Keck v. Collins

Decision Date24 September 2015
Docket NumberNo. 90357–3.,90357–3.
Citation184 Wash.2d 358,357 P.3d 1080
CourtWashington Supreme Court
PartiesDarla KECK and Ron Joseph Graham, wife and husband; Keck and Ron Joseph Graham, as parents for the minor child, Kellen Mitchell Graham; and Kellen Mitchell Graham, individually, Respondents, v. Chad P. COLLINS, DMD; Patrick C. Collins, DDS; and Collins Oral & Maxillofacial Surgery, PS, a Washington corporation, Petitioners, Sacred Heart Medical Center, a Washington corporation, Defendant.

Geana Mae Van Dessel, Lee & Hayes, PLLC, Stephen Maurice Lamberson, Etter McMahon Lamberson Van Wert & Oresk, Courtney Anne Garcea, Lukins & Annis, P.S., Spokane, WA, for Petitioners.

George M. Ahrend, Ahrend Law Firm PLLC, Ephrata, WA, Mark Douglas Kamitomo, The Markam Group Inc. PS, Spokane, WA, for Respondents.

Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., Daniel Joseph Gunter, Riddell Williams PS, Seattle, WA, amicus counsel for of Washington Defense Trial Lawyers.

Bryan Patrick Harnetiaux, Attorney at Law, Gary Neil Bloom, Harbaugh & Bloom PS, Spokane, WA, amicus counsel for Washington State Association for Justice Foundation.

Gregory Mann Miller, Carney Badley Spellman PS, Justin Price Wade, Carney Badley Spellman, Seattle, WA, amicus counsel for Washington State Medical Association.



¶ 1 Darla Keck filed a medical malpractice case against doctors Chad Collins, DMD, and Patrick Collins, DDS (collectively the Doctors) after she experienced complications following sleep apnea

surgery. Her claim focuses on the quality of treatment that she received postsurgery, which she alleges fell below the applicable standard of care. Generally in a medical malpractice claim, a plaintiff needs testimony from a medical expert to establish two required elements—standard of care and causation. RCW 7.70.040 ; Grove v. PeaceHealth St. Joseph Hosp., 182 Wash.2d 136, 144, 341 P.3d 261 (2014).

¶ 2 The Doctors moved for summary judgment, arguing she lacked a qualified medical expert who could provide testimony to establish her claim. In response to the motion, her counsel filed two timely affidavits and one untimely affidavit from her medical expert. The trial court granted a motion to strike the untimely affidavit. Considering the remaining affidavits, the court ruled that the expert did not connect his opinions to specific facts to support the contention that the Doctors' treatment fell below the standard of care. Therefore, the court granted summary judgment for the Doctors.

¶ 3 The Court of Appeals reversed. Although it agreed that the two timely affidavits lacked sufficient factual support to defeat summary judgment, it held, under de novo review, that the trial court should have denied the motion to strike and should have considered the third affidavit. This affidavit, the court held, contained sufficient factual support to defeat summary judgment.

¶ 4 This case raises two issues.

¶ 5 First, we must decide the standard of review for a challenged ruling to strike untimely filed evidence submitted in response to a summary judgment motion. We hold that the trial court must consider the factors from Burnet v. Spokane Ambulance, 131 Wash.2d 484, 933 P.2d 1036 (1997), on the record before striking the evidence. The court's decision is then reviewed for an abuse of discretion. In this case, the trial court abused its discretion because it failed to consider the Burnet factors.

¶ 6 Second, we consider whether the expert's timely second affidavit1 showed a genuine issue for trial—that a reasonable jury could return a verdict for the plaintiff—to defeat summary judgment. We conclude it did. On this basis, we affirm the Court of Appeals.


¶ 7 On November 26, 2007, Dr. Chad and Dr. Patrick,2 performed sleep apnea3

surgery on Darla Keck. The surgery involved cutting bone on the upper and lower jaws to advance them, thereby opening airway space to improve her breathing.

¶ 8 Following the surgery, Keck suffered complications.4 On December 6, she went to a follow-up appointment with the Doctors, experiencing pain and exuding green pus from one of her surgical wounds

. Over the next several months, she continued to experience pain and swelling and developed an infection in her jawbone.

¶ 9 One or both doctors treated her after the initial surgery.5 At follow-up appointments on December 6 and 17, Dr. Chad prescribed an antibiotic. On January 24, 2008, Dr. Chad surgically removed loose plates and screws left in place from the surgery, cleaned out infected parts of the jawbone, and wired Keck's jaw shut. Keck went to the emergency room three days later experiencing facial swelling. On March 18, Dr. Chad performed another surgery to clean the infected jawbone and install “more stout hardware” because her jaw had not yet formed healthy bone, a condition called “nonunion.” Clerk's Papers (CP) at 136. At a follow-up visit on June 11, Keck had loose bone and hardware that moved with finger manipulation. On July 18, Dr. Chad surgically grafted bone and installed new hardware. Still experiencing problems, Keck went to another oral surgeon, who surgically removed old hardware and installed new hardware.

¶ 10 Keck alleges that she now suffers from chronic pain, swelling, fatigue, nerve sensations in her eye, an acrid taste in her mouth, and numbness in her cheek and chin.

¶ 11 On November 23, 2010, Keck, along with her husband and son, filed a medical malpractice action against the Doctors. Dr. Patrick moved for summary judgment on December 20, 2011, arguing that plaintiffs lacked competent medical testimony that could establish a prima facie medical negligence claim.

¶ 12 Counsel for Dr. Patrick originally scheduled the hearing on the motion for January 20, 2012. After conversation with plaintiffs' counsel, counsel for Dr. Patrick agreed to withdraw the summary judgment motion and renote it on a later date after the court issued an amended trial schedule order. After the amended schedule order issued, Dr. Patrick renoted his motion, with a hearing date scheduled for March 30. Counsel for Dr. Chad filed a joinder in the motion.

¶ 13 Civil Rule 56(c) requires that the nonmoving party submit supporting affidavits, memoranda, or law no later than 11 days before the hearing. Plaintiffs' counsel timely submitted an affidavit of plaintiffs' medical expert, Dr. Kasey Li, on March 16. This affidavit, however, referred only to Dr. Chad. On March 22, plaintiffs filed a second affidavit of Dr. Li that referred to both doctors. In all other respects, the second affidavit remained unchanged from the first. Although plaintiffs filed the second affidavit after the 11 day limit imposed by CR 56(c), the Doctors did not object on the basis of timeliness.6

¶ 14 In the second affidavit, Dr. Li stated:

1. I am Physician Board Certified in Otolaryngology and Oral Surgery. I practice both Otolaryngology and Plastic Reconstructive Surgery at Stanford Hospital in Stanford, California and am on the faculty of the hospital. Additionally, I am the founder of the Sleep Apnea Surgery Center, also located at Stanford. Among other things, I am a specialist in the diagnosis, surgery and treatment of sleep apnea

. Furthermore, I am licensed to practice in the State of Washington and have consulting privileges at Virginia Mason.

2. I am familiar with the standard of care in Washington State as it relates to the treatment of sleep apnea

and the procedures involved in Ms. Keck's case. In addition to being involved in another case in Spokane and having discussed that case with an Otolaryngologist at the University of Washington, I lecture in Washington State on many issues which include those involved in this case and, as part of that, interact with the participants and have discussions that confirm that the standard of care in Washington State is the same as a national standard of care. Additionally in my position, I interact with oral surgeons from the State of Washington which include

former students from Stanford University. Given my knowledge, it is my opinion that the standard of care involved in Ms. Keck's case in Washington State is a national standard of care.
3. I have reviewed medical records from Drs. Chad and Patrick Collins, Western Mountain Clinic, Dr. Higuchi, Deaconess Medical Center, Dr. Read, Dr. Ramien, St. Patrick's Hospital, Sacred Heart Hospital, imaging photos and disks, and medical records from Cosmetic Surgical Arts Center and Dr. George M. Olsen, D.D.S. As part of my review, I looked at the procedures performed by Drs. Chad and Patrick Collins (the surgeons) as well as the problems experienced by the Plaintiff Darla Keck. In doing so, I have identified standard of care violations that resulted in infection and in non-union of Ms. Keck's jaw. This, in turn, has resulted in a prolonged course of recovery with numerous additional procedures to repair the ongoing problems which I understand have still not resolved.
4. According to the medical records, on November 26, 2007, Darla Keck was seen by the surgeons to address sleep apnea

which was moderate to severe with a sleep score of 20. From the records, it appears that Ms. Keck was intolerant of CPAP.

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 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 infection/osteomyelitis


7. The standard of care violations as outlined herein were the proximate cause of Ms. Keck's injuries and/or ongoing problems. The opinions I express in this declaration are intended to be rendered to a reasonable degree of medical

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