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Thorson v. Bend Memorial Clinic

Court of Appeals of Oregon

March 28, 2018

Laurie THORSON, Plaintiff-Appellant,
v.
BEND MEMORIAL CLINIC; Dana Marie Rhode, M.D.; and Francena Diane Abendroth, M.D., Defendants-Respondents.

          Argued and submitted April 20, 2017

          Deschutes County Circuit Court 15CV17115 Stephen P. Forte, Judge.

          Bruce A. Rubin argued the cause for appellant. With him on the briefs was Miller Nash Graham & Dunn LLP.

          Janet M. Schroer argued the cause for respondents. With her on the brief was Hart Wagner LLP.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary: Plaintiff appeals a general judgment granting summary judgment to defendants on her medical malpractice claims. Plaintiff assigns error to (1) the trial court's refusal to allow her to submit an affidavit under ORCP 47 E because she was pro se; (2) the trial court's ruling that she needed an expert witness to prevent summary judgment and proceed to trial against individual defendants; (3) the trial court's award of summary judgment in favor of Bend Memorial Clinic on plaintiff's claims that it failed to adequately train and supervise individual defendants; and (4) the trial court's ruling that a witness was unqualified to testify as an expert.

         Held:

         The trial court did not err. A self-represented party may not rely on an ORCP 47 E affdavit to create a dispute of fact and defeat a motion for summary judgment. Due-Donohue v. Beal, 191 Or.App. 98, 102, 80 P.3d 529 (2003). As to the second and third assignments of error, plaintiff's claims raised standard-of-care issues beyond the experience of an ordinary lay juror. The trial court correctly concluded that plaintiff would be required to introduce expert testimony and that she was required to demonstrate that she had procured the necessary expert testimony in order to avoid summary judgment. Finally, regarding plaintiff's proposed expert witness, ORCP 47 D requires that a summary judgment affdavit show affirmatively that the [291 Or. 34] declarant is competent to testify to the matters therein. The facts contained in the witness's affdavit did not affirmatively show that she was competent to supply the necessary expert testimony to create a dispute of fact to preclude summary judgment.

         Affrmed.

         [291 Or. 35] LAGESEN, J.

         This is an action for medical malpractice against defendant Bend Memorial Clinic and its employees, defendants Dr. Dana Rhode and Dr. Francena Abendroth. Plaintiff, who was self-represented below, alleged that Rhode negligently prescribed her Ativan, a benzodiazepine, for a much longer period than medically appropriate, and that Abendroth negligently diagnosed her with, and then treated her for, a seizure disorder rather than recognizing that her seizures were related to plaintiff's withdrawal from Ativan. Plaintiff further alleged that the clinic was negligent for failure to adequately train and supervise its employees. The trial court granted summary judgment to defendants and dismissed the case with prejudice because it concluded that plaintiff had failed to come forward with sufficient evidence to create a dispute of fact as to whether Rhode and Abendroth breached the applicable standard of care. In particular, the court determined that (1) expert testimony was required to prove plaintiff's claims against the doctors; (2) under Due-Donohue v. Beat, 191 Or.App. 98, 102, 80 P.3d 529 (2003), plaintiff, as a self-represented party, could not rely on an ORCP 47 E affidavit to create a factual dispute; and (3) plaintiff's submissions from her ostensible expert, Meret-Carmen, were insufficient to demonstrate that Meret-Carmen was competent to supply the needed expert testimony.

         On appeal, plaintiff, who is now represented by counsel, contends that the trial court erred in each respect. She asserts that (1) her medical malpractice claims against Rhode and Abendroth are not the sort for which expert testimony is required; (2) Due-Donohue is wrongly decided and that, as a result, plaintiff's ORCP 47 E affidavit was sufficient to create a genuine issue of fact on her claims; and (3) even if it was not, Meret-Carmen's affidavit sufficed to create a dispute of fact. Plaintiff also contends that her negligent training and supervision claim against the clinic is not the sort that requires expert testimony and that, therefore, the trial court erred in dismissing that claim on summary judgment. We affirm.

         We review the trial court's grant of summary judgment to determine whether there is no genuine issue of [291 Or. 36] material fact and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C. "That standard is satisfied when, viewing the evidence in the record and all reasonable inferences that may be drawn from it in favor of the nonmoving party, no reasonable factfinder could return a verdict for the nonmoving party." Chapman v. Mayfield, 358 Or. 196, 204, 361 P.3d 566 (2015). In response to a motion for summary judgment, the nonmoving party bears the burden "to produce evidence on any issue raised in the motion as to which the nonmoving party would have the burden of persuasion at trial." Id. Here, defendants' motion put at issue two elements of plaintiff's claims: breach of the applicable standards of care and causation. Thus, plaintiff, as the nonmoving party, had the burden of producing evidence, including expert evidence if necessary, that would permit an objectively reasonable factfinder to find in her favor on those elements of her claims.

         We start with plaintiff's contention that her particular claims did not require expert testimony. It is well established under Oregon law that, "[i]n most medical malpractice cases, expert testimony is required to establish the standard of care." Trees v. Ordonez, 354 Or. 197, 207, 311 P.3d 848 (2013) (citing Getchell v. Mansfield,260 Or. 174, 179, 489 P.2d 953 (1971) ("In most charges of negligence against professional persons, expert testimony is required to establish what the reasonable practice is in the community"). Although expert testimony is not required when the circumstances are such that it would be within the capacity of a lay juror to understand the issues ...


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