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Eberhardt v. Providence Health and Services-Oregon

Court of Appeals of Oregon

July 10, 2019

Deonna EBERHARDT, an individual, Plaintiff-Appellant,
v.
PROVIDENCE HEALTH AND SERVICES-OREGON, a domestic nonproft corporation, dba Providence Milwaukie Hospital, and Mark Nyysti Roberts, DO, an individual, Defendants-Respondents.

          Argued and submitted April 12, 2018

          Multnomah County Circuit Court 121216633; Thomas M. Christ, Judge pro tempore.

          Shenoa Payne argued the cause for appellant. Also on the opening brief was Shenoa Payne Attorney at Law PC. Also on the reply brief was Richardson Wright, LLP.

          Lindsey H. Hughes and George S. Pitcher argued the cause for respondents. Also on the joint brief were Hillary A. Taylor, Keating Jones Hughes, P.C., Rachel A. Robinson, and Lewis Brisbois Bisgaard & Smith LLP.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Plaintiff appeals the trial court's dismissal of her complaint with prejudice after it granted defendants' motions for summary judgment on the ground that plaintiff failed to submit an affidavit from an expert who was available and willing to testify that the doctor's conduct failed to meet the standard of care. Plaintiff assigns error to the trial court's grant of defendants' motions for summary judgment and its refusal to allow her to amend her proposed affidavit in opposition to the motions for summary judgment. Held: The trial court did not err. Plaintiff never specifically explained what additional documents she had that she could file at the hearing that would allow her to meet her burden. Additionally, the trial court had already given plaintiff additional time to file her [298 Or.App. 455] response and had made it clear to plaintiff that it would not allow any additional postponements. Affirmed.

         [298 Or.App. 456] LAGESEN, P. J.

         In this medical malpractice action, plaintiff alleges that defendant Roberts, a doctor, negligently failed to diagnose her with deep vein thrombosis, resulting in the impairment of her left leg, causing economic and noneconomic damages. Plaintiff also alleges defendant Providence Milwaukie Hospital is vicariously liable for that alleged negligence. The trial court dismissed the complaint with prejudice after granting defendants' motions for summary judgment on the ground that plaintiff failed to submit an affidavit from an expert who was available and willing to testify that Roberts's conduct failed to meet the standard of care. We affirm.

         The pertinent facts are procedural. Plaintiff filed this action in December 2012. She was represented by counsel at the time. Defendants each moved for summary judgment on the ground that, among other things, plaintiff would be unable to come forward with sufficient evidence to give rise to a genuine dispute of material fact on her negligence claim because, in their view, she would be unable to find a medical expert who would testify that Roberts's conduct breached the applicable standard of care or that any negligence on his part caused plaintiffs injuries. In response, plaintiff, through counsel, submitted an ORCP 47 E affidavit in which plaintiffs counsel certified that "plaintiff has retained an expert witness who is qualified, willing and available to testify to admissible facts or opinions that would create a question of fact as to the issues raised" by defendants' motions. Defendants then alerted the court by letter that "the issues raised in defendants' motions have now been resolved and a hearing is no longer necessary."

         Shortly thereafter, the trial court reset the scheduled trial date from August 25, 2014, to August 3, 2015. In March 2015, plaintiffs counsel moved to withdraw because family caregiving obligations precluded him from continuing to represent plaintiff. Plaintiff consented to the withdrawal, and the court allowed the motion. Plaintiff then moved to set over the trial. Plaintiff represented that she had spoken with an attorney in Seattle "who has indicated that he would represent me but only if there were a setover [298 Or.App. 457] of the trial date." The court granted the motion, setting trial for August 22, 2016.

         In December 2015, counsel for defendant Roberts contacted the Seattle lawyer who plaintiff had said she planned to retain. That lawyer stated that he was still evaluating whether to take the case and that defendants should consider plaintiff to be unrepresented. Defendants then renewed their summary judgment motions. Defendant Roberts contended that there was reason to believe that plaintiff no longer had an expert witness to support her claim. Defendant Providence also pointed out that, because plaintiff was not represented by counsel, under Due-Donohue v. Beat, 191 Or.App. 98, 80 P.3d 529 (2003), plaintiff could not rely on an ORCP 47 E affidavit to create a factual dispute on a matter for which expert testimony was required. Instead, defendants asserted, plaintiff "must present actual admissible evidence from a qualified medical expert to show that defendants violated the standard of care and that, but for defendants' negligence, she would not have suffered the alleged harm."

         The trial court scheduled a hearing on the motions for January 21, 2016. Plaintiff did not file a response to the motions before that date. At the hearing, plaintiff requested a setover of the hearing, again representing that she planned to retain the Seattle lawyer "on Saturday afternoon." Defendants objected to the postponement, argued that plaintiff had not demonstrated good cause, and pointed out that the case had been going on for more than three years. The trial court ruled that "a limited postponement of the hearing on these motions is appropriate under the circumstances" and reset the hearing for March 16. The court then told plaintiff that there would be no further postponements and that, "in advance of that hearing, you will have to respond in writing to the motions if you want to defeat them." The court further explained to plaintiff that she, or any lawyer she retained, needed to comply with all rules of procedure. It then set February 21, 2016, as the date for plaintiffs written response to the motions for summary judgment and stated that defendants could file replies "in the usual course."

         [298 Or.App. 458] Plaintiff did not retain the Seattle lawyer by the time of the next hearing. In response to defendants' motions, she filed a "Motion to Dismiss Summary Judgment," representing that she would call "Dr. Hany Atallah to testify to all elements of cause of action of medical malpractice." She attached a copy of a letter from Dr. Atallah addressed to "MedExpertwitness.com, Inc." in which Atallah expressed an opinion that defendants "deviated from the acceptable standards of care in their medical care and ...


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