                                                                      FILED
                                                                  OCTOBER 17, 2019
                                                              In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

LORI A. SWEENEY, and JEROLD L.               )
SWEENEY, husband and wife,                   )        No. 36154-3-III
                                             )
                    Appellants,              )
                                             )
      v.                                     )
                                             )        UNPUBLISHED OPINION
JAMES N. DUNLAP, M.D. and JANE               )
DOE DUNLAP, husband and wife and the         )
marital community thereof; and               )
                                             )
PROVIDENCE HEALTH SERVICES,                  )
d/b/a PROVIDENCE ORTHOPEDIC                  )
SPECIALTIES, a Washington                    )
Corporation,                                 )
                                             )
                    Respondents.             )

      KORSMO, J. — This is the second time Lori Sweeney’s medical malpractice claim

against Dr. James Dunlap has been before this court following a successful motion for

dismissal at summary judgment. We reverse and remand for further proceedings.

                                         FACTS

      The significant facts governing this appeal are primarily procedural in nature. Ms.

Sweeney, a resident of Montana, suffered an injury to her right shoulder in April 2010
No. 36154-3-III
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when she tripped at a gas station in Ritzville. She was seen at the East Adams Rural

Hospital by physician assistant (PA-C), Allen Noble. He determined that her shoulder

was dislocated.

       Mr. Noble contacted Dr. Dunlap in Spokane before attempting a closed reduction

of the dislocation. After that reduction was performed, it was discovered that Ms.

Sweeney’s humerus was broken. Soon thereafter, Dr. Dunlap performed a partial

shoulder replacement on Ms. Sweeney. In April 2012, Dr. Dunlap performed a surgical

repair of the rotator cuff in Ms. Sweeney’s right shoulder.

       Ms. Sweeney sued Mr. Noble in Adams County Superior Court. In January 2014,

she added Dr. Dunlap to that case, alleging that he also was negligent in advising PA-C

Noble concerning the 2010 procedure. Dr. Dunlap ultimately prevailed on summary

judgment, successfully arguing that the claim was barred by the statute of limitations.

Ms. Sweeney appealed to this court in May 2014, asserting, among other claims, that Dr.

Dunlap was liable on the basis that he treated her continuously from 2010 to 2012.

       On June 17, 2014, Ms. Sweeney sued Dr. Dunlap in Spokane County Superior

Court, alleging that he provided negligent care “about April 25th, 2010, and continuing

thereafter into 2012.”1 Clerk’s Papers (CP) at 4. The Spokane County cause was stayed



       1
        The complaint in the Adams County case had alleged that the defendants “on or
about April 25th, 2010, and continuing thereafter . . .” breached the standard of care owed
to Ms. Sweeney. Clerk’s Papers (CP) (No. 32486-9-III) at 63.

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by agreement of the parties pending the outcome of the appeal in the Adams County case.

This court heard oral argument of the Adams County appeal on June 10, 2015, and then

stayed its decision pending the outcome of a case before the Washington Supreme Court. 2

       This court lifted its stay and heard argument again on March 15, 2016, after

allowing supplemental briefing. Thereafter, we issued an opinion that affirmed the

dismissal of the claim against Dr. Dunlap.3 In the course of rejecting Ms. Sweeney’s

argument that the negligence claim against Dr. Dunlap for the 2010 treatment was timely

in light of his continuing treatment of her through 2012 (a period within the statute of

limitations), we stated:

       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.

Sweeney, et vir. v. Adams County Pub. Hosp. Dist., et al., No. 32486-9-III, slip op. at 14

(Wash. Ct. App. Oct. 25, 2016) (unpublished), http://courts.wa.gov/opinions/pdf/324869

_opn.pdf.

       The opinion appended a footnote to the final sentence quoted above. It read:

       Even if the issue had been presented, the affidavits of the plaintiff’s experts
       do not satisfy Keck. There is no showing what a reasonable doctor would

       2
       Keck v. Collins, 184 Wn.2d 358, 357 P.3d 1080 (2015).
       3
       The dismissal of the claim against Mr. Noble was reversed and the matter
remanded to Adams County. We were advised at oral argument of this case that
Sweeney’s claim against Noble has been settled.

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       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.

Id. at n.2 (as amended Oct. 25, 2016).

       The stay of the Spokane County case eventually was lifted and Dr. Dunlap

ultimately moved for summary judgment. He argued that the claim was resolved by this

court’s decision in the Adams County appeal and, alternatively, that Ms. Sweeney lacked

evidence that he performed the 2012 surgery negligently. CP at 50-63. In response, Ms.

Sweeney argued that res judicata did not apply because this action related solely to the

2012 surgery, the Adams County case did not result in a judgment on the merits, and that

her expert provided evidence that Dr. Dunlap was negligent because he did not recognize

the need for augmentation material during the 2012 shoulder surgery. CP at 71-82. In

reply, Dr. Dunlap argued that res judicata applied and this court had already determined

that he was not negligent.

       The trial court granted summary judgment, ruling that the Spokane County claim

was barred by the decision in the Adams County appeal. Report of Proceedings at 23-24.

An order was entered to that effect. Ms. Sweeney timely appealed to this court. A panel

again heard oral argument of her appeal.




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                                           ANALYSIS

       The sole issue we reach is whether res judicata applied to the Spokane County

case in light of the ruling in the Adams County appeal.4 The previous appeal did not

address the alleged negligence in the 2012 surgery other than to rule it was not properly

part of that case.5 Accordingly, res judicata did not bar the current action.

       This court reviews a summary judgment de novo, performing the same inquiry as

the trial court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). The

facts, and all reasonable inferences to be drawn from them, are viewed in the light most

favorable to the nonmoving party. Id. If there is no genuine issue of material fact,

summary judgment will be granted if the moving party is entitled to judgment as a matter

of law. Id.

       The doctrine of res judicata, also known as claim preclusion, applies to related

lawsuits between parties. In general, a final ruling involving the same cause of action

between the same parties will govern subsequent cases involving the same action.

Hadley v. Cowan, 60 Wn. App. 433, 440-441, 804 P.2d 1271 (1991). See generally,



       4
         We need not assess whether plaintiff provided sufficient evidence that the 2012
surgery was negligently performed to defeat summary judgment since the trial court did
not weigh in on that topic and we believe the pleading should be amended in light of the
two appeals. Should the issue arise again, we suggest for clarity’s sake that affidavits
address only the 2012 surgery and not the time-barred 2010 treatment.
       5
         We also need not consider appellant’s argument that res judicata does not apply
to a previous judgment not based on the substantive merits of the case.

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Philip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60

WASH. L. REV. 805 (1985). There are four criteria that must be found in order to apply

the doctrine of res judicata. The two cases must involve: (1) the same subject matter, (2)

the same cause of action, (3) the same persons and parties, and (4) the quality of the

parties. Hadley, 60 Wn. App. at 441; Trautman, supra, at 812. Because res judicata

presents a legal question, this court’s review is de novo. Emerson v. Dep’t of Corr., 194

Wn. App. 617, 626, 376 P.3d 430 (2016).

       At its heart, this appeal involves an interpretation of language we used in the

previous appeal, set into the landscape of a res judicata claim. The determination in that

first appeal that the 2012 rotator cuff surgery was not before the trial court recognized

that the 2012 treatment was different than the 2010 treatment. The two matters fail the

identical subject matter and cause of action elements of res judicata.6

       Washington courts have not articulated a test for determining whether cases have

identical subject matter, and have generally dealt with this element in a cursory manner.

See Hayes v. City of Seattle, 131 Wn.2d 706, 712-713, 934 P.2d 1179 (1997); Hisle v.

Todd Pac. Shipyards Corp., 151 Wn.2d 853, 866, 93 P.3d 108 (2004); Gold Star Resorts,

Inc. v. Futurewise, 167 Wn.2d 723, 738, 222 P.3d 791 (2009); Schroeder v. Excelsior

Mgmt. Grp., LLC, 177 Wn.2d 94, 108, 297 P.3d 677 (2013). Indeed, this element


       6
        We agree that the third and fourth elements—identity of parties and quality of
parties—exist.

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appears to be largely, if not entirely, duplicative of the same cause of action element.

Trautman, 60 Wash. L. Rev. at 812-813.

       Our courts have articulated four factors to be considered in assessing whether

causes of action are identical:

       (1) [W]hether rights or interests established in the prior judgment would be
       destroyed or impaired by prosecution of the second action; (2) whether
       substantially the same evidence is presented in the two actions; (3) whether
       the two suits involve infringement of the same right; and (4) whether the
       two suits arise out of the same transactional nucleus of facts.

Rains v. State, 100 Wn.2d 660, 664, 674 P.2d 165 (1983) (quoting Constantini v. Trans

World Airlines, 681 F.2d 1199, 1201-1202 (9th Cir. 1982)).

       With these considerations in mind, it is time to turn to our previous opinion in the

Adams County case. There we discussed the facts of the case and the argument involving

Mr. Noble before turning to the claim against Dr. Dunlap. Sweeney, No. 32486-9-III, slip

op. at 1-10. We first ruled that the case against Dr. Dunlap was untimely filed because of

inexcusable neglect. Id. at 10-13. We then turned to Ms. Sweeney’s alternative

argument that “the treatment was ongoing and continuous, culminating with the rotator

cuff repair.” Id. at 13.7 We rejected that argument, finding that the pleading only

referenced the 2010


       7
          If the argument had been successful, the effect would have been to require Dr.
Dunlap to defend against the 2010 claim as well as the 2012 claim due to the fact that the
last act of negligence would have occurred within the statute of limitations period and
allowed the amendment to relate back to the original filing. See CR 15(c).

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treatment. Id. at 14. We expressly noticed that there was “no allegation Dr. Dunlap

provided substandard care in 2012.” Id. (emphasis added). We then footnoted that

sentence to explain that even “if the issue had been presented,” the expert affidavits did

not sufficiently address the 2012 treatment. Id. at n.2 (as amended Oct. 25, 2016).

       The first opinion expressly determined that there was no allegation of ongoing

treatment continuing through the 2012 surgery. The sentences discussed above all arose

in the specific context of answering the continuing treatment argument and why that

exception did not save Ms. Sweeney’s first case—it was not pleaded and there was no

evidentiary support for it. While Dr. Dunlap understandably attempts to run with that last

observation, his argument does not translate well because it is lifted out of its context.

There was no evidentiary support for a continuing course of treatment extending into

2012. We were in no position to opine that there was or was not evidence of negligence

in 2012 because that issue was not part of the case.

       It is for that reason that Dr. Dunlap’s res judicata argument fails the first two

factors of the res judicata test. We need not create an analysis for evaluating what

constitutes “same subject matter” for res judicata purposes because the previous opinion

determined the 2012 surgery was not part of the untimely law suit arising from the 2010

injuries. Under any test we might develop, we could not include any subject matter

already excluded by the first appeal.



                                              8
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       Likewise, we have no hesitance in concluding that the two cases do not involve

the same cause of action. The Adams County litigation was limited to the 2010

treatment. As a consequence of that first appeal, this action only involves the 2012

surgery. Our rejection, in that appeal, of the continuing treatment argument necessarily

means that the two actions are not the same. Consideration of the four Rains factors

likewise compels the conclusion that these two actions are not the same—(1) the

dismissal of the 2010 claim against Dr. Dunlap does not resolve the 2012 claim, (2)

different evidence will support the 2012 claim than supported the 2010 action, (3) while

the same shoulder is at issue, the two different injuries occurred separately, and (4) the

same nucleus of facts are not at issue in each case. Rains, 100 Wn.2d at 664. The two

actions are not the same.

       The court erred in granting summary judgment on res judicata grounds. In light of

the fact that Ms. Sweeney’s Spokane County pleading references the 2010 events that

have been the subject of two appeals, it may be wise to amend the pleading to delete that

reference or take other action to confirm this lawsuit now involves only the 2012 rotator

cuff surgery.




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       We reverse the order of dismissal and remand for further action consistent with

this opinion.

       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:




       Fearing,�




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