       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KEVIN SCOTT CHRISTIAN,           )
                                 )           No. 78320-3-1
                   Appellant,    )
             v.                  )           DIVISION ONE
                                 )
PROVIDENCE REGIONAL MEDICAL )
CENTER EVERETT,                  )
                                 )
                    Defendant,   )
                                 )
             and                 )
                                 )
WESTERN WASHINGTON MEDICAL )                UNPUBLISHED OPINION
GROUP, INC., P.S.; THOMAS        )
FREDERICK STARK, M.D., and his   )          FILED: July 1, 2019
wife, JANE DOE STARK, and the    )
marital community thereof,       )
                                 )
                    Respondents. )
                                 )

      SMITH, J. — Kevin Christian appeals the trial court's summary dismissal of

his medical negligence claims against Western Washington Medical Group Inc.,

Dr. Thomas Stark, and Dr. Stark's wife and marital community (collectively the

Stark Parties)for injuries resulting from operations performed in May 2014.

Christian filed this lawsuit more than three years after the procedures but argues

that his claims are not time barred because they were filed within one year after

he discovered the basis for his claims. Because there is undisputed evidence

that Christian reported his postoperative symptoms to Dr. Stark as early as

summer 2014, Christian has not raised a genuine issue of material fact as to

whether his claims are time barred. We affirm.
No. 78320-3-1/2

                                        FACTS

       On May 6, 2014, Dr. Stark performed a left hip replacement surgery on

Christian. Postoperative x-rays taken the day of the surgery showed a fracture in

Christian's left femur. Accordingly, Dr. Stark performed an additional surgery the

same day to repair Christian's femur. Christian was discharged on May 9, 2014.

       A week later, Christian visited the emergency room complaining of left hip

and thigh erythema and swelling. According to a chart note from the emergency

room visit, Christian went back to the operating room for treatment, which

revealed a postoperative infection. Christian was placed on broad-spectrum

antibiotics. By November 2014, he had been dismissed by his infectious disease

doctor because his labs were normal.

       Meanwhile, Christian had three follow-up visits with Dr. Stark after the May

2014 surgeries. Dr. Stark's chart notes indicate that at the first follow-up in July

2014, Christian reported that his pain level was improving, he was able to drive

and to walk short distances without pain, and he was back to work. Dr. Stark

noted, however, that Christian "feels like the left leg is a little bit shorter and he

does have some weakness."

       At Christian's next follow-up in August 2014, Dr. Stark again noted that

Christian "feels like his right leg is longer than his left leg" but that "this imbalance

has been improving since surgery." Dr. Stark's notes also indicate that "[w]hen

standing the left iliac crest appears to be 45 mm shorter than the right iliac crest."

Dr. Stark offered Christian a heel lift to wear on his left side, but Christian

declined.


                                           2
No. 78320-3-1/3

       Christian saw Dr. Stark for a six-month postoperative visit on November 5,

2014. Dr. Stark's notes from that visit indicate that Christian was experiencing

"minimal pain" and noticing "better motion each day." Dr. Stark assessed that

Christian was "doing well" and should return for follow-up visits as needed. It

does not appear from the record that Christian saw Dr. Stark again after this

November 2014 follow-up.

       Almost two years later, on August 22, 2016, Christian was examined by

Dr. Kipley Siggard. In his chart notes, Dr. Siggard described Christian's relevant

health history as follows:

      This patient is a 60-year-old male with an unfortunate complicated
      history involving his left hip. The patient had a left total hip
      arthroplasty in May of 2014 which was complicated by a femur
      fracture and required secondary surgery for fixation and a repeat
      surgery later on 05/17/2014 for a MRSA infection. Fortunately the
      patient resolved his infection and healed his femur fracture around
      his total hip arthroplasty.

      Unfortunately the patient has had some right lower extremity
      symptoms that have been present since that time. These include
      pain in his right superior buttock and pains in his right Achilles
      tendon area. He has not had injury or trauma to these areas and
      has not had known arthritis of any joints on the right side. The
      patient claims rightfully that his right side had to "bear the weight"
      during his recovery. The patient is noted to have about 2 cm of
      shortening of the left lower extremity compared to the right as
      viewing his iliac crest standing. He has not over time made any
      correction of shoes or worn inserts. Walking seems to make both
      pains worse and both pains resolve with sitting or resting fairly
      rapidly. Patient denies any back pain.

       On August 15, 2017,just less than a year after seeing Dr. Siggard,

Christian sued the Stark Parties, alleging that Dr. Stark failed to exercise




                                         3
No. 78320-3-1/4

reasonable care in conducting the two surgeries in May 2014.1 He alleged that

Dr. Stark's negligence caused:(1) Christian's postsurgery infection;(2) the two-

centimeter discrepancy reported by Dr. Siggard in August 2016; and (3)

Christian's "present, continuing, and chronic pain in both hip areas." The Stark

Parties moved for summary judgment, arguing that(1) Christian's claims were

time barred and (2) Christian failed to establish a prima facie case of medical

negligence with competent expert testimony.

       In response to the Stark Parties' motion, Christian submitted a declaration

from Dr. Michael Roback, who opined that Dr. Stark's treatment of Christian did

not conform to the applicable standard of care because Dr. Stark failed to

perform the hip replacement surgery in a "careful and protected manner"; secure

proper intraoperative x-rays to identify the femoral fracture; repair the femoral

fracture during the initial surgery, "resulting in a leg length discrepancy"; "properly

evaluate the initial signs of infection"; and "secure an infectious disease

consultation at the time of the initial signs of infection."

       The trial court granted the Stark Parties' motion and dismissed Christian's

claims. In its order, the trial court stated that it had dismissed Christian's claims

as time barred and, in the alternative, because Christian "lacked competent

medical testimony to establish a claim for his alleged leg length discrepancy."

Christian appeals.




        1 Christian's lawsuit also named Providence Regional Medical Center
Everett, where Dr. Stark performed the May 2014 surgeries. But Providence was
later dismissed by stipulation and is not implicated in this appeal.
                                           4
No. 78320-3-1/5


                                     ANALYSIS

       Christian argues that because genuine issues of material fact exist as to

when he discovered or reasonably should have discovered the elements of his

claims against the Stark Parties, the trial court erred by dismissing those claims

as time barred. We disagree.

       We review summary judgment orders de novo. Keck v. Collins, 184

Wn.2d 358, 370, 357 P.3d 1080 (2015). "[S]ummary judgment is appropriate

where there is 'no genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." Elcon Constr., Inc. v. E. Wash.

Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012)(second alteration in original)

(quoting CR 56(c)). Although the evidence is viewed in the light most favorable

to the nonmoving party, if that party is the plaintiff and he fails to make a factual

showing sufficient to establish an element essential to his case, summary

judgment is warranted. Youno v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770

P.2d 182(1989). Once the moving party shows that there are no genuine issues

of material fact, the nonmoving party must bring forth specific facts to rebut the

moving party's contentions. Elcon Constr., Inc., 174 Wn.2d at 169. "The

nonmoving party may not rely on speculation, argumentative assertions, 'or in

having its affidavits considered at face value; for after the moving party submits

adequate affidavits, the nonmoving party must set forth specific facts that

sufficiently rebut the moving party's contentions and disclose that a genuine

issue as to a material fact exists." Becker v. Wash. State Univ., 165 Wn. App.

235, 245-46, 266 P.3d 893(2011)(quoting Seven Gables Corp. v. MGM/UA



                                          5
 No. 78320-3-1/6

 Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1(1986)).

       Here, it is undisputed that Christian's claims are governed by the limitations

 period set forth in RCW 4.16.350(3). That statute bars his claims unless they

were commenced within the later of "three years of the act or omission alleged to

 have caused the injury or condition" and one year of the time Christian or his

representative "discovered or reasonably should have discovered that the injury or

condition was caused by said act or omission." RCW 4.16.350(3). It is also

undisputed that Christian did not sue within three years of Dr. Stark's alleged acts

or omissions. Therefore, the sole issue before us is whether Christian raised a

genuine issue of material fact as to whether he sued within one year of the time

that he or his representative "discovered or reasonably should have discovered

that the injury or condition was caused by [Dr. Stark's] act or omission."

RCW 4.16.350(3).

       Under this one-year discovery rule, "a plaintiff's claim does not accrue until

[]he discovers or reasonably should have discovered all the essential elements

of a possible cause of action: duty, breach, causation, and damages." Olson v.

Siverlino, 52 Wn. App. 221, 227, 758 P.2d 991 (1988). The determination of

when a plaintiff discovered, or through the exercise of due diligence should have

discovered, the basis for a cause of action is generally a question of fact.

Winbun v. Moore, 143 Wn.2d 206, 213, 18 P.3d 576 (2001). Nevertheless, "a

question of fact may be determined as a matter of law where reasonable minds

can reach only one conclusion." Cho v. City of Seattle, 185 Wn. App. 10, 15, 341

P.3d 309 (2014). "The key consideration under the discovery rule is the factual,



                                         6
No. 78320-3-1/7

as opposed to the legal, basis of the cause of action." Lo v. Honda Motor Co.,

73 Wn. App. 448, 455, 869 P.2d 1114(1994)(quoting Adcox v. Children's

Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 35, 864 P.2d 921 (1993)).

       Here, as further discussed below, the undisputed record demonstrates

that Christian discovered the factual basis of his claims against the Stark Parties

before August 15, 2016 (i.e., one year before he filed this lawsuit). Therefore,

Christian cannot avail himself of the one-year discovery rule, and summary

judgment was proper.

       First, with regard to the postsurgery infection, all of the facts underlying a

claim based on the infection were known or reasonably should have been

discovered by Christian no later than mid-May 2014. That is when Christian

reported back to the emergency room shortly after his initial surgeries and

physicians confirmed that he had an infection in the surgery incision area.

Therefore, the trial court properly dismissed Christian's claims to the extent they

were based on the postsurgery infection.

       Next, with regard to the leg length discrepancy, Zaleck v. Everett Clinic, 60

Wn. App. 107, 802 P.2d 826 (1991), is instructive. In that case, the plaintiff,

Steven Zaleck, was treated by Dr. Irving Varley of the Everett Clinic for a wrist

injury in November 1981. Zaleck, 60 Wn. App. at 109. When Dr. Varley gave

Zaleck an injection, Zaleck felt immediate pain in all five of his fingertips. Zaleck,

60 Wn. App. at 109. "The pain soon subsided, but Zaleck continued to feel

numbness and tingling in his thumb." Zaleck, 60 Wn. App. at 109. When Zaleck

asked Dr. Varley why the injection was so painful, "Dr. Varley explained that the


                                          7
No. 78320-3-1/8

needle might have hit a nerve." Zaleck, 60 Wn. App. at 109. "According to

Zaleck, Dr. Varley also said that the burning and numbness from the shot

'wouldn't be a problem and would go away." Zaleck, 60 Wn. App. at 109.

       But the numbness and tingling in Zaleck's thumb did not go away, and

Zaleck underwent multiple unsuccessful operations to correct his symptoms.

Zaleck, 60 Wn. App. at 109. Zaleck consulted a lawyer in April 1985 and sued

Dr. Varley and the Everett Clinic in March 1986. Zaleck, 60 Wn. App. at 110.

After the trial court dismissed Zaleck's suit as untimely, Zaleck appealed, arguing

that genuine issues of material fact remained as to when Zaleck should have

discovered each of the elements of his claims, other than the duty element.

Zaleck, 60 Wn. App. at 110-11.

       We disagreed with Zaleck. Zaleck, 60 Wn. App. at 114. In doing so, we

first addressed the causation element and observed that Zaleck's symptoms

began when Dr. Varley administered the injection, and on that same day, Dr.

Varley told Zaleck that he may have hit a nerve. Zaleck, 60 Wn. App. at 111.

We explained,"From this a reasonable person could only have concluded that

the injection caused at least some of Zaleck's symptoms." Zaleck, 60 Wn. App.

at 111. We next addressed damages and observed that Zaleck had suffered

numbness since the 1981 injection. Zaleck, 60 Wn. App. at 112. Therefore,

"[a]lthough he may not have known at that time that he would ultimately suffer a

permanent partial disability, he knew.. . that some damage had occurred."

Zaleck, 60 Wn. App. at 112(second alteration in original). We held that "[t]his is

sufficient to establish that Zaleck discovered, or should have discovered, his



                                        8
No. 78320-3-1/9

damage more than 1 year before he filed suit." Zaleck, 60 Wn. App. at 112.

Finally, as to breach, we explained that "[t]o discover a 'breach' in a medical

malpractice action, the plaintiff need not have known with certainty that the health

care provider was negligent. Instead, the plaintiff need only have had, or should

have had, information that the provider was possibly negligent." Zaleck, 60 Wn.

App. at 112.

       Here, the undisputed record reveals that like the plaintiff in Zaleck,

Christian discovered or should have discovered, more than one year before he

sued the Stark Parties, the basis of his claims related to his leg length

discrepancy. First, as to damages, Dr. Stark's chart notes indicate that Christian

felt, as early as summer 2014, that his left leg was shorter than his right. And

according to Dr. Siggard's chart note, Christian reported that his right side had to

"bear the weight" during his recovery from hip replacement surgery and that he

"has had some right lower extremity symptoms." These included "pain in his right

superior buttock and pains in his right Achilles tendon area" that have been

present since the time of his May 2014 surgeries. In other words, even if

Christian did not know that his left leg was shorter than his right leg until he saw

Dr. Siggard in August 2016, he, like the plaintiff in Zaleck, knew that some

damage had occurred well before he saw Dr. Siggard. Next, as to breach,

Christian's claims are premised on the theory that Dr. Stark broke Christian's

femur and then, because Dr. Stark failed to diagnose and repair the break during




                                         9
No. 78320-3-1/10

the initial surgery, a leg length discrepancy resulted.2 But Christian does not

dispute that as of May 2014, he knew that Dr. Stark had broken his femur and

that a second surgery was required to repair the break. In other words, as of

May 2014, Christian "had . . . information that [Dr. Stark] was possibly negligent."

Zaleck, 60 Wn. App. at 112. And as to causation, Christian reported to Dr.

Siggard that the onset of his symptoms was the May 2014 procedures. As we

reasoned in Zaleck, a reasonable person could only have concluded that the

procedures performed by Dr. Stark in May 2014 caused Christian's symptoms.

Finally, as in Zaleck, the duty element is not at issue here. Therefore, on this

record, the trial court did not err by summarily dismissing Christian's claims.

       Christian attempts to distinguish Zaleck by arguing that unlike the plaintiff

in that case, Christian "did not have to go through multiple surgeries which would

have given him notice of any damage, nor were there any complications." But

Christian's argument that he did not have notice of any damage or complications

is unconvincing where the undisputed record establishes that Christian

experienced a broken femur, complained to Dr. Stark on two occasions that he

felt like his right leg was longer than his left, and claimed to Dr. Siggard that "his

right side had to 'bear the weight' during his recovery."

       Christian also attempts to distinguish Zaleck by asserting that Dr. Stark

represented to him that he "would be able to recover normally" and assured him



        2 This is the only theory supported by Dr. Roback's affidavit. Cf. Reyes v.
Yakima Health Dist., 191 Wn.2d 79, 419 P.3d 819(2018)(in medical malpractice
cases, expert testimony is required to establish what a reasonable doctor would
or would not have done, that the defendant failed to act in that manner, and that
this failure caused the plaintiff's injuries).
                                          10
No. 78320-3-1/11

"that there was no significant injury." But Christian provided no affidavit to the

trial court to support any such representation or assurance, and Dr. Stark's chart

notes, even when viewed in the light most favorable to Christian, reveal no such

statement by Dr. Stark. See Lemond v. Dep't of Licensing, 143 Wn. App. 797,

807, 180 P.3d 829 (2008)("This court will not consider allegations of fact without

support in the record."). Christian's attempts to distinguish Zaleck fail.

       Christian next contends that he did not begin to experience pain in his

right leg until August 2016 and that even if he had experienced symptoms since

May 2014, the symptoms "were considered minimal and part of his normal

recovery until they became noticeable enough for him to see Dr. Siggard."

Again, because Christian cites to no support in the record for these factual

allegations, they do not merit consideration.

       Christian also argues that he had "no suspicion of negligence" and "no

confirmation of any injury" until he was examined by Dr. Siggard. But

"[Menerally, if the plaintiff is aware of some injury, the statute of limitation begins

to run even if he does not know the full extent of his injuries." Steele v. Orpanon,

Inc., 43 Wn. App. 230, 234, 716 P.2d 920 (1986). Here, Christian, who

complained to Dr. Stark as early as summer 2014 that he felt his left leg was

shorter than his right, was undisputedly aware of some injury at that time.

Therefore, the fact that he did not obtain "confirmation" until he saw Dr. Siggard

is unpersuasive.

       Christian next points to an entry in Dr. Stark's November 2014 chart note

stating that Christian's leg lengths were "equal" to suggest that a genuine issue



                                          11
No. 78320-3-1/12

of material fact exists. But even if Christian's leg lengths became equal in

November 2014 and became unequal again by the time he saw Dr. Siggard in

August 2016, it remains undisputed that Christian had a leg length discrepancy in

August 2014 that was significant enough for Dr. Stark to offer him a heel lift. In

other words, Dr. Stark's November 2014 chart note does not change the fact that

Christian knew of the basis for his claims as early as August 2014, and it does

not require.reversal. See Steele, 43 Wn. App. at 235 (rejecting patient's claim

that she did not discover her claim for ergot overprescription until she had a heart

attack in 1981 because, in 1975, she had been hospitalized for ergot poisoning).

       Christian next argues that the Stark Parties failed to meet their initial

burden under CR 56(c) to demonstrate the absence of any genuine issue of

material fact. Specifically, he contends that "there was nothing in the [medical]

records to indicate anything other than that Mr. Christian emerged from his

operation without more than normal post-operative pain and was fully on the road

to recovery." But the Stark Parties did meet their initial burden by pointing out

below that by August 2014, Christian was aware of a leg length discrepancy and

was even offered a heel lift to address it. And as discussed, the medical records

submitted by the Stark Parties on summary judgment also establish that

Christian claimed that his right side had to "'bear the weight" during his recovery

and that he experienced right-side pain since the time of his May 2014 surgeries.

In short, contrary to Christian's assertions, the medical records indicate that

Christian was experiencing something other than "normal post-operative pain"

and that he was not fully on the road to recovery. Thus, the burden shifted to


                                         12
  No. 78320-3-1/13

  Christian to set forth specific facts to disclose that a genuine issue of material

  fact exists. Becker, 165 Wn. App. at 245-46. But Christian, who did not even

  make a declaration in response to the Stark Parties' motion, did not do so. His

  argument fails.

         Christian next relies on Winbun to argue that the question of when he

  discovered or should have discovered the basis of his claims should have been

  reserved for the jury. But in Winbun, the patient requested her medical records

  but was not given a complete set. Winbun, 143 Wn.2d at 216. In concluding that

  genuine issues of material fact precluded summary judgment, our Supreme

  Court observed, "It is arguable that the missing documents obscured [the

  patient]'s ability to determine the nature and extent of[the physician]'s care."

  Winbun, 143 Wn.2d at 217. Here, there is no evidence that missing medical

  records—or any other missing information—hampered Christian's ability to

  determine Dr. Stark's role in the May 2014 treatment. Therefore, Winbun is not

. persuasive.

        Christian next argues that the fact that he experienced a traumatic medical

  event and knowledge of its immediate cause do not constitute notice that his

  injury was caused by a medical error or omission. He relies on Lo v. Honda

  Motor Company to support his argument, but his reliance is misplaced. In Lo,

  Elizabeth Lo's son, Brian, was born prematurely and with severe afflictions

  approximately one month after Lo was violently thrashed about in her Honda

  when it suddenly accelerated uncontrollably. Lo, 73 Wn. App. at 450-51. Lo

  repeatedly asked Brian's pediatricians about Brian's maladies. Lo, 73 Wn. App.



                                           13
 No. 78320-3-1/14

at 451. After they repeatedly told her that sometimes "'these things just

 happen," Lo became convinced that the Honda incident was the cause of Brian's

 maladies and she sued Honda. Lo, 73 Wn. App. at 451, 462. Eventually,

however, when Brian was 3-1/2 years old, a doctor opined that medical

negligence more probably than not caused or contributed to his maladies. Lo, 73

Wn. App. at 453. Within five months of receiving that opinion, Lo added

Northwest Hospital Inc. where she delivered Brian, as a defendant in her lawsuit

against Honda. Lo, 73 Wn. App. at 453-54.

       In affirming the trial court's refusal to dismiss Lo's claims against the

hospital as time barred, we recognized that the Honda incident presented

another facially reasonable explanation for Brian's maladies and that Lo was

repeatedly told that sometimes these things just happen. Lo, 73 Wn. App. at

460. But here, unlike in Lo, Christian has presented neither evidence of another

incident that would have provided a facially reasonable explanation for his

symptoms nor evidence that he was repeatedly assured that sometimes these

things just happen. For these reasons, Lo is distinguishable and does not

control.

       As a final matter,3 Christian argues that there is a typographical error in

Dr. Stark's August 13, 2014, note stating that "[w]hen standing the left iliac crest

appears to be 45 mm shorter than the right iliac crest." Specifically, Christian

alleges that Dr. Stark told him that the discrepancy was only "about 1/2



      3 Christian also relies on Rispoli v. United States, 576 F. Supp. 1398
(E.D.N.Y. 1983), aff'd, 779 F.2d 35(2d Cir. 1985), to argue that summary
judgment was improper. But Rispoli is not binding, and we decline to consider it.
                                         14
No. 78320-3-1/15

centimeter" and asserts that this inconsistency raises a genuine issue of material

fact. But there is no support in the record for Christian's allegation that Dr. Stark

told Christian the discrepancy was only about 1/2 centimeter in size. Therefore,

Christian's assertion that "some kind of mistake was made in reporting the

discrepancy on August 13, 2014," amounts to speculation, which is not enough to

defeat summary judgment. Becker, 165 Wn. App. at 245-46. Furthermore,

because Christian reported experiencing pain since May 2014 but failed to sue

until August 2017, neither the fact of the discrepancy nor its actual size is

material.

       In short, the trial court did not err by dismissing Christian's claims as time

barred. And because dismissal on that basis was proper, we do not reach the

trial court's alternate basis for dismissal, i.e., that Christian failed to establish a

prima facie case of medical negligence supported by competent medical

testimony.

       We affirm.




WE CONCUR:•



.Alk‘tA42A., .




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