### FILED 

### August 27,2013 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE DEBRAJEANBLUM, ) ) No. 306l0-l-III Appellant, ) ) 

### v. ) ) OURLADY OF LOURDES HOSPITAL) UNPUBLISHED OPINION ATPASCO dbaLOURDES HEALTH ) NETWORK, a non-profit corporation, ) ) Respondent. ) SIDDOWAY, A.C.J. Itis well settled in Washington that 

### in a medical negligence case, the defendant may move for summaryjudgmentbased on absence ofcompetent medical evidence to establish a prima facie case. DebraBlum's action against OurLady ofLourdes Hospital for injuries she claimed she suffered from a fall at the hospital was dismissed on summaryjudgmentonthis basis. She appeals. Having reviewedthe record de novo, we affmn. FACTS AND PROCEDURAL BACKGROUND In August 2007, Ms. Blumwas admitted to OurLady ofLourdes Hospital for a total leftknee replacement. When told to reportto the third floor she asked for assistance gettingthere and staffbroughther a wheelchair. When she attempted to sit down in theNo. 30610-1-111 Blum v. OurLadyof LourdesHosp.
wheelchair it either shifted orhad not been properly positioned for her and she fell, hard

onthe floor, on her buttocks. In July 2010, she brought this action againstthe hospital, alleging negligence in its "care, moving, transportation and treatment ofthe Plaintiffcausing herto fall and sustain

severe injuries." Clerk's Papers (CP) at 247-48. She claimed that the fall caused the retinas in both her eyes to detach and caused the eventual loss ofvision 

### in her left eye. She also claimed that the fall caused numbness and loss ofsensation in both her legs. The hospital denied liability, and about a year after the complaint was filed moved for summaryjudgment. It argued thatMs. Blum could not establish the essential elements ofproximate causation and damages. In support, it submitted the declaration of Dr. Irvin Handelman, who is board certified in ophthalmology and has written articles on retinal issues. Among other observations, Dr. Handelmantestified that in his experience, when people suffer a retinal tear or detachment they often attribute the detachmentto an accident while "[i]nreality, the cause ofmostretinal detachments is due to congenital defects in the eye and the effect ofaging." CP at 181. He noted that the retinal detachment in Ms. Blum's left eye occurred several months afterthe accident and the detachment in herright eye occurred almost two years later. Dr. Handelman expressed his opinion that on a moreprobable than notbasis, Ms. Blum's retinal detachments were not proximately caused by her reported fall.

2No.3061O-1-III Blum v. OurLady of Lourdes Hasp.

The hospital also relied on a report by Dr. Scott Carlson, a neurologist, who had performed an independent examination ofMs. Blum. His four-page, single-spacedreport recounted his review ofherhistory andpriorMRI and CT scans. From thatreview and his own examination, he concluded thatthe numbness in her legs was likely psychological rather thanphysiological in nature. He observed that she was angry that she had been injured in a hospital that had never apologized orinformed her ofaction it hadtaken to protect otherpatients. Dr. Carlson stated that "all ofthis is probably contributing to her anger and may well be causing this emotional presentation." CP at 178. Ms. Blum filed a response in which she argued that issues offact prevented summaryjudgment. Herresponse represented that she had consulted Dr. Charles C. Sung at the Retina LaserEye Center, who "affirms that based on a reasonable degree of medical certainty, the fall which [she] sustained in August of2007 at Lourdes Medical Center is more likely than not to have causedthe detached retina." CP at 88 (emphasis and boldface omitted). No such letter was provided, however; instead, attachedto her response, but unauthenticated and unsworn, were the following exhibits: An exhibit B, comprising pages ofmedical records from the Retina Laser Eye Center; An exhibit C, which was a letter addressed "Dear Sir orMadam," from Dr. Paulo Cancado, a neurologist, summarizing Ms. Blum's complaints, the results ofhis examination, and a conclusion, "These findings could explain

3No. 30610-1-111 Blum v. OurLady of LourdesHasp.
the symptoms in the left leg and could certainly be caused by the fall." CP at 129; An exhibit D, several pages ofinformation entitled "Detached orTorn Retina Treatment," apparently printed from a website for the Swedish Medical Center in Seattle; and An exhibit E, several pages ofinformation entitled "Retinal detachment," apparently printed from MayoClinic.com. Herresponse purported to attach a letter from Dr. Sung as exhibit A but no letter was attached. The hospital moved to strike the exhibits attached to Ms. Blum's response on the grounds they were inadmissible hearsay and unauthenticated. Rather than cure the problems with the Sung and Cancado materials, Ms. Blum filed a declaration ofa new expert, Dr. Marvin Palmer. Dr. Palmer's declaration stated in its entirety: 1. 1am the doctor whom saw and treated examinedMrs. Blum in 2008 for her detached retina after her fall. 2. Based upon a reasonable degree ofmedical certainty, the fall which Mrs. Blum sustained in August 2007 at Lourdes Medical Center is more likely than not to have caused the detached retina. CP at 76 (the striking and italics indicate handwritten modifications by the doctor). The hospital moved to strike Dr. Palmer's declaration as legally insufficient "because it is based upon conjecture and speculation, and because it contains only conclusory statements without adequate factual support." CP at 66. There is no indication in ourrecord thatthe trial court ruled on the hospital's motions to strike, although in announcing its decision on the motion for summary 4No.3061O-I-III Blum v. OurLady of LourdesHosp. jUdgment it indicatedclearly that it agreed withthe hospital that Dr. Palmer's declaration was conclusory and thatMs. Blum'sremaining exhibits were not admissible. Italso commented on the fact that Dr. Palmer's affidavit was untimely. Itgranted the hospital's motion for summaryjudgment. Ms. Blum moved for reconsideration, arguing for the first time thatthe hospital had not served all ofits summaryjudgmentmaterials 28 days prior to the hearing, as required by rule. The trial court denied the motion for reconsideration, finding that Ms. Blum "was adequately alerted to the Defendant's intentions and provided more than adequate time to respond." CP at 14. Ms. Blum appeals. ANALYSIS Ms. Blum, who was represented by counsel below, appeals pro se. Itis clear from herbriefing on appeal that she has conducted additional investigation and review following the dismissal ofher claim by the trial court and she makes new arguments, dealing withmatters that were notpresented to the trial courtwhen the motion was argued and decided. Our review is limited to the admissible evidence that was presented to the trial court, however. With respect to issues not raised in the trial court, RAP 2.5(a) states the general rule for appellate disposition: appellate courts will not entertain them. State 

### v. Scott, 110 Wn.2d 682,685, 757 P.2d 492 (1988). With that scope ofreview in mind, we turnto Ms. Blum's arguments that the trial court erred in (1) finding that her expert's affidavit was insufficient, (2) not granting a 

### 5No.3061O-1-III Blum v. OurLadyof LourdesHosp. continuance, (3) disregarding some ofher proposed exhibits while relying on others submitted by the hospital, and (4) denying her access to the courts. We address her arguments intum. I Ms. Blum contends the trial court erred in disregarding the expert affidavit ofDr. Palmer as insufficient and conclusory. The declaration established thatDr. Palmer saw and examined Ms. Blum sometime in 2008 for her detached retina and expressed his opinionthatthe fall she sustained at the hospital the prioryear, in August, more likely than not caused the detachment. Itprovided no information onthe doctor's training, experience, or specialty; how ortowhat extenthe had examined her; or any explanation ofwhy he attributed her 2008 retinal detachmentto a particular 2007 fall. A defendant in a medical negligence case may move for summaryjudgment on the groundthe plaintifflacks competent medical evidence to make out a prima facie case. Young v. KeyPharm., Inc., 112 Wn.2d 216,226, 770 P.2d 182 (1989). Ifitdoes, the plaintiffmustpresent competent evidence to rebut the defendant's initial showing ofthe absence ofa material issue offact. Id. at 227. The hospital's motion and supporting affidavits shiftedthe burden to Ms. Blum to produce an affidavit from a qualified expert alleging specific facts supporting a cause ofaction. See Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18,25,851 P.2d 689 (1993).



### 6No. 30610-1-111 Blum 

### v. OurLady of LourdesHosp.

In an action for professional negligence against a hospital, a plaintiffmust "prove by a preponderance ofthe evidence thatthe defendant

... failed to exercise that degree of skill, care, and learning possessed at thattime by other persons in the same profession, and that as a proximate result ofsuch failure the plaintiffsuffered damages." RCW 4.24.290; Byerly v. Madsen, 41 Wn. App. 495,503,704 P.2d 1236 (1985). Medical testimony is typically required to demonstrate that the alleged negligence

more likely thannot caused the injury. Shellenbarger v. Brigman, 101 Wn. App. 339, 348,3 P.3d 211 (2000). Thetestimony must be "based upon 'areasonable degree of medical certainty.'" McLaughlin v. Cooke, 112 Wn.2d 829,836,774 P.2d 1171 (1989). It is not enough that the defendant's conduct "mighthave" or "possibly did" cause the injury. Miller v. Staton, 58 Wn.2d 879,886,365 P.2d 333 (1961). The opinion ofan expertthat is only a conclusion orthat is based on assumptions does not satisfy the summaryjudgment standard. John Doe v. PugetSoundBlood Ctr., 117 Wn.2d 772, 787,819P.2d 370 (1991). An expert must backup his orher opinion with specific facts. Hash v. Children's Orthopedic Hosp. & Med. Ctr., 49 Wn. App. 130, 135, 741 P.2d 584(1987) (citing UnitedStates v. Various SlotMachs. on Guam, 

### 658 F.2d 697,700 (9th Cir. 1981)), aff'd, 110 Wn.2d 912, 757 P.2d 507 (1988). Unsupported conclusional statements alone are insufficient to prove the existence or nonexistence of issues offact. Brown v. Child, 3 Wn. App. 342, 343,474 P.2d 908 (1970).

7No. 30610-1-111 Blum v. OurLady of Lourdes Hosp.

Dr. Palmer's affidavit does not meetthe requirements ofCR 56(e). He offers no explanation ofhowhe arrived at his conclusion thatthe prioryear's fall caused Ms. Blum'sretinal detachment nor does it even point to facts on which his conclusion is based. He does not state how he is qualifiedto express an opinion on causation. The trial court properly deemed his affidavit insufficient. II Ms. Blumnext argues thatthe trial court erred in failing to grant her a continuance ofthe summaryjudgmenthearing that itwas authorizedto order by CR56(1). ButMs. Blum never requested a continuance. A party faced with a motion for summaryjudgmentmay move the courtunder CR56(1) to continue the hearing so that it can obtain an affidavit, deposition, orother discovery neededtojustify its opposition to the motion. The rule clearly requires a party to demonstrate its need for the continuance by affidavit. Decisions construing the rule have found thatthe party's affidavitmust also set forth the evidence the party seeks, how that evidence will preclude summaryjudgment, and why additional time is needed. Durandv. HlMC Corp., 151 Wn. App. 818,828,214 P.3d 189 (2009); Briggs v. Nova Servs., 135 Wn. App. 955, 961, 147 P.3d 616 (2006). Ifa party does not ask for a continuance inthe trial court, it cannotraise a claimed need for a continuance as an issue on appeal. Guile, 70 Wn. App. at 24-25; RAP 2.5(a).

8No. 30610-1-111 Blum v. OurLady of LourdesHosp.


### III Ms. Blum next raises three evidentiary issues. Some will not be considered as they were not raised below. She argues, first, that the trial court erred in refusing to consider the unsworn, unauthenticated records ofDr. Sung and Dr. Cancado as creating genuine issues of material fact. The records were unauthenticated. "Authentication is a threshold requirement designed to assure that evidence is what it purports to be." State v. Payne, 117 Wn. App. 99,106,69 P.3d 889 (2003) (citing 5C KARLB. TEGLAND, WASHINGTON PRACTICE: EVIDENCELAWAND PRACTICE § 900.2, at 175; § 901.2, at 181-82 (4th ed. 1999». CR 56(e) requires that a trial court base its summaryjudgmentdecision on specific facts, properly sworn and authenticated. In the face ofthe hospital's motion to strike the Sung and Cancado records, Ms. Blum responded with no authority that would enable the court to consider them. They were properly disregarded. She argues, next, thatthe trial court should not have admitted some ofthe evidence offered by the hospital. But she did not object to the hospital's evidence in the trial court. We review evidentiary rulings made by the trial court; "we do not ourselves make evidentiary rulings." Jacob's Meadow OwnersAss 'n v. Plateau 44 II, LLC, 139 Wn. App. 743, 756, 162 P.3d 1153 (2007). When no objection or motion to strike is made before entry ofsummaryjudgment, a party is deemed to waive any deficiency in the affidavit. Lamon v. McDonnellDouglas Corp., 91 Wn.2d 345, 352, 588 P.2d 1346 9No.30610-1-III Blum v. OurLady of LourdesHosp. (1979). Even ifwe assume there was a problem with some or all ofthe hospital's evidence (and we do not suggest that there was) Ms. Blumcannot raise it for the first time on appeal. IV Finally, Ms. Blum argues that the trial court erred in grantingjudgment summarily because the procedure prevented her from developing a case and is contrary to law, manifestly unjust, and contrary to public policy. She relies on Putman v. Wenatchee Valley Medical Center, PS, 166 Wn.2d 974,216P.3d 374 (2009) for her contention that summaryjudgment denied her access to the courts. In Putman, the court held unconstitutional a statute, RCW 7.70.150, that requiredthe plaintiffs to file a certificate ofmerit before proceeding to court. 166 Wn.2d at 977. Putman held that the certificate ofmerit requirement unduly burdened the right ofaccess to the courts, but that was because it requiredparties to present evidence that might be impossible to develop without discovery. A motion for summaryjudgment follows commencement ofan action, and therefore some opportunity for discovery. CR 56 requires 28 days' notice ofthe hearing and contains its own continuance provision-CR 56(f}-forany party who can demonstrate why he or she is unable, without further discovery, to oppose the motion. The continuance provision deters parties from moving for summaryjudgment prematurely and here the hospital did not file for summaryjudgment until a year after 10No. 30610-1-111 Blum 

### v. OurLady of LourdesHosp.

Ms. Blum's action was commenced. She was not denied her opportunity to develop evidence in support ofher claim. Affirmed. A majority ofthe panel has determined that this opinion will not be printed in the Washington Appellate Reports but itwill be filed for publicrecordpursuantto RCW 2.06.040.

WE CONCUR:

Brown, J.

Kulik, J.

11