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Keck v. Collins

Court of Appeals of Washington, Division 3

May 6, 2014

Darla Keck et al., Appellants ,
v.
Chad P. Collins et al., Respondents

Oral Argument February 6, 2014.

Page 307

[Copyrighted Material Omitted]

Page 308

Appeal from Spokane Superior Court. Docket No: 10-2-04960-1. Date filed: 08/27/2012. Judge signing: Honorable Gregory D Sypolt.

George M Ahrend (of Ahrend Albrecht PLLC ) and Mark D. Kamitomo (of The Markam Group Inc. ), for appellants.

Brian T. Rekofke (of Witherspoon Kelley ); Leslie R. Weatherhead and Geana M. Van Dessel (of Lee & Hayes PLLC ); and Jeffrey R. Galloway, Michael J. McMahon, Stephen M. Lamberson, and Courtney A. Garcea (of Etter McMahon Lamberson Clary & Oreskovich PC ), for respondents.

AUTHOR: Stephen M. Brown, J. George B. Fearing, A.C.J. concurs.

OPINION

[181 Wn.App. 73] Brown, J.

Page 309

¶ 1 Darla Keck and Ron Joseph Graham (collectively appellants) appeal the trial court's summary dismissal of their medical negligence suit against Chad P. Collins, DMD; Patrick C. Collins, DDS; and Collins Oral & Maxillofacial Surgery PS (collectively respondents).[1] Appellants contend the trial court erred in:

(1) concluding their first and second medical expert affidavits lack required specificity on negligent postoperative care,

(2) striking their third medical expert affidavit as untimely,

(3) denying a continuance of the summary judgment hearing on negligent postoperative care,
(4) concluding no genuine issue of material fact exists on negligent referral, and
(5) denying reconsideration of the summary judgment order on negligent postoperative care.

¶ 2 After concluding our standard of review is de novo, we hold the trial court erred in striking the third affidavit. We then hold the trial court erred in denying the continuance, granting summary dismissal, and denying reconsideration. Accordingly, we reverse and remand for further proceedings.

FACTS

¶ 3 On November 26, 2007, Drs. Chad and Patrick performed surgery in Spokane on Ms. Keck, a Missoula resident, to correct her obstructive sleep apnea. The surgery involves cutting the patient's jawbones, advancing them to open breathing space, and stabilizing them with plates and screws while new bone bonds them together by filling the gaps left between them. During the healing process, arch bars help align the patient's bite.

¶ 4 Ms. Keck had her first follow-up visit in Spokane on December 6, 2007. She had green pus oozing from her [181 Wn.App. 74] surgical incision as well as pain and total numbness in her chin. Dr. Patrick said the pus was nothing more than a superficial infection. Thus, Dr. Chad prescribed her clindamycin, an antibiotic. Dr. Chad then consulted Dr. Patrick regarding an x-ray of her chin. While Dr. Chad said he thought a particular shadow in the x-ray might evidence a fracture, Dr. Patrick said the shadow was nothing. Finally, Dr. Patrick dismissed her concerns about discoloration in a tooth, saying the November 26 surgery did not affect that area.

¶ 5 Drs. Chad and Patrick made no other attempt to evaluate Ms. Keck's problems. Dr. Chad planned to send letters delegating the task of monitoring Ms. Keck's wound healing to Jeffrey R. Haller, MD (her ear, nose, and throat specialist in Missoula), and delegating the task of monitoring her bite alignment to George M. Olsen, DDS (her general dentist in Missoula). The record does not show that the delegation letters were sent, which may be partly explained by Ms. Keck's need for emergency care two days later, resulting in immediate consultation between Dr. Chad and Dr. Haller. At that time, Ms. Keck visited a Missoula emergency room with an infected, painful, and swollen jaw abscess. The emergency physician consulted Dr. Haller, who consulted Dr. Chad. At Dr. Chad's direction, Dr. Haller

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removed the abscess, packed the wound, and administered clindamycin intravenously. Dr. Haller referred Ms. Keck back to Dr. Chad for further care.

¶ 6 On December 17, Dr. Olsen noted Ms. Keck had " some major bite issues" and her " [b]ite may not be correct for 6 months or until after ortho[dontics]." Clerk's Papers (CP) at 144. However, at her December 26 follow-up visit in Spokane, Dr. Chad noted she had " excellent" bite alignment. CP at 134, 147. He then removed her arch bars, claiming Dr. Olsen had approved doing so. Dr. Chad instructed Ms. Keck to return to him for further care solely as necessary. On January 22, 2008, Dr. Olsen spoke with Dr. Chad by telephone, expressing concerns about infection, pain, and [181 Wn.App. 75] swelling in Ms. Keck's jaw and relapse in her bite alignment. The next day, Dr. Chad discovered her plates and screws were loose, infection had spread into her bone, and her jaw was not uniting. He again prescribed her clindamycin.

¶ 7 On January 24, Dr. Chad surgically removed the loose plates and screws, cleaned the bone infection, and wired her jaw shut. During surgery, he confirmed her plates and screws were " completely loose." CP at 148. Dr. Chad planned to track Ms. Keck's condition on a limited basis in Spokane, rather than refer her to a Missoula ear, nose, and throat specialist; plastic surgeon; or oral surgeon. Three days later, Ms. Keck visited a Missoula emergency room with significant swelling in her jaw. An ear, nose, and throat specialist, Phillip A. Gardner, MD, consulted Dr. Chad. At Dr. Chad's direction, Dr. Gardner administered clindamycin intravenously and consulted an infectious disease specialist, Michael B. Curtis, MD. Dr. Curtis wrote, " Clearly she is failing clindamycin and I would advocate abandoning this drug." CP at 154. Another infectious disease specialist, David Christensen, MD, soon began treating her.

¶ 8 At her February 11 follow-up visit in Spokane, Ms. Keck felt constant pain and said " something is going on" in her jaw. CP at 156. On March 18, Dr. Chad surgically cleaned the bone infection and installed " more stout hardware" in her jaw because it was still not uniting. CP at 136. Dr. Chad continued tracking Ms. Keck's condition on a limited basis in Spokane.

¶ 9 At her June 11 follow-up visit in Spokane, Ms. Keck had severe pain as well as loose bone and hardware that moved with finger manipulation. On July 18, Dr. Chad surgically grafted bone, removed a tooth, and installed new hardware in her jaw. Ms. Keck had her last follow-up visit in Spokane on July 23, 2008. Dr. Chad instructed Ms. Keck to return to him for further care solely as necessary. She instead sought the care of an oral surgeon, Clark Taylor, MD, in Missoula. Dr. Clark surgically installed new hardware. [181 Wn.App. 76] Despite this effort, Ms. Keck still suffers continual " fatigue, acrid taste in her mouth, pain, swelling, nerve sensations in her eye and numbness in her cheek and chin." CP at 282.

¶ 10 Appellants sued respondents for medical negligence, partly alleging their follow-up care fell below the accepted standard of care. In August 2011, appellants disclosed Kasey Li, MD, as a medical expert witness. On December 20, 2011, Dr. Patrick moved for summary judgment, partly arguing no genuine issue of material fact exists because appellants lacked medical expert testimony establishing negligence. In February 2012, Dr. Patrick's counsel renoted the summary judgment hearing for March 30, 2012 without consulting appellants' counsel, a sole practitioner, regarding his availability.

¶ 11 From March 7 through 20, appellants' counsel was in Ephrata representing plaintiffs in a jury trial on a different medical negligence suit. Because Dr. Chad's counsel was representing a defendant in the Ephrata trial, Ms. Keck argues he knew appellants' counsel had no time to prepare a sufficient response to Dr. Patrick's summary judgment motion. Even so, Dr. Chad joined in Dr. Patrick's summary judgment motion on March 14. Appellants' counsel attempted, through his assistant, to collaborate with Dr. Li during the Ephrata trial.

¶ 12 On March 16, appellants filed a first responsive affidavit from Dr. Li, discussing solely Dr. Chad. Dr. Li opined, " I have identified standard of care violations that resulted in infection and in non-union of Ms.

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Keck's jaw." CP at 42. On March 22, appellants filed a second responsive affidavit from Dr. Li, discussing both Drs. Chad and Patrick. Dr. Li repeated his first affidavit, saying,

I have identified standard of care violations that resulted in infection and in non-union of Ms. Keck's jaw. ...

... . [181 Wn.App. 77]

5. The surgeons performed multiple operations without really addressing the problem of non-union and infection within the standard of care.
6. With regards to referring Ms. Keck for follow up care, the records establish that the surgeons were sending Ms. Keck to a general dentist as opposed to an oral surgeon or even a plastic surgeon or an Ear, Nose, and Throat doctor. Again, this did not meet with the standard of care as the general dentist would not have had sufficient training or knowledge to deal with Ms. Keck's non-union and the developing [bone] infection/osteomyelitis.

CP at 47-48.

¶ 13 In reply, respondents argued Dr. Li's first and second affidavits lacked required specificity on negligent postoperative care. On March 29, 10 days after the deadline and the day before the summary judgment hearing, appellants filed a third responsive affidavit from Dr. Li providing additional, more specific detail regarding his previously stated opinion by outlining the facts surrounding each alleged standard of care violation. Appellants' counsel submitted his affidavit noting Dr. Chad's reply was late and explaining the combined reasons for the delay. Ms. Keck's counsel requested the trial court either forgive the late filing or continue the summary judgment hearing to allow full evaluation of the late filing's contents.

¶ 14 Respondents moved to strike Dr. Li's third affidavit as untimely, arguing the late filing was inexcusable and prejudiced them because they lacked sufficient time to file a reply before the summary judgment hearing. Additionally, Dr. Patrick requested permission to file a reply after the summary judgment hearing if the trial court chose to forgive the late filing.

¶ 15 The trial court issued a memorandum opinion granting respondents' motion to strike Dr. Li's third affidavit as untimely, denying appellants' motion to continue the summary judgment hearing, and granting respondents' summary judgment motions on negligent postoperative care. The trial [181 Wn.App. 78] court incorporated its memorandum opinion into its final order. Appellants moved unsuccessfully for reconsideration.

¶ 16 Respondents each moved for summary judgment on negligent referral, arguing no genuine issue of material fact exists because their evidence was undisputed. Dr. Chad said he referred Ms. Keck to Dr. Olsen solely to monitor her bite alignment, something he was qualified to do. Dr. Patrick said he had no duty to Ms. Keck because he was never involved in ...


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