                                                                     FU

                                                            COURT CF APPEALS HIV I
                                                             STATE OF WASHINGTON

                                                            2013 APR-I    AH 10= 1*3


      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



YOUNG SOO KIM,
                                                 No. 67949-0-I
                     Appellant,
                                                 DIVISION ONE
       v.



CHOONG-HYUN LEE,                                 PUBLISHED OPINION
CHOONG-HYUN LEE, DMD, PLLC
d/b/a LEE FAMILY DENTAL, and
JOHN DOES 1-10,

                     Respondents.                FILED: April 1,2013

      Spearman, A.C.J. — Young Soo Kim filed a medical malpractice lawsuit

against his former dentist, Choong-Hyun Lee. Kim alleged he suffered injuries

due to Lee's negligence in performing certain procedures on the upper left area

of his mouth. Lee moved for summary judgment based on the statute of

limitations. The trial court granted the motion. We affirm and hold that Kim's

lawsuit was barred by the statute of limitations because he did not offer any

admissible evidence to show that a negligent act or omission took place during

the three-year period before he brought suit.

                                      FACTS


       Young Soo Kim first visited Dr. Choong-Hyun Lee's dental office on

December 5, 2005. Lee performed a new patient exam; x-rays were taken; and

Kim's teeth were cleaned by a dental hygienist. Lee advised Kim that, among

other things, a bridge at teeth Nos. 12-15 was loose, tooth No. 13 needed to be
No. 67949-0-1/2

extracted, and a new bridge should be put in for teeth Nos. 12-15.1 They also
discussed placing a bridge at teeth Nos. 3-5. At the time, Kim elected not to

proceed with the recommended procedures. But on August 28, 2006, when Lee

saw Kim for an emergency appointment, Lee extracted teeth Nos. 13 and 30.

        After the extractions, Kim had difficulty eating. Lee advised Kim in

September 2006 that teeth Nos. 13, 14, and 30 could be replaced with

implants. Kim decided to go forward with restoration work and Lee began

by taking impressions for implants and extracting tooth No. 15. In October

2006, Lee surgically placed implants at teeth Nos. 13 and 30. In January

2007, Lee placed healing post and cap abutments on the implants. On

February 26, Lee seated implant crowns at teeth Nos. 13 and 30. On

March 15, he seated a permanent crown at tooth No. 12. On March 29,

2007, Kim appeared for his last visit to Lee's office. His teeth were

cleaned and x-rays were taken. Kim asserts that, at this visit, Lee followed

up on the previous restoration work done on teeth Nos. 12-15, examining

him for swelling and tenderness and discussing periodontal disease,

flossing, and use of saline rinses.

        On June 18, 2008, Kim sought medical treatment from Dr. Kenny

Lee, a periodontist.2 Kenny Lee diagnosed Kim with an abscess,
specifically an infection near the root of the upper left tooth that had been

        1Tooth No. 13 is located in the upper left of the mouth and is flanked by tooth No. 12 and
tooth No. 14. Tooth No. 15 is to the rear of tooth No. 14. Tooth No. 30 is toward the rear on the
lower right side of the jaw.
        2 To avoid confusion between Choong-Hyun Lee and Kenny Lee, the latter is referred to
by his full name.
                                                2
No. 67949-0-1/3

treated by Lee. On July 16, Kenny Lee diagnosed Kim with a sinus

problem and referred Kim to a specialist for further treatment. On October

10, Kenny Lee noted that Kim's crown came off, the location and size of

the fixture was wrong, and the abutment selection was wrong, among

other things. Kenny Lee contacted Lee to inquire about the size of the

implants placed at teeth Nos. 13 and 30. Kenny Lee told Lee the implant,

abutment, and crown at tooth No. 13 needed to be replaced. Lee agreed

to refund $1,261 to Kim for the implant and crown for tooth No. 13.

       On March 18, 2010, Kim mailed Lee a notice of intent to sue and

request for mediation, pursuant to RCW 7.70.100.3 The notice was
received and signed for by Lee's agent on March 19, 2010. Lee did not

agree to participate in mediation.

       On March 14, 2011, Kim filed a medical malpractice lawsuit against

Lee in superior court. Kim's complaint alleged that Lee was negligent in

"determining and installing implants, abutments, and crowns" in the upper

left part of his mouth in 2006 to 2007, requiring corrective surgery by a

specialist. The complaint alleged:

       Specifically, Dr. Kenny Lee determined that the location and size of
       the upper left implantfixture was incorrect, that the abutment
       selection was incorrect, the crown size was incorrect, and that
       Plaintiff Kim's sinus membrane had been adversely affected by
       Defendants' procedures and treatment.




        3The notice requirement of former RCW 7.70.100(1) (2006) was held unconstitutional
several months after Kim sent a notice of intent in this case. Waples v. Yi. 169 Wn.2d 152, 161,
234 P.3d 187 (2010). The parties' dispute does not involve the notice requirement.
                                                3
No. 67949-0-1/4

Clerk's Papers (CP) at 175. Kim alleged that, following the February 2007

procedure to place crowns in the upper left and lower right areas of his mouth,

his upper left crown repeatedly fell off; he was unable to chew or eat due to pain;

and he began to suffer headaches, tingling in his face, hearing loss, and watery

eyes.

        Lee moved for summary judgment based on the statute of limitations. The

trial court granted Lee's motion. Kim moved for reconsideration, which was

denied. Kim appeals.

                                  DISCUSSION

        We review an order of summary judgment de novo. Jones v. Allstate Ins.

Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). A motion for summary judgment

based on a statute of limitations should be granted only when the pleadings,

depositions, interrogatories, admissions, and affidavits in the record demonstrate

there is no genuine issue of material fact as to when the statutory period
commenced. CR 56(c); Olson v. Siverlinq, 52 Wn. App. 221, 224, 758 P.2d 991

(1988). The statute of limitations is an affirmative defense on which the

defendant bears the burden of proof. Haslund v. City of Seattle, 86 Wn.2d 607,

620-21, 547 P.2d 1221 (1976).
No. 67949-0-1/5

        RCW 4.16.350 sets forth a statute of limitations for medical malpractice

actions.4 As it relates to this case, the statute provides that such an action "shall

be commenced within three years of the act or omission alleged to have caused

the injury or condition          "5 RCW 4.16.350(3). RCW 4.16.350 was enacted in
1971, after the Washington Supreme Court's decision in Samuelson v. Freeman,

75 Wn.2d 894, 454 P.2d 406 (1969), which recognized a cause of action for

"continuing negligent treatment."6 In a case decided after the enactment of the
statute, the court explained:

        [RCW 4.16.350] substantially modified the continuing course of
        treatment rule formulated in Samuelson [....] Under Samuelson, the
        cause of action would not accrue until, when there was a
        continuous and substantially uninterrupted course of treatment for a
        particular illness, the treatment for the particular illness or condition
        had been terminated. The 1971 statute restricts the
        commencement of the action to within 'three years from the date of
        the alleged wrongful act.' [....] The concept of the termination of a
        'continuing course of treatment' has been succeeded by the
        designation of a 'date of the alleged wrongful act.'




        4A medical malpractice plaintiff must prove:
           (1) The health care provider failed to exercise that degree ofcare, 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 similarcircumstances;
            (2) Such failure was a proximate cause ofthe injury complained of.
RCW 7.70.040(1 )(2).
        5Alternatively, the action may be filed within "one yearof the time the patient or hisor her
representative discovered or reasonably should have discovered that the injury or condition was
caused by said act or omission," RCW 4.16.350(3), but Kim has never argued that his lawsuit
was timely filed under this alternative.
        6 In Samuelson. the court held the statute of limitations did not run until April 1963, even
though the plaintiffs surgery to reduce and treat a fracture of the femur took place on or around
September 18, 1960, where the defendant-doctor continued treating and observing that particular
condition until April 1963. Samuelson, 75 Wn.2d at 900.
No. 67949-0-1/6

Bixler v.Bowman, 94 Wn.2d 146, 150, 614 P.2d 1290 (1980).7
       Subsequently, in Cauqhell v. Group Health Co-op. of Puaet Sound, 124

Wn.2d 217, 228, 876 P.2d 898 (1994), the court determined that while RCW

4.16.350 did not extinguish the claim for continuing negligent treatment

recognized in Samuelson, it modified "when the clock starts ticking on these

claims." Id. at 228. The court wrote:

       We held in Bixler that the event which triggers the statute of
       limitations had changed from the termination of a course of
       treatment, whether or not negligence occurred on that date, to the
       last negligent act committed by the defendant. Underthe 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.

]d\ at 229. A malpractice claimant must, in response to a motion for summary
judgment based on the statute of limitations, present some evidence that a
negligent act or omission took place within the limitations period. \± at 232.
       Underthese cases, the inquiry here concerns the date of the last negligent

act or omission alleged by Kim. Kim contends the last negligent act took place on
March 29, 2007, during what he claims was a follow-up appointment for the
restoration work. Lee does not dispute that he saw Kim on that date, but

contends there is no evidence he committed a negligent act or omission during

the visit. He also contends, for purposes of summary judgment, that the last

possible act of negligence took place no later than March 15, 2007, the last visit

        7In Bixler, the court held that the three-year statute of limitations had run on the plaintiffs
claim where the defendant allegedly failed to diagnose breast cancer in January and April 1975,
another doctor diagnosed her cancer on August 4, 1975, and the plaintiff sued in June 1978.
Bixler, 94 Wn.2d at 147-50. The court determined that the date ofthe "'alleged wrongful act'" was
April 29, 1975, the last time the plaintiff consulted with the defendant. Id at 150.
No. 67949-0-1/7

at which he performed restoration work. Ifthe statute of limitations began to run

on March 29, 2007, Kim's lawsuit was timely filed; if it began to run on March 15,

2007, his lawsuit was not timely.8 Therefore, the timeliness of Kim's lawsuit turns
on whether he presented some evidence of negligent treatment on March 29,

2007.


        In opposition to Lee's summary judgment motion, Kim submitted his own

declaration and two documents from Kenny Lee. His own declaration contains no

specific assertion of negligence at the March 29 appointment.9 Of the two
documents from Kenny Lee, the first was an unsworn, unsigned exhibit attached

to the declaration of Kim's attorney. In this document, Kenny Lee provided

responses to the attorney's questions. In response to a request for his "opinion of

the causal relationship between the injuries suffered and the prior dental

treatment in question," Kenny Lee stated, "It was wrong diagnosis, treatment^]

planning and execution." CP at 96. The second document, attached to Kim's

declaration, was a signed but unsworn letter in which Kenny Lee described Lee's

work as deficient because he used an improper abutment selection and an

inadequate number of implants. Kim argues that these assertions, when viewed

        8
         1Because Kim sent Lee a mediation request on March 18, 2010, the statute of limitations
was tolled for one year under RCW 7.70.110 ifthe statute of limitations commenced, as Kim
contends, on March 29, 2007. If, on the other hand, the statute of limitations commenced no later
than March 15, 2007, the request for mediation was untimely and had no tolling effect. Cortez-
Kloehn v. Morrison. 162 Wn. App. 166, 171, 252 P.3d 909, rev. denied. 173 Wn.2d 1002, 268
P.3d941 (2011).
        9The main purpose of Kim's declaration was to support his contention that the March 29,
2007 visit was a follow-up visit for the restoration work and rebut Lee's claim that it was a visit for
a routine prophylaxis. Because we viewthe facts in a light most favorable to Kim for purposes of
summary judgment, Babcock v. State. 116 Wn.2d 596, 598-99, 809 P.2d 143 (1991), we accept
Kim's assertions that the March 29 visit was a follow-up appointment at which Lee examined and
took x-rays of all areas of his mouth.
No. 67949-0-1/8

in their most favorable light, are sufficient to establish that a reasonably prudent

dentist would have noticed the deficient work during the March 29 visit and that

Lee negligently failed to do so.

       Even assuming, without deciding, that Kenny Lee's statements allege with

sufficient clarity and specificity a negligent act or omission on the March 29 visit,

the argument cannot be sustained because the evidence upon which it relies was

not in the proper form before the trial court. CR 56(e) requires that evidence

offered in support of or in opposition to a motion for summary judgment be in the

form ofsworn affidavits or declarations made under penalty of perjury.10
Wilkerson v. Weqner, 58 Wn. App. 404, 408, 793 P.2d 983 (1990). Courts do not

always demand strict compliance with the express requirements of CR 56(e), due
to the potentially drastic consequences of a summary judgment motion,
particularly with respect to the nonmoving party. See Meadows v. Grant's Auto
Brokers. Inc., 71 Wn.2d 874, 879, 431 P.2d 216 (1967). But we are aware of no

case, nor has any been cited to us, that excuses in whole, the requirement that
statements purporting to establish a necessary element of a claim ordefense, be
in the form of sworn affidavits or declarations made under penalty of perjury.

Because the statements from Kenny Lee are not in such form, Kim cannot rely




        10 See ajso RCW 9A.72.085 (permitting unsworn written statement to be considered if
statement (1) contains recitement by person that statement is true under penalty of perjury, (2) is
subscribed by person, (3) states date and place of execution, and (4) states it is so certified under
the laws of state of Washington).
                                                  8
No. 67949-0-1/9

upon them to create a disputed issue of material fact.11 The trial court properly
granted Lee's summary judgment motion.

                                       Attorney's Fees

       Kim requests attorney's fees on appeal under RAP 18.1 and RCW

7.70.070. Because he does not prevail on appeal, the request is denied.


       Affirmed.




                                                                  &r(tf\     .- ACT
WE CONCUR:                                                   ~f\?



IScckeg, \ •                                                 (37^ 3




       11 In his reply to Kim's response to the summary judgment motion, Lee moved to strike
Kenny Lee's statements on the grounds theywere hearsay and notsworn affidavits as required
by CR 56(e). Kim did not respond to the motion. Although the trial court did notexplicitly rule on
the motion, it did not include the statements among the materials it considered in the order
granting summary judgment dismissal.
