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, Appellant,

v. CHOONG-HYUN LEE, CHOONG-HYUN LEE, DMD, PLLC d/b/a LEE FAMILY DENTAL, and JOHN DOES 1-10, Respondents. 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 summaryjudgment 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 Kimthat, among other things, a bridge at teeth Nos. 12-15 was loose, tooth No. 13 needed to be No. 67949-0-I DIVISION ONE

PUBLISHED OPINION

FILED: April 1,2013No. 67949-0-1/2 

### extracted, and a new bridge should be putin 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 ofthe upper left tooth that had been
1Tooth No. 13 is locatedin the upperleft of the mouth and is flanked bytoothNo. 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 thejaw. 2To avoid confusion between Choong-Hyun Lee and Kenny Lee, the latter is referred to by his full name. 2No. 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 

### requestfor mediation, pursuantto 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.

3Thenotice requirement offormer RCW 7.70.100(1) (2006) was held unconstitutional several months after Kimsent a notice of intent in this case. Waples v. Yi. 169 Wn.2d 152, 161, 234 P.3d 187 (2010). The parties' dispute does notinvolve the noticerequirement. 3No. 67949-0-1/4 

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

### procedure to place crowns inthe upper left and lower rightareas 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 summaryjudgment based on the statute oflimitations. The trial court granted Lee's motion. Kim moved for reconsideration, which was denied. Kim appeals. DISCUSSION 

### We review an order ofsummaryjudgment de novo. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). A motion for summaryjudgment 

### 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 ofmaterial fact as to when the statutoryperiod commenced. CR 56(c); Olson v. Siverlinq, 52 Wn. App. 221, 224, 758 P.2d 991 

### (1988). The statute oflimitations is an affirmative defense onwhich the defendant bears the burden of proof. Haslund v. CityofSeattle, 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.4As it relates to this case, the statute provides that such an action "shall be commenced withinthree years ofthe act or omission alleged to have caused 

### the injury orcondition "5 RCW4.16.350(3). RCW4.16.350 was enactedin 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 negligenttreatment."6 In a casedecided aftertheenactmentofthe statute, the court explained: 

### [RCW4.16.350] substantially modified the continuingcourse 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 oftreatmentfor a 

### particular illness, the treatmentfor the particular illness orcondition had been terminated. The 1971 statute restricts the 

### commencement ofthe action to within 'three years from the date of 

### the alleged wrongful act.' [....] The concept ofthe termination ofa 'continuing course of treatment' has been succeeded by the designation of a 'date of the alleged wrongful act.'

4Amedical malpracticeplaintiffmust prove: (1) Thehealth careproviderfailed toexercise thatdegree ofcare, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class towhich he or she belongs, in the state of Washington, acting in the same or similarcircumstances; (2) Suchfailure was a proximate cause ofthe injury complained of. RCW 7.70.040(1 )(2). 5Alternatively, theaction may befiled within "one yearofthetime thepatient or hisor her 

### representative discovered orreasonably should have discovered that the injury orcondition was caused by said act oromission," RCW 4.16.350(3), but Kim has never argued that his lawsuit was timely filed under this alternative. 6In 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 ofthe femur took place on oraround 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, 94Wn.2d 146, 150, 614P.2d 1290 (1980).7 Subsequently, inCauqhell v. Group Health Co-op. ofPuaet 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, itmodified "when the clockstarts 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 

### lastnegligent act committed by the defendant. Underthe modified continuing-course-of-treatment rule, claimants must allege that the 

### lastnegligent act, notsimply the end oftreatmentitself, occurred within 3 years offiling suit. 

### ]d\ at 229. Amalpractice claimant must, in response to a motion for summary 

### judgment based on thestatute oflimitations, present someevidence that a 

### negligent act oromission took place within thelimitations period. \± at232. Underthese cases, the inquiry here concerns the date of the lastnegligent 

### act oromission alleged by Kim. Kim contends the lastnegligent acttook place on March 29, 2007, during what he claims was a follow-up appointmentfor 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, forpurposes of summary judgment, that the last 

### possible actofnegligence took place no laterthan March 15, 2007, thelastvisit

7In Bixler, thecourt held that thethree-year statute oflimitations hadrun on the plaintiffs 

### claim where the defendant allegedly failed to diagnose breast cancer in January and April 1975, 

### another doctordiagnosed hercanceron August4, 1975, and the plaintiffsued in June 1978. Bixler, 94Wn.2d at 147-50. Thecourt determined thatthe date ofthe "'alleged wrongful act'" was 

### April 29, 1975, the lasttime the plaintiffconsulted 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 itbegan to run on March 15, 

### 2007, his lawsuitwas nottimely.8 Therefore, the timeliness ofKim's lawsuit turns

on whether he presented some evidence of negligent treatment on March 29,
2007. In opposition to Lee's summaryjudgment motion, Kim submitted his own declaration and two documents from Kenny Lee. His own declaration contains no 

### specific assertion ofnegligence at the March 29 appointment.9 Ofthetwo documents from Kenny Lee, the first was an unsworn, unsigned exhibit attached to the declaration of Kim's attorney. Inthis document, Kenny Lee provided 

### responses to the attorney's questions. Inresponse to a request for his "opinion of the causal relationship between the injuries suffered and the prior dental 

### treatment inquestion," 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

81Because Kim sent Lee a mediation request on March 18, 2010, the statute of limitations was tolledfor one year under RCW7.70.110 ifthe statute oflimitations 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. CortezKloehn v. Morrison. 162 Wn. App. 166, 171, 252 P.3d 909, rev. denied. 173 Wn.2d 1002, 268 P.3d941 (2011). 9The main purpose ofKim's declaration was to support hiscontention that the March 29, 2007 visitwas a follow-up visit for the restoration work and rebut Lee's claim that it was a visitfor a routine prophylaxis. Because we viewthe facts in a light most favorable to Kim for purposes of summary judgment, Babcock v. State. 116Wn.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 uponwhich it relies was not in the proper form before the trial court. CR 56(e) requires that evidence 

### offered in support of orin opposition to a motion for summaryjudgment be in the 

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

### always demand strict compliance with theexpress requirements ofCR 56(e), due to the potentially drastic consequences of a summaryjudgment motion, 

### particularly with respectto the nonmoving party. See Meadows v. Grant's Auto Brokers. Inc., 71 Wn.2d 874, 879, 431 P.2d 216 (1967). Butwe are aware of no 

### case, nor has any beencited tous, thatexcusesin whole, therequirementthat 

### statements purporting toestablish a necessary element ofa claim ordefense, be in the form of sworn affidavits or declarations made under penalty of perjury. 

### Because the statements from Kenny Lee are notin suchform, Kim cannotrely

10 Seeajso RCW 9A.72.085 (permitting unsworn written statementto be considered if 

### statement(1) contains recitement by person that statementis true under penalty ofperjury, (2) is subscribed by person, (3) states date and place ofexecution, and (4) states it is socertified under the laws of state ofWashington). 8No. 67949-0-1/9 

### upon them to create a disputed issue ofmaterial fact.11 Thetrial court properly granted Lee's summaryjudgment 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.


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# .- ACT WE CONCUR: ~f\? 

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11 In hisreply to Kim's response to the summaryjudgment motion, Leemoved to strike Kenny Lee'sstatements on thegrounds theywere hearsay and notsworn affidavits as required by CR 56(e). Kim did not respond to the motion. Although thetrial courtdid notexplicitly rule on the motion, it did not include the statements among the materials it considered in the order granting summaryjudgment dismissal.