reasonably prudent health
care provider at that time in the profession or class to which he or she belongs, in the
state of Washington, acting in the same or similar circumstances." The statutory
definition of "health care provider" includes physicians, physician assistants, nurses, and
any entity employing such persons, including hospitals or an employee or agent thereof
acting in the course and scope of his or her employment. RCW 7.70.020(1), (3).
A plaintiff must next show the failure to exercise the necessary degree of care,
skill, or learning "was a proximate cause of the injury complained of." RCW
7.70.040(2). "The applicable standard of care and proximate causation generally must be
established by expert testimony." Grove v. PeaceHealth St. Joseph Hosp., 182 Wn.2d
136, 144, 341 P.3d 261 (2014) (citing Berger, 144 Wn.2d at 111)). This medical
testimony must be based on a reasonable degree of medical certainty. McLaughlin v.
Cooke, 112 Wn.2d 829,836, 774 P.2d 1171 (1989).
Physician Assistant Noble and EARH
The trial court dismissed the action against Mr. Noble and the hospital in part on
the basis that the plaintiffs' expert's affidavit was too conclusory. This ruling requires us
7 No. 32486-9-111 Sweeney v. Adams County Hosp., et al
to consider in some detail the decision in Guile v. Ballard Community Hospital, 70 Wn.
App. 18, 851 P .2d 689 ( 1993 ), as well as the decision in Keck.
In Guile, in response to a Young-type summary judgment motion arguing that the
plaintiff lacked evidence to support her claim, the plaintiffs expert submitted an affidavit
stating that the plaintiffs injury "was caused by faulty technique on the part of the"
defendant surgeon. Id. at 26. Division One of this court characterized this statement as
"merely a summarization of Guile's postsurgical complications, coupled with the
unsupported conclusion" that "faulty technique" caused the injury. Id. Summary
judgment in favor of the doctor was affirmed because the plaintiff lacked an affidavit
"that alleged specific facts establishing a cause of action." Id. at 27.
Keck involved a complicated procedural history that saw the plaintiffs expert
filing successive affidavits in opposition to a summary judgment motion. 184 Wn.2d at
364-366. The trial court struck the third affidavit as untimely, but this court determined
that the affidavit should have been admitted and found that it sufficed to defeat summary
judgment. Id. at 367. This court also determined that the second affidavit, timely
submitted, was conclusory and did not avert summary judgment. Id. The Washington
Supreme Court agreed that the trial court had erred in striking the third affidavit, but also
concluded that this court had erred in finding the second affidavit insufficient. Id. at 368-
371.
8 No. 32486-9-III Sweeney v. Adams County Hosp., et al
The court distinguished Guile, agreeing that the plaintiffs affidavit there
essentially said that a reasonable doctor would not use a faulty technique and failed to
state how the defendant had acted negligently. Id. at 373. In contrast, the court
concluded that the affidavits in Keck had stated both a standard of care and breach of that
standard when it stated the defendant doctors had "performed multiple operations without
really addressing the problem of non-union and infection." Id. at 371. The expert also
opined that the defendant doctors should have referred the plaintiff to doctors qualified to
treat the problems they did not treat. The court concluded that this statement, too,
identified another breach of care by the defendant doctors. Id. at 372.
As construed in Keck, we believe Guile stands for the proposition that an expert
must identify facts that establish the plaintiffs case rather than simply state conclusory
opinions. With that understanding, we turn to the affidavit of plaintiffs' expert
addressing the issue of causation involving Mr. Noble. 1
Plaintiffs' experts here stated sufficient facts to avoid summary judgment on
causation. Dr. Patten and Dr. Graboff disputed whether the bone was broken before Mr.
Noble addressed the shoulder dislocation. Dr. Graboff and Mr. Nicholson both indicated
that there was insufficient sedation when Mr. Noble worked on the shoulder. Finally, Mr.
1 No one disputes that there is a question of fact concerning whether Mr. Noble breached the standard of care.
9 No. 32486-9-111 Sweeney v. Adams County Hosp., et al
Nicholson stated that Mr. Noble should not have attempted the reduction on his own and
should not have attempted the second and third maneuvers once the first effort failed.
These affidavits all present questions of fact that, if believed by the jury, would
support a verdict in favor of the plaintiffs on a theory that Mr. Noble caused the broken
shoulder. Keck, 184 Wn.2d at 370, 374. Accordingly, we conclude that the trial court
erred in granting summary judgment in favor of Mr. Noble and the hospital.
Dr. Dunlap
In contrast, the question presented with respect to Dr. Dunlap is whether the trial
court correctly concluded that the statute of limitations barred the claim against him. We
agree with the trial court that it did.
There are two statutes of limitation applicable to a medical malpractice action,
each having a different accrual date. RCW 4.16.350 provides that a lawsuit alleging
medical malpractice must be filed within three years of the "act or omission" giving rise
to the claim or one year after the patient "discovered or reasonably should have
discovered" that the injury was caused by the act or omission in question. The statute of
limitations is an affirmative defense on which the defendant bears the burden of proof.
Haslundv. City of Seattle, 86 Wn.2d 607, 620-621, 547 P.2d 1221 (1976). Whether a
case was filed within the statute of limitations period is normally a question of law to be
determined by a judge. Rivas v. Overtake Hosp. Med. Ctr., 164 Wn.2d 261,267, 189
P.3d 753 (2008).
10 No. 32486-9-III Sweeney v. Adams County Hosp., et al
Ms. Sweeney was injured on April 25, 2010 and filed an amended complaint,
naming Dr. Dunlap as a new defendant on January 15, 2014, more than three years after
the date of injury. The Sweeneys, however, argue their amended complaint relates back
to their original complaint under CR 15(c).
"CR 15(c) allows plaintiffs who mistakenly sue incorrect defendants to amend
their complaints and add the correct defendants, provided the rule's requirements are
satisfied." Martin v. Dematic, 182 Wn.2d 281, 292-293, 340 P.3d 834 (2014). The rule
has one judicially-created and two textual requirements. The text requires that for a
claim to relate back under CR 15(c), the added party must have received notice of the
action within the limitations period such that he or she will not be prejudiced in
maintaining his or her defense on the merits. CR 15(c)(l). Additionally, the added party
must have known or should have known that but for a mistake concerning his or her
identity, the action would have been brought against him or her. CR 15(c)(2). The
judicially-created requirement is that a plaintiff adding a new party can do so only if the
plaintiffs delay was not due to inexcusable neglect. Martin, 182 Wn.2d at 288. "The
party seeking to amend its complaint has the burden to prove those conditions are
satisfied." Id. at 288-289.
Here, the Sweeneys were aware of Dr. Dunlap's role in Ms. Sweeney's care. They
obtained her medical records, which clearly state that on April 25, 2010, Mr. Noble
consulted with Dr. Dunlap in Spokane and Dr. Dunlap recommended a closed reduction.
11 No. 32486-9-III Sweeney v. Adams County Hosp., et al
They even interviewed Dr. Dunlap about his involvement prior to the expiration of the
statute of limitations period. The Sweeneys indicated to Dr. Dunlap he was not going to
be named a defendant. Indeed, the Sweeneys did not name Dr. Dunlap as a defendant
when the original complaint was filed.
The Sweeneys claim they only amended their complaint because they learned,
after filing their complaint, that Dr. Dunlap reviewed x-rays before the closed reduction
was attempted. But, the April 25, 2010 medical records, which the Sweeneys had prior to
filing their complaint, state that Mr. Noble "called Dr. Dunlap (ortho) at this point and he
reviewed films on stentor. He recommended us attempting closed reduction." CP at 102.
While in a subsequent interview with Dr. Dunlap, the doctor stated that he could not
recall looking at the x-rays prior to the recommendation, this is not enough to justify
omitting Dr. Dunlap as a defendant given the other information obtained by the Sweeneys
prior to the expiration of the limitations period.
Accordingly, Dr. Dunlap was not on notice of the action within the limitations
period and he did not know the action would be brought given counsel's assurance he
was not going to be included as a defendant. Moreover, the delay was based on
inexcusable neglect. "Inexcusable neglect exists when the identity of the defendant is
readily available and the plaintiff provides no reason for failing to name the defendant."
Martin, 182 Wn.2d at 290 (citing S. Hollywood Hills Citizens Ass'nfor Pres. of Neigh.
Safety & Env't v. King County, 101 Wn.2d 68, 78,677 P.2d 114 (1984) (finding
12 No. 32486-9-III Sweeney v. Adams County Hosp., et al
inexcusable neglect where "the information necessary to properly implead the parties was
readily available" but the plaintiffs attorney "simply did not inquire")). It is not
excusable if the delay is due to "' a conscious decision, strategy or tactic.'" Id. at 290
(quoting Stansfield v. Douglas County, 146 Wn.2d 116, 121, 43 P.3d 498 (2002)).
Reasonable minds could conclude the Sweeneys either mistakenly or consciously decided
to exclude Dr. Dunlap as a defendant before the three-year limitations period ran. Thus,
CR 15's relate-back principles do not apply.
The Sweeneys also argue the treatment was ongoing and continuous, culminating
with the rotator cuff repair, and that they amended their complaint within three years of
that final treatment. In addressing this argument, Caughell v. Group Health Cooperative
of Puget Sound, 124 Wn.2d 217, 876 P.2d 898 (1994), is instructive. There, the court
clarified the statute of limitations for medical negligence actions where the plaintiff
alleges continuing negligent treatment. Under Caughell, the three-year statute of
limitations under RCW 4.16.350 does not accrue and begin to run until the last date of
negligent medical treatment. In Caughell, the plaintiff alleged damages resulting from
her physician's ongoing and continuing prescription, over more than 20 years, of a
specific medication. Id. at 220. The court clarified that the acts must be "part of a
substantially uninterrupted course of treatment" to extend the statutory period. Id. at 233.
The Sweeneys cannot make this showing.
13 No. 32486-9-III Sweeney v. Adams County Hosp., et al
The record shows Ms. Sweeney sought treatment from Dr. Dunlap in 2010 and
again in 2012. There was no continuing course of care between 2010 and 2012.
Furthermore, there is no showing the 2012 surgery was due to negligence in 2010.
Finally, the negligence allegations relate to the care provided in 2010. There is no
allegation Dr. Dunlap provided substandard care in 2012. 2 Therefore, even if the doctrine
were applicable to this case, the limitations period would have begun to run in 2010, the
date of the last allegedly negligent treatment, and expired well before the January 15,
2014 amendment that added Dr. Dunlap. "' Under the modified continuing-course-of-
treatment rule, claimants must allege that the last negligent act, not simply the end of
treatment itself, occurred within 3 years of filing suit.'" Young Soo Kim v. Choong-Hyun
Lee, 174 Wn. App. 319, 325, 300 PJd 431 (2013) (quoting Caughell, 124 Wn.2d at 229).
The Sweeneys have not met this burden. The amended complaint against Dr. Dunlap is
untimely under RCW 4.16.350's three-year limitations period.
The claim also fails under RCW 4.16.350's alternative one-year limitations period.
A medical malpractice lawsuit may be filed within one year after the patient "discovered
or reasonably should have discovered" that the injury was caused by the act or omission
2 Even if the issue had been presented, the affidavits of the defense experts do not satisfy Keck. There is no showing what a reasonable doctor would or would not have done during the 2012 surgery, or that Dr. Dunlap failed to meet those standards. Keck, 184 Wn.2d at 3 71. Merely alleging a continuing course of conduct does not revive a claim that appellants initially had waived.
14 No. 32486-9-111 Sweeney v. Adams County Hosp., et al
in question. RCW 4.16.350. The Sweeneys argue that once they learned of the x-ray
review date they amended their complaint within one year. But, as discussed above, this
argument is without merit because the Sweeneys did not just "discover" at that point Dr.
Dunlap's involvement; they were already aware. More importantly, the Sweeneys did
not just then discover the shoulder injury. Accordingly, the facts of this case do not
trigger RCW 4.16.350's one year limitation.
The trial court correctly dismissed the action against Dr. Dunlap.
The judgment is affirmed in part, reversed in part, and remanded for further
proceedings.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR: