                                                                           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withdrawn; a new opinion will be filed this day and has been amended as follows: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




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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:




                                            15
