Washington Supreme Court Admits Expert Affidavits and Allows Malpractice Case to Proceed Posted on November 19, 2015 by Larry Bodine The Washington State Supreme Court ruled that an untimely affidavit was admissible and that the trial court erred in granting summary judgment in the defendant’s favor. The reversal of the lower court’s summary judgment ruling allows the medical malpractice to proceed. Plaintiff Darla Keck underwent a sleep apnea procedure performed by defendants Dr. Chad Collins and Dr. Patrick Collins. The surgery was intended to open Ms. Keck’s airways to improve her breathing. Keck alleged the doctors failed to exercise the appropriate standard of care and complained about the quality of post-surgery care she received. The doctors moved for summary judgment claiming Keck lacked a medical expert to substantiate her claim. On appeal, the court considered two issues: The appropriate standard of review for a challenged ruling to strike untimely evidence; Whether the expert witness’s affidavit showed a genuine issue for trial. Sleep Apnea Surgery Gone Bad After the initial surgery in January, Keck experienced green pus from a surgical wound and severe pain. Keck developed an infection in her jawbone. Following this discovery, Dr. Chad prescribed antibiotics and subsequently performed surgery to clean the infected area and remove plates and screws in Keck’s jaw. This surgery resulted in the plaintiff’s jaw being wired shut. Three months later, a second surgery was performed to clean and install more hardware. The surgeries did not resolve the issue because Keck continued to experience pain and swelling. She was even able to move the loose hardware with her finger. Six months after the initial surgery Keck sought a second opinion and underwent a third surgery to correct the issues with her jaw. Untimely Affidavits The plaintiff’s counsel filed three affidavits, two timely and one untimely. The untimely affidavit was eliminated by the defendant’s motion to strike. The court of appeals believed all three affidavits were admissible because one contained sufficient facts to defeat summary judgment. The affidavit at issue explained that the standard of care in the State of Washington was violated and the physicians failed to address Keck’s non-union and infection appropriately. The affidavit states “with regards to follow up care, the surgeons were sending Ms. Keck to a general dentist as opposed to an oral surgeon, a plastic surgeon, or an Ear Nose and Throat doctor.” This affidavit was intended to supplement previous affidavits in the event the judge believed the first and second were insufficient to defeat summary judgment. Appropriate Standard of Review The state supreme court believed the court should have used a Burnet analysis to decide whether excluding the untimely affidavit. This analysis considers the following factors: Whether a lesser sanction would probably suffice Whether the violation was willful or deliberate; and Whether the violation substantially prejudiced the opposing party. The trial court failed to consider any other Burnet factors simply because the affidavit were untimely. This court believed all of these factors should be considered before striking an important piece of evidence. Because of the court’s failure to apply the factors, the affidavit was admissible. In a medical malpractice case, Keck is required to prove the treatment fell below the standard of care and proximately caused her injuries. The defendants argued the second affidavit did not provide any details about what standard of care applied. However, the affidavit explicitly stated, the physicians failed to examine the failure of the jawbone to heal naturally and a subsequent paragraph stated the doctor’s referrals were improper. The court concluded, all affidavits were admissible and presented enough information to present the case to a jury. This case is Keck v. Collins, et al., Case No. 90357-3, Supreme Court of the State of Washington.