A woman fell and suffered a shoulder injury. She sought treatment at the emergency room (ER). She was seen by a physician’s assistant (PA). The hospital did not have an MRI, so the PA ordered x-rays taken of the woman’s shoulder. The x-ray results were uploaded to the internet and eventually reviewed by an orthopedic surgeon.
The PA diagnosed the woman with a dislocated shoulder and humeral head fracture with a 1 cm displacement. The PA consulted with the orthopedic surgeon and they decided the best plan of care was to first manipulate the shoulder back into place. The orthopedic surgeon recommended the PA perform a closed reduction of the shoulder dislocation, a medical maneuver involving physical manipulation of the shoulder in an effort to pop it back into its socket, which is referred to as a closed reduction because it is done without surgery.
The PA attempted a closed reduction of the dislocation. The first two attempts were unsuccessful. On the third attempt, the PA felt a “pop” suggesting the humerus head had moved into the shoulder socket. 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 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, the PA again contacted the orthopedic surgeon. The woman was transferred to another hospital. The orthopedic surgeon performed surgery on the woman’s right shoulder three days later. The orthopedic surgeon provided follow up care and believed the surgery was successful.
Two years later, the woman returned to the orthopedic surgeon because she had suffered a rotator cuff tear. The orthopedic surgeon performed a surgical repair of the right shoulder’s rotator cuff.
The woman consulted an attorney about a possible medical negligence claim due to continued complications with her shoulder. The woman’s attorney met with the orthopedic surgeon regarding his role in the woman’s ER treatment. The woman’s attorney assured the orthopedic surgeon he did not intend to name him as a defendant at that time and his theory of negligence was against the PA and the PA’s employer. The attorney brought the woman’s medical records to the meeting. The records showed the orthopedic surgeon consulted with the PA while the woman was being treated at the hospital. During the meeting, the woman’s attorney inquired about which x-rays the orthopedic surgeon had reviewed and when he had reviewed them. The orthopedic surgeon reported that he had no recollection of seeing the pre-reduction x-rays at the time of his consultation with the PA but remembered the post-reduction x-rays.
The woman filed a medical malpractice claim against the PA and his employer.
During discovery, the woman obtained a document known as an “Exam Audit Trail,” that identified who had access to the x-rays on the day the woman injured her shoulder. The audit trail showed the orthopedic surgeon had access to the pre-reduction x-rays during his consultation with the PA. The woman amended the complaint to include a negligence claim against the orthopedic surgeon.
The orthopedic surgeon, PA, and PA’s employer filed motions for summary judgment. In support of their motion, the PA and PA’s employer submitted an affidavit from a board certified emergency medicine physician who opined that the PA complied with the applicable standard of care under the circumstances. On the issue of causation, the PA’s expert in emergency medicine specifically described the maneuvers used by the PA during the three attempts to reduce the woman’s dislocation and opined the maneuvers did not involve sufficient forces or torque to produce any new fracturing of her shoulder.
In response to the PA and PA’s employer’s motion for summary judgment, the woman provided an affidavit from an orthopedic surgeon who opined the culmination of the PA’s three attempts to reduce the woman’s shoulder dislocation caused a severely comminuted fracture in at least three parts of her right shoulder. The woman also submitted an affidavit from her expert PA who opined that the breach of the standard of care for emergency PAs was the proximate cause of what is likely a permanent injury to the woman’s right upper extremity. The woman’s expert orthopedic surgeon disputed whether the bone was broken before the PA addressed the shoulder dislocation. The woman’s expert orthopedic surgeon and the woman’s expert PA both indicated that there was insufficient sedation when the PA worked on the shoulder. Finally, the woman’s expert PA stated that the PA should not have attempted the reduction on his own and should not have attempted the second and third maneuvers once the first effort failed.
The trial court found the woman had submitted sufficient expert testimony to raise a material issue of fact on whether the PA complied with the standard of care. But the trial court found the woman had not raised a material issue of fact with respect to causation. The trial court concluded the woman’s argument failed on the causation element. The trial court granted summary judgment.
The orthopedic surgeon argued that 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. The trial court rejected the woman’s contention that the continuing treatment doctrine prevented the limitations period from beginning to run until after the rotator cuff surgery because there was no connection between the earlier treatment and the rotator cuff surgery.
The Adams Superior Court dismissed the claims against the orthopedic surgeon, PA, and the PA’s employers.
The Court of Appeals of Washington, Division 3, affirmed the dismissal of the action against the orthopedic surgeon and reversed the dismissal of the action against the PA and his employer. The court held that the trial court erred in dismissing the action against the PA and his employer and the trial court correctly concluded that the statute of limitations barred the claim against the orthopedic surgeon.
The trial court erred in dismissing the action against the PA and his employer. An expert must identify facts that establish the plaintiff’s case rather than simply state conclusory opinions. The court found that the woman’s experts stated sufficient facts to avoid summary judgment on causation. The affidavits of her expert orthopedic surgeon and expert PA presented questions of fact that, if believed by the jury, would support a verdict in favor of the woman on the theory that the PA caused the broken shoulder.
The trial court correctly concluded that the statute of limitations barred the claim against the orthopedic surgeon. The woman amended her complaint to name the orthopedic surgeon as a new defendant three years and 266 days after she was injured, which is more than three years after the date of injury. The amended complaint does not relate back to the original complaint because the woman was aware of the orthopedic surgeon’s role in her care based on her medical records. The orthopedic surgeon was not on notice of the action within the limitations period and he did not know the action would be brought given the woman’s counsel’s assurance he was not going to be included as a defendant. The continuing treatment doctrine did not apply. There was no continuing treatment between the two times the woman sought treatment from the orthopedic surgeon. The court found no evidence that the rotator cuff surgery was due to negligence in the earlier treatment.
The Court of Appeals of Washington, Division 3, affirmed the trial court’s dismissal of the action against the orthopedic surgeon and reversed the trial court’s dismissal of the action against the PA and his employer.
See: Sweeney v. Adams County Public Hospital District No. 2, 2016 WL 4132291 (Wash.App. Div. 3, August 2, 2016)(not designated for publication).
See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care