FILED 

August 27,2013 

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 


DEBRA JEAN BLUM, ) 

) No. 306l0-l-III 

Appellant, ) 

) 

v. ) 

) 

OUR LADY OF LOURDES HOSPITAL) UNPUBLISHED OPINION 

AT PASCO dba LOURDES HEALTH ) 

NETWORK, a non-profit corporation, ) 

) 

Respondent. ) 

SIDDOWAY, A.C.J. It is well settled in Washington that in a medical negligence 

case, the defendant may move for summary judgment based on absence ofcompetent 

medical evidence to establish a prima facie case. Debra Blum's action against Our Lady 

ofLourdes Hospital for injuries she claimed she suffered from a fall at the hospital was 

dismissed on summary judgment on this basis. She appeals. 

Having reviewed the record de novo, we affmn. 

FACTS AND PROCEDURAL BACKGROUND 

In August 2007, Ms. Blum was admitted to Our Lady ofLourdes Hospital for a 

total left knee replacement. When told to report to the third floor she asked for assistance 

getting there and staff brought her a wheelchair. When she attempted to sit down in the 
No. 30610-1-111 


Blum v. Our Lady ofLourdes Hosp. 


wheelchair it either shifted or had not been properly positioned for her and she fell, hard 

on the floor, on her buttocks. 

In July 2010, she brought this action against the hospital, alleging negligence in its 

"care, moving, transportation and treatment ofthe Plaintiff causing her to 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 of vision in her left eye. 

She also claimed that the fall caused numbness and loss of sensation in both her legs. 

The hospital denied liability, and about a year after the complaint was filed moved 

for summary judgment. It argued that Ms. 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. Handelman testified that in his experience, 

when people suffer a retinal tear or detachment they often attribute the detachment to an 

accident while "[i]n reality, the cause ofmost retinal detachments is due to congenital 

defects in the eye and the effect of aging." CP at 181. He noted that the retinal 

detachment in Ms. Blum's left eye occurred several months after the accident and the 

detachment in her right eye occurred almost two years later. Dr. Handelman expressed 

his opinion that on a more probable than not basis, Ms. Blum's retinal detachments were 

not proximately caused by her reported fall. 

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Blum v. Our Lady ofLourdes Hasp. 


The hospital also relied on a report by Dr. Scott Carlson, a neurologist, who had 

performed an independent examination of Ms. Blum. His four-page, single-spaced report 

recounted his review ofher history and prior MRI and CT scans. From that review and 

his own examination, he concluded that the numbness in her legs was likely 

psychological rather than physiological in nature. He observed that she was angry that 

she had been injured in a hospital that had never apologized or informed her of action it 

had taken to protect other patients. Dr. Carlson stated that "all of this 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 of fact prevented 

summary judgment. Her response represented that she had consulted Dr. Charles C. 

Sung at the Retina Laser Eye 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 caused the detached retina." CP at 88 (emphasis 

and boldface omitted). No such letter was provided, however; instead, attached to her 

response, but unauthenticated and unsworn, were the following exhibits: 

An exhibit B, comprising pages of medical records from the Retina Laser 

Eye Center; 


An exhibit C, which was a letter addressed "Dear Sir or Madam," from Dr. 


Paulo Cancado, a neurologist, summarizing Ms. Blum's complaints, the 


results of his examination, and a conclusion, "These findings could explain 


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Blum v. Our Lady ofLourdes Hasp. 


the symptoms in the left leg and could certainly be caused by the fall." CP 

at 129; 

An exhibit D, several pages of information entitled "Detached or Torn 

Retina Treatment," apparently printed from a website for the Swedish 

Medical Center in Seattle; and 

An exhibit E, several pages of information entitled "Retinal detachment," 

apparently printed from MayoClinic.com. 

Her response 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 of a new 

expert, Dr. Marvin Palmer. Dr. Palmer's declaration stated in its entirety: 

1. 1 am the doctor whom saw and treated examined Mrs. Blum in 

2008 for her detached retina after her fall. 

2. Based upon a reasonable degree of medical 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 our record that the trial court ruled on the hospital's 

motions to strike, although in announcing its decision on the motion for summary 

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jUdgment it indicated clearly that it agreed with the hospital that Dr. Palmer's declaration 

was conclusory and that Ms. Blum's remaining exhibits were not admissible. It also 

commented on the fact that Dr. Palmer's affidavit was untimely. It granted the hospital's 

motion for summary judgment. 

Ms. Blum moved for reconsideration, arguing for the first time that the hospital 

had not served all of its summary judgment materials 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. It is clear from 

her briefing on appeal that she has conducted additional investigation and review 

following the dismissal of her claim by the trial court and she makes new arguments, 

dealing with matters that were not presented to the trial court when 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 turn to Ms. Blum's arguments that the trial 

court erred in (1) finding that her expert's affidavit was insufficient, (2) not granting a 

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No.3061O-1-III 

Blum v. Our Lady ofLourdes Hosp. 

continuance, (3) disregarding some of her proposed exhibits while relying on others 

submitted by the hospital, and (4) denying her access to the courts. We address her 

arguments in tum. 

I 

Ms. Blum contends the trial court erred in disregarding the expert affidavit of Dr. 

Palmer as insufficient and conclusory. The declaration established that Dr. Palmer saw 

and examined Ms. Blum sometime in 2008 for her detached retina and expressed his 

opinion that the fall she sustained at the hospital the prior year, in August, more likely 

than not caused the detachment. It provided no information on the doctor's training, 

experience, or specialty; how or to what extent he had examined her; or any explanation 

ofwhy he attributed her 2008 retinal detachment to a particular 2007 fall. 

A defendant in a medical negligence case may move for summary judgment on the 

ground the plaintiff lacks competent medical evidence to make out a prima facie case. 

Young v. Key Pharm., Inc., 112 Wn.2d 216,226, 770 P.2d 182 (1989). Ifit does, the 

plaintiff must present competent evidence to rebut the defendant's initial showing ofthe 

absence of a material issue of fact. Id. at 227. The hospital's motion and supporting 

affidavits shifted the burden to Ms. Blum to produce an affidavit from a qualified expert 

alleging specific facts supporting a cause of action. See Guile v. Ballard Cmty. Hosp., 70 

Wn. App. 18,25,851 P.2d 689 (1993). 

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In an action for professional negligence against a hospital, a plaintiff must "prove 

by a preponderance ofthe evidence that the defendant ... failed to exercise that degree of 

skill, care, and learning possessed at that time by other persons in the same profession, 

and that as a proximate result ofsuch failure the plaintiff suffered 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 than not caused the injury. Shellenbarger v. Brigman, 101 Wn. App. 339, 

348,3 P.3d 211 (2000). The testimony must be "based upon 'a reasonable 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 "might have" or "possibly did" cause the 

injury. Miller v. Staton, 58 Wn.2d 879,886,365 P.2d 333 (1961). 

The opinion of an expert that is only a conclusion or that is based on assumptions 

does not satisfy the summary judgment standard. John Doe v. Puget Sound Blood Ctr., 

117 Wn.2d 772, 787,819 P.2d 370 (1991). An expert must back up his or her opinion 

with specific facts. Hash v. Children's Orthopedic Hosp. & Med. Ctr., 49 Wn. App. 130, 

135, 741 P.2d 584(1987) (citing United States v. Various Slot Machs. 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 of fact. Brown v. Child, 3 Wn. App. 342, 343,474 P.2d 908 (1970). 

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Dr. Palmer's affidavit does not meet the requirements ofCR 56(e). He offers no 

explanation of how he arrived at his conclusion that the prior year's fall caused Ms. 

Blum's retinal detachment nor does it even point to facts on which his conclusion is 

based. He does not state how he is qualified to express an opinion on causation. The trial 

court properly deemed his affidavit insufficient. 

II 

Ms. Blum next argues that the trial court erred in failing to grant her a continuance 

ofthe summary judgment hearing that it was authorized to order by CR 56(1). But Ms. 

Blum never requested a continuance. 

A party faced with a motion for summary judgment may move the court under 

CR 56(1) to continue the hearing so that it can obtain an affidavit, deposition, or other 

discovery needed to justify 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 that the party's affidavit must also set forth the evidence the party seeks, how 

that evidence will preclude summary judgment, and why additional time is needed. 

Durand v. 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). 

If a party does not ask for a continuance in the trial court, it cannot raise a claimed 

need for a continuance as an issue on appeal. Guile, 70 Wn. App. at 24-25; RAP 2.5(a). 

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Blum v. Our Lady ofLourdes Hosp. 

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 of Dr. 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: EVIDENCE LAW AND PRACTICE § 900.2, at 175; § 901.2, at 181-82 (4th ed. 

1999». CR 56(e) requires that a trial court base its summary judgment decision 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, that the 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 Owners Ass '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 of summary judgment, a party is deemed to waive any deficiency in 

the affidavit. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 352, 588 P.2d 1346 

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No.30610-1-III 

Blum v. Our Lady ofLourdes Hosp. 

(1979). Even if we assume there was a problem with some or all of the hospital's 

evidence (and we do not suggest that there was) Ms. Blum cannot raise it for the first 

time on appeal. 

IV 

Finally, Ms. Blum argues that the trial court erred in granting judgment 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 974,216 P.3d 374 (2009) for her contention that 

summary judgment denied her access to the courts. In Putman, the court held 

unconstitutional a statute, RCW 7.70.150, that required the plaintiffs to file a certificate 

of merit before proceeding to court. 166 Wn.2d at 977. Putman held that the certificate 

of merit requirement unduly burdened the right of access to the courts, but that was 

because it required parties to present evidence that might be impossible to develop 

without discovery. 

A motion for summary judgment follows commencement of an action, and 

therefore some opportunity for discovery. CR 56 requires 28 days' notice of the hearing 

and contains its own continuance provision-CR 56(f}-for any 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 summary judgment 

prematurely and here the hospital did not file for summary judgment until a year after 

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Ms. Blum's action was commenced. She was not denied her opportunity to develop 

evidence in support of her claim. 

Affirmed. 

A majority of the panel has determined that 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. 

WE CONCUR: 


Brown, J. 

Kulik, J. 

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