Eberhardt v. Providence Health & Servs. Or.

444 P.3d 511, 298 Or. App. 454
CourtCourt of Appeals of Oregon
DecidedJuly 10, 2019
DocketA162183
StatusPublished
Cited by2 cases

This text of 444 P.3d 511 (Eberhardt v. Providence Health & Servs. Or.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eberhardt v. Providence Health & Servs. Or., 444 P.3d 511, 298 Or. App. 454 (Or. Ct. App. 2019).

Opinion

LAGESEN, P. J.

*456In 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 *512affidavit 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 plaintiff's injuries. In response, plaintiff, through counsel, submitted an ORCP 47 E affidavit in which plaintiff's 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, plaintiff's 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 *457of 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. Beal , 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 plaintiff's written response to the motions for summary judgment and stated that defendants could file replies "in the usual course."

*458Plaintiff 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 treatment" of plaintiff and that those deviations caused *513plaintiff "to suffer permanent damages and harm."

In reply, defendants argued that Atallah's unsworn letter did not comply with the requirements of ORCP 47 for a number of reasons and, thus, did not create a dispute of fact. Defendant Providence also pointed out that plaintiff had not submitted any evidence relating to its alleged vicarious liability for Roberts's conduct and that it was entitled to summary judgment for that additional reason.

At the start of the hearing on the motions for summary judgment, the trial court inquired whether there had been any further filings following defendants' replies. The parties responded that there had not been, although plaintiff said, "I was going to file stuff, but I talked to your-your assistant and she said just hold off to file. I have some more paperwork." The court responded that it was "past the point for filing anything in addition to the response." Plaintiff did not tell the court what her additional paperwork was. She simply argued that the court should let the case go forward. She acknowledged that the Seattle attorney that she previously had referenced was not admitted to practice in Oregon and said that she had started looking for other lawyers. She explained that she wanted to go to trial in August and would have a lawyer by then, and also that she had medical experts.

The trial court granted defendants' motions for summary judgment. It ruled that plaintiff's evidence-that is, the Atallah letter-was not admissible and was "not anything that, under the rules, I can consider." Thus, it concluded, "on the basis of the record that's before me, I have no recourse but to grant their motions and enter judgment *459for the Defendants, which will terminate the lawsuit." The court directed defendants to prepare an appropriate order and judgment.

As directed by the trial court, defendants prepared the proposed order and judgment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cullen v. Clean Water Services
344 Or. App. 228 (Court of Appeals of Oregon, 2025)

Cite This Page — Counsel Stack

Bluebook (online)
444 P.3d 511, 298 Or. App. 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eberhardt-v-providence-health-servs-or-orctapp-2019.