FILED
MARCH 4, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CAMILLE L. MARTIN, ) No. 31493-6-111 ) Appellant, ) ) v. ) ) M. SHANE McNEVIN, M.D. and JANE ) UNPUBLISHED OPINION DOE McNEVIN, husband and wife, and ) SURGICAL SPECIALISTS OF ) SPOKANE, P.S., a Washington state ) corporation, ) ) Respondents. )
BROWN, J. - Camille L. Martin appeals the trial court's summary dismissal of her
malpractice suit against her surgeon, Dr. M. Shane McNevin; his spouse; and his
medical group, Surgical Specialists of Spokane, P.S. (collectively Dr. McNevin). Ms.
Martin contends the trial court erred in concluding her expert's letter failed to establish a
prima facie case of medical malpractice and in failing to grant her a continuance to
correct the letter's deficiencies. We disagree, and affirm.
FACTS
In March 2011, Dr. McNevin performed a hemorrhoidectomy on Ms. Martin. She
claims she was lightheaded at the hospital and had low blood pressure, but was No. 31493-6-111 Martin v. McNevin
discharged anyway.1 While at home, Ms. Martin began to experience rectal bleeding.
She claims she lost consciousness at home and fell, sustaining facial injuries. Ms.
Martin went to a nearby hospital where a second surgery was performed to repair her
sutures and treat her facial injuries.
In July 2012, Ms. Martin sued Dr. McNevin for medical malpractice. During
discovery, Dr. McNevin propounded interrogatories on Ms. Martin, asking that she.
identify any experts that she intended to call at trial. She responded that she had not
yet retained an expert witness.
In December 2012, Dr. McNevin requested summary judgment dismissal of Ms.
Martin's complaint, arguing Ms. Martin failed to establish a prima facie case of medical
malpractice due to her failure to come forward with expert testimony to support her
claim. Dr. McNevin agreed to continue the summary judgment hearing to allow Ms.
Martin additional time to secure expert testimony.
On January 28, 2013, Ms. Martin submitted her summary judgment response,
partly by attaching an unsworn two-paragraph letter from Dr. Joseph A. Scoma, a
California colon and rectal surgeon. Dr. Scoma partly wrote, "I believe that there is
reason to believe that the accepted standard of care in the management of Camille
Martin was not followed. As a consequence, she suffered damages." Clerk's Papers
(CP) at 48. In early February 2013, Dr. McNevin replied to Ms. Martin's January
1 Ms. Martin's opening brief contains no citation to the record as required under RAP 10.3(a)(5), which provides, "Reference to the record must be included for each factual statement."
No. 31493-6-111 Martin v. McNevin
28 response, pointing out that Dr. Scoma's unsworn letter was inadequate under CR
56 (e) and, nevertheless, was insufficient on multiple grounds. Ms. Martin did not seek a
continuance to comply with the CR 56(e) requirements or address the insufficiencies.
At the February 8 summary judgment hearing, after the court pointed out the CR
56(e) deficiency and expressed its concerns on the merits, Ms. Martin orally requested
a continuance to present Dr. Scoma's opinions to comply with CR 56(e) and cure the
insufficiency concerns. In the end, the court denied the request, noting, "We're here on
the day, counsel is ready, and they continued it to give you an opportunity to respond,"
the court then clarified, "The whole reason I'm not granting you a continuance is
because there has been a prior continuance, and you had an opportunity at that point."
Report of Proceedings at 20, 23. The trial court then granted Dr. McNevin's request for
summary judgment, finding Dr. Scoma's letter was improper because it was not in
declaration or affidavit form. The court also found that even if the opinion was in the
proper format, it still did not establish a prima facie case of medical malpractice because
Dr. Scoma's opinion did not specify that Dr. McNevin violated a standard of care or
whether the standard of care was based on Washington or California standards. Ms.
Martin appealed.
ANALYSIS
The issue is whether the trial court erred in summarily dismissing Ms. Martin's
medical malpractice claim. She contends Dr. Scoma's letter was sufficient to meet her
prima facie burden, or, in the alternative, the court should have granted her additional
time to correct any deficiencies.
We review a summary judgment order de novo, engaging in the same inquiry as
the trial court. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552,192 P.3d 886
(2008). Summary judgment is proper if the records on file with the trial court show
"there is no genuine issue as to any material fact" and "the moving party is entitled to a
judgment as a matter of law." CR 56(c). We, like the trial court, construe all facts and
reasonable inferences in the light most favorable to the nonmoving party. Wilson v.
Steinbach, 98 Wn.2d 434, 437,656 P.2d 1030 (1982).
Summary judgment is proper in a medical malpractice case if the plaintiff lacks
competent medical evidence to establish a prima facie case. Young v. Key Pharms.,
Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). A defendant moving for summary
judgment may meet the initial burden by pointing out the absence of evidence to
support the nonmoving party's case. Id. "If the moving party is a defendant and meets
this initial showing, then the inquiry shifts to the party with the burden of proof at trial,
the plaintiff." Id. The facts set forth must be specific, detailed, and not speculative or
conclusory. Sanders v. Woods, 121 Wn. App. 593, 600, 89 P.3d 312 (2004). If, at this
point, the plaintiff '''fails to make a showing sufficient to establish the existence of an
element essential to [her] case, and on which [she] will bear the burden of proof at trial,'"
the trial court should grant the motion. Young, 112 Wn.2d at 225 (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986».
To recover on her claim against Dr. McNevin, Ms. Martin must show that a health
care provider failed to exercise the degree of care, skill, and learning expected of a
reasonably prudent health care provider at that time and in that profession, in the State
of Washington, and under the same or similar circumstances. RCW 7.70.040(1); Judy
v. Hanford Envtl. Health Found., 106 Wn. App. 26,38,22 P.3d 810 (2001). U[E]xpert
testimony is required to establish the standard of care and most aspects of causation in
a medical malpractice action." Seybold v. Neu, 105 Wn. App. 666, 676,
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FILED
MARCH 4, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CAMILLE L. MARTIN, ) No. 31493-6-111 ) Appellant, ) ) v. ) ) M. SHANE McNEVIN, M.D. and JANE ) UNPUBLISHED OPINION DOE McNEVIN, husband and wife, and ) SURGICAL SPECIALISTS OF ) SPOKANE, P.S., a Washington state ) corporation, ) ) Respondents. )
BROWN, J. - Camille L. Martin appeals the trial court's summary dismissal of her
malpractice suit against her surgeon, Dr. M. Shane McNevin; his spouse; and his
medical group, Surgical Specialists of Spokane, P.S. (collectively Dr. McNevin). Ms.
Martin contends the trial court erred in concluding her expert's letter failed to establish a
prima facie case of medical malpractice and in failing to grant her a continuance to
correct the letter's deficiencies. We disagree, and affirm.
FACTS
In March 2011, Dr. McNevin performed a hemorrhoidectomy on Ms. Martin. She
claims she was lightheaded at the hospital and had low blood pressure, but was No. 31493-6-111 Martin v. McNevin
discharged anyway.1 While at home, Ms. Martin began to experience rectal bleeding.
She claims she lost consciousness at home and fell, sustaining facial injuries. Ms.
Martin went to a nearby hospital where a second surgery was performed to repair her
sutures and treat her facial injuries.
In July 2012, Ms. Martin sued Dr. McNevin for medical malpractice. During
discovery, Dr. McNevin propounded interrogatories on Ms. Martin, asking that she.
identify any experts that she intended to call at trial. She responded that she had not
yet retained an expert witness.
In December 2012, Dr. McNevin requested summary judgment dismissal of Ms.
Martin's complaint, arguing Ms. Martin failed to establish a prima facie case of medical
malpractice due to her failure to come forward with expert testimony to support her
claim. Dr. McNevin agreed to continue the summary judgment hearing to allow Ms.
Martin additional time to secure expert testimony.
On January 28, 2013, Ms. Martin submitted her summary judgment response,
partly by attaching an unsworn two-paragraph letter from Dr. Joseph A. Scoma, a
California colon and rectal surgeon. Dr. Scoma partly wrote, "I believe that there is
reason to believe that the accepted standard of care in the management of Camille
Martin was not followed. As a consequence, she suffered damages." Clerk's Papers
(CP) at 48. In early February 2013, Dr. McNevin replied to Ms. Martin's January
1 Ms. Martin's opening brief contains no citation to the record as required under RAP 10.3(a)(5), which provides, "Reference to the record must be included for each factual statement."
No. 31493-6-111 Martin v. McNevin
28 response, pointing out that Dr. Scoma's unsworn letter was inadequate under CR
56 (e) and, nevertheless, was insufficient on multiple grounds. Ms. Martin did not seek a
continuance to comply with the CR 56(e) requirements or address the insufficiencies.
At the February 8 summary judgment hearing, after the court pointed out the CR
56(e) deficiency and expressed its concerns on the merits, Ms. Martin orally requested
a continuance to present Dr. Scoma's opinions to comply with CR 56(e) and cure the
insufficiency concerns. In the end, the court denied the request, noting, "We're here on
the day, counsel is ready, and they continued it to give you an opportunity to respond,"
the court then clarified, "The whole reason I'm not granting you a continuance is
because there has been a prior continuance, and you had an opportunity at that point."
Report of Proceedings at 20, 23. The trial court then granted Dr. McNevin's request for
summary judgment, finding Dr. Scoma's letter was improper because it was not in
declaration or affidavit form. The court also found that even if the opinion was in the
proper format, it still did not establish a prima facie case of medical malpractice because
Dr. Scoma's opinion did not specify that Dr. McNevin violated a standard of care or
whether the standard of care was based on Washington or California standards. Ms.
Martin appealed.
ANALYSIS
The issue is whether the trial court erred in summarily dismissing Ms. Martin's
medical malpractice claim. She contends Dr. Scoma's letter was sufficient to meet her
prima facie burden, or, in the alternative, the court should have granted her additional
time to correct any deficiencies.
We review a summary judgment order de novo, engaging in the same inquiry as
the trial court. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552,192 P.3d 886
(2008). Summary judgment is proper if the records on file with the trial court show
"there is no genuine issue as to any material fact" and "the moving party is entitled to a
judgment as a matter of law." CR 56(c). We, like the trial court, construe all facts and
reasonable inferences in the light most favorable to the nonmoving party. Wilson v.
Steinbach, 98 Wn.2d 434, 437,656 P.2d 1030 (1982).
Summary judgment is proper in a medical malpractice case if the plaintiff lacks
competent medical evidence to establish a prima facie case. Young v. Key Pharms.,
Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). A defendant moving for summary
judgment may meet the initial burden by pointing out the absence of evidence to
support the nonmoving party's case. Id. "If the moving party is a defendant and meets
this initial showing, then the inquiry shifts to the party with the burden of proof at trial,
the plaintiff." Id. The facts set forth must be specific, detailed, and not speculative or
conclusory. Sanders v. Woods, 121 Wn. App. 593, 600, 89 P.3d 312 (2004). If, at this
point, the plaintiff '''fails to make a showing sufficient to establish the existence of an
element essential to [her] case, and on which [she] will bear the burden of proof at trial,'"
the trial court should grant the motion. Young, 112 Wn.2d at 225 (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986».
To recover on her claim against Dr. McNevin, Ms. Martin must show that a health
care provider failed to exercise the degree of care, skill, and learning expected of a
reasonably prudent health care provider at that time and in that profession, in the State
of Washington, and under the same or similar circumstances. RCW 7.70.040(1); Judy
v. Hanford Envtl. Health Found., 106 Wn. App. 26,38,22 P.3d 810 (2001). U[E]xpert
testimony is required to establish the standard of care and most aspects of causation in
a medical malpractice action." Seybold v. Neu, 105 Wn. App. 666, 676,19 P.3d 1068
(2001). This medical testimony must be based upon a reasonable degree of medical
certainty. McLaughlin v. Cooke, 112 Wn.2d 829, 836, 774 P.2d 1171 (1989). If a
plaintiff fails to produce competent expert testimony, the defendant is entitled to
summary judgment. Morinaga v. Vue, 85 Wn. App. 822, 832, 935 P.2d 637 (1997).
CR 56(e) requires evidence offered in support of or in opposition to a motion for
summary judgment be in the form of sworn affidavits or declarations made under
penalty of perjury. Courts do not always require strict compliance with CR 56(e)'s
express requirements due to the potentially extreme consequences of a summary
judgment motion, particularly with respect to the nonmoving party. Young Soo Kim v.
Choong-Hyun Lee, 174 Wn. App. 319, 326-27, 300 P.3d 431 (2013). "But we are aware
of no case, ... that excuses in whole[,] the requirement that statements purporting to
establish a necessary element of a claim or defense be in the form of sworn affidavits or
declarations made under penalty of perjury." Id. at 327. In Kim, the plaintiff filed a
medical malpractice suit and provided a signed, but unsworn, letter from an expert
5 I , l No. 31493-6-111 Martin v. McNevin
discussing the defendant's negligence. Id. at 326. Division One of this court held,
"[8]ecause the evidence upon which it relies was not in the proper form ... [t]he trial
court properly granted Lee's summary judgment motion." Id. at 326-27.
Similarly, here, the sole evidence submitted to establish a prima facie case of
negligence is Dr. Scoma's two-paragraph unsworn letter. This letter does not satisfy
CR 56(e) requirements or create a disputed issue of material fact. Without more, the
trial court properly granted Dr. McNevin's summary judgment motion.
Even assuming the letter was admissible, Dr. Scoma insuffiCiently states, "I
believe that there is reason to believe that the accepted standard of care in the
management of Camille Martin was not followed. As a consequence, she suffered
damages." CP at 48. Ms. Martin must show a health care provider failed to exercise
the degree of care, skill, and learning expected of a reasonably prudent health care
provider at that time and in that profession, in the State of Washington, and under the
same or similar circumstances. Judy, 106 Wn. App. at 38. She must further show that
the health care provider's actions were the proximate cause of her injuries. RCW
7.70.040(2). Dr. Scoma's letter does not meet this standard. Nothing shows Dr.
McNevin failed to exercise the degree of care of a reasonably prudent health care
provider, a violation of Washington's standard of care, and that Dr. McNevin caused Ms.
Martin to suffer damages. The letter is insufficient to establish a prima facie case of
medical malpractice.
Ms. Martin next contends the court erred in denying her oral request for a
continuance to correct the deficient evidence. CR 56(f) states, "Should it appear from
the affidavits of a party opposing the motion that he cannot, for reasons stated, present
by affidavit facts essential to justify his opposition, the court may refuse the application
for judgment or may order a continuance to permit affidavits to be obtained." We review
the denial of a CR 56(f) motion for abuse of discretion. Pitzer v. Union Bank of CA, 141
Wn.2d 539, 556, 9 P.3d 805 (2000).
A trial court does not abuse its discretion if "'(1) the requesting party does not
offer a good reason for the delay in obtaining the desired evidence; (2) the requesting
party does not state what evidence would be established through the additional
discovery; or (3) the desired evidence will not raise a genuine issue of material fact.,n
Id. (quoting Tumerv. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989». "Only one of
the qualifying grounds is needed for denial." Gross v. Sunding, 139 Wn. App. 54, 68,
161 P.3d 380 (2007) (citing Pelton v. Tri-State Mem'l Hosp., 66 Wn. App. 350, 356, 831
P.2d 1147 (1992».
Ms. Martin sued in July 2012 and during discovery, Dr. McNevin learned she did
not have an expert to establish the necessary elements of her claim. In December
2012, he requested summary judgment dismissal. Dr. McNevin then agreed to continue
the hearing to allow Ms. Martin additional time to secure expert testimony. Ms. Martin
submitted her responsive documents in late January 2013. Before the February 8, 2013
summary judgment hearing, the sufficiency of Dr. Scoma's letter was called into
question, but Ms. Martin did nothing to correct the CR 56 (e) deficiencies until the court
expressed its procedural and substantive reservations at hearing. Only then, did she
make her informal continuance request. Considering all, the trial court had tenable
grounds to deny her continuance request. While "'justice'" is the trial court's '''primary
consideration'" in ruling on a motion for continuance, even an informal one, Ms. Martin
failed to meet her burden of proof. Butler v. Joy, 116 Wn. App. 291,299,65 P.3d 671
(2003) (quoting Coggle v. Snow, 56 Wn. App. 499,508,784 P.2d 554 (1990».
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown. J. WE CONCUR:
Korsmo, .J. Sperline, J.P.T.