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                                                                                                i)
                                                                                                           APPEALS
                                                                                                     S.10q 11
                                                                                          201 + JAN 28
                                                                                                           AN 9: 57
      IN THE COURT OF APPEALS OF THE STATE OF WAS

                                                DIVISION II

PAUL SALVAGE and THERESA BACON,                                           No. 43954 -9
and the marital community thereof,

                                      Appellants,


          TM




GEIGER PHARMACY, a business operating                               UNPUBLISHED OPINION
in the    state     of   Washington;    and   ROBERT
GEIGER, as an individual;




          PENOYAR, J. —        Paul Salvage appeals the trial court' s order dismissing his medical

negligence claim against pharmacist Paul Geiger and Geiger Pharmacy ( collectively referred to

as   Geiger)   on   summary judgment. Salvage contends that the trial court erred when it denied his


request for a continuance and ruled that he had not met his burden of proof. Because Salvage did

not have a good reason for the delay in obtaining the proper evidence and did not establish a

prima facie case of medical negligence, we affirm.

                                                       FACTS


          On February 26, 2010, Salvage filed suit against Geiger, alleging that Geiger improperly

filled his methadone prescription and thereby caused a single -car accident on March 16, 2007, in

which     Salvage    was   injured.    On September 28, 2010, Geiger submitted interrogatories and a

request    for   production   of   documents.       After the attorney who filed the complaint withdrew,

Salvage    proceeded pro se.
43954 -9 -II




         On January 11, 2011, Geiger sent Salvage a letter asking that the discovery be answered

and   setting      a   CR 26( i)    conference.'          After Salvage sent partial answers by e -mail, Geiger sent

him a letter on February 9, 2012, asking for full answers to the interrogatories and the request for

production.            Although Geiger extended the response deadline several times, Salvage did not


comply       with      the   extensions      and missed a          CR 26( i)      conference.   Geiger then filed a motion to


compel discovery, and the trial court ordered Salvage to provide all discovery responses by May

15, 2012.


         In response to an interrogatory asking him to identify all experts he planned to call at

trial, Salvage identified two people who repaired his vehicle, the physician who referred him for

x-
 rays on his shoulder, the orthopedic surgeon who examined his shoulder, the surgeon who


operated on his shoulder, and Dr. Stephen Kramp, the physician he consulted following the

accident about           his   methadone          use   and   his injured        shoulder.   Referring to Dr. Kramp, Salvage

disclosed the following:

             I made an appointment soon after the accident and described the medication that
             Geiger      Pharmacy      had    given me.        I told him at the time that I was cutting back to
             the original prescription he prescribed. Six months later or thereabouts we made a
             decision that it might be a good time to stop the methadone and go to a lesser
             narcotic.       He   worked with me              on   this.       Three to four weeks after stopping the
             methadone         my   right shoulder was          very   painful.      At the time I had no insurance so
             we ordered an          MRI      on   my     right shoulder which showed            blunt force trauma.   In

             January 2008 my wife put me on her insurance policy so we could go forward and
             get   the   shoulder repaired.             I still have problems with' the shoulder and fear I may
             have to have another surgery.

Clerk'   s    Papers ( CP)        at   48.    In response to a request for production asking for copies of all

documents and tangible evidence not previously produced that pertained to his answers to




  CR 26( i) requires counsel to confer about a pending discovery motion or objection before the
court entertains it.
                                                                           2
43954 -9 -II



previous    interrogatories, Salvage        responded     that      his former attorney " may have      some."   CP at


92.


         On    July   2, 2012, Geiger      moved     for summary judgment.            Geiger argued that in order to


claim medical negligence, Salvage had to show through expert testimony that the applicable

standard of care        had been   violated and      that the    violation caused     his injuries.   Because Salvage


had identified no expert who could so testify, Geiger argued that Salvage had failed to establish a

prima    facie   case   of medical negligence.         The summary judgment hearing, originally noted for

August 3, 2012, was renoted to August 10 at Salvage' s request.


         On July 30, 2012, Salvage filed a response to the motion for summary judgment and a

responding declaration. He argued that no expert witness was required to address the standard of

care   issue because the         negligence    was    apparent       on   its face.   Salvage acknowledged that he


needed an expert to address causation, however, and he requested an additional two weeks to

obtain   the necessary      affidavit.     On August 3, Geiger filed a reply to Salvage' s response and

submitted a supplemental declaration.

          On August 7, Salvage informed Geiger by phone that he had in his possession ( 1) pill

bottles from April                     2007, ( 2) the                        for               from Dr.   Kramp, (   3)   a
                          and    May                     prescription              methadone




statement from Dr. Kramp indicating that the 2007 accident occurred because the pharmacist

doubled the        methadone      prescription, (    4) " documentation" from Geiger            Pharmacy,    and (   5)   a




compact     disc   with   Dr.   Kramp'   s notes.   CP 132, 150. Salvage admitted that he had possessed but


not disclosed the documentary evidence before the. court- imposed discovery deadline of May 15,

2012.


           On August 8, he faxed one page of his medical records and a printout of prescriptions to

 Geiger.    While the parties were waiting for the August 10 hearing to be called, Salvage showed
                                                                9
43954 -9 -II



the supposed prescription bottles, which he had obtained from his former attorney on August 6,

to Geiger'       s   attorney.   The court struck the summary judgment hearing because Geiger had not

confirmed it, and the hearing was renoted and confirmed for August 17, 2012, along with

Geiger' s motion to dismiss for failure to comply with the discovery order.

            At the beginning of the August 17 hearing, the trial court cautioned the pro se Salvage

that   he   would      be held to the     same standards as an            attorney.     Salvage responded that he had been


             with an      attorney but did        not     expect him to        appear until   the   matter went   to trial.   After
working


asking for a continuance of the summary judgment hearing, Salvage began to address the

discovery motion. The trial court explained the two motions at issue and asked Salvage whether

he had any legal           reason   to   continue       the summary judgment             motion.      The following exchange

occurred:



            MR. SALVAGE:                 The summary judgment is, explain one more time, Your
            Honor, please.
             TRIAL COURT]:                The defendant' s position is that you' ve not produced any
            competent evidence.

            MR. SALVAGE: No. I have no reason to continue that.
             TRIAL COURT]:               All So we' ll go forward with that today, but you' re
                                                 right.


            asking for a continuance of the discovery —
            MR. SALVAGE: Right, yes, Your Honor.

Report      of   Proceedings ( RP)         at   7 -8.     After further argument on the discovery motion, the trial

court declined to continue it and turned to the summary judgment motion.

            Geiger argued that Salvage had not identified any expert to testify about the alleged

standard of care violation or causation.                     In fact, Salvage had produced no evidence whatsoever:


 We'    ve   had his interrogatory              responses    and   that'   s   it.   No documents, no medical records, no


nothing has been           produced      by the    plaintiff on    this   case."     RP at 14.




                                                                     11
43954 -9 -II



         Salvage responded that no expert testimony was required to show Geiger' s violation of

the standard of care and that on July 30 he had requested a two -week continuance to consult a

doctor. He said he had an appointment on August 30 with a doctor at Peninsula Pain Clinic and

would    get    a   letter   at    that time.   When the court asked Salvage whether he had an expert


declaration from a pharmacist stating that the alleged breach was the cause of his injury, Salvage

admitted   that     he did   not.    Salvage then   requested a continuance          to talk to   a pharmacist.   Salvage


added that he had medical records showing Dr. Kramp' s entry regarding the cause of his

accident, but he had no copies to show the court even though he received the disc containing

those records on May 30.

           Geiger responded that Salvage had presented no evidence that he had a prescription with

Geiger   Pharmacy,       let      alone an overprescription       for   methadone.     Geiger pointed out that Salvage


had stated that he had medical records on May 30 but had failed to provide the court with a copy

in response to the motion for summary judgment filed on June 29.

          When the court granted Geiger' s motion because of Salvage' s failure to produce

competent evidence,            Salvage   responded      that he   had " none of this   evidence."    RP at 24. He asked


for a continuance so he could speak with his attorney, adding that he had paid the attorney more

than $ 2, 000       and expected       him to be   at   the   hearing. Salvage complained that he had not been

granted   the   continuance          he had originally     requested.      The trial court informed Salvage that he


could consult with his attorney and seek reconsideration but that it would sign the proposed order

dismissing his case for failure to provide evidence showing genuine issues of material fact on the

applicable standard of care and causation.


          Salvage now appeals the order dismissing his complaint on summary judgment.



                                                                  5
43954 -9 -II



                                                             ANALYSIS


1.              CONTINUANCE


                Salvage argues that the trial court erred when it denied his request to continue the


summary judgment motion so that he could secure an affidavit from a pharmacist and obtain the

assistance of the attorney to whom he had paid $2, 000.

                We review a ruling denying a motion for a continuance to determine whether that ruling

was       manifestly      unreasonable or       based   on untenable grounds or reasons.             Coggle v. Snow, 56 Wn.


App.       499, 504, 784 P. 2d 554 ( 1990).             The trial court may deny a motion for continuance where

     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   fact. Butler v.


Joy, 116 Wn. App. 291, 299, 65 P. 3d 671 ( 2003).

                Salvage represented himself at the summary judgment hearing after explaining to the

court       that he      had been working         with an    attorney       who    had just   returned   from    vacation, "   so his


calendar restricts          him from appearing."            RP    at   4.   Salvage added that the attorney had not filed a

notice of appearance and would not appear for him formally unless the matter went to trial.

 Salvage then explained that he was ready to proceed with the summary judgment motion but

 wanted to continue the discovery motion. Salvage did not request a continuance of the summary

judgment motion until his lack of success in defeating that motion became apparent.

                Although Salvage represented himself, he was held to the same standard as an attorney.

 Batten         v.   Abrams, 28 Wn.        App.   737, 739   n.   l, 626 P. 2d 984 ( 1981).        Salvage recognized that he


 needed an expert' s affidavit when he responded to the summary judgment motion on July 30,

 and       he    asked   for   a   two -week    continuance       to   obtain     the affidavit.   At the August 17 hearing,

                                                                        C
43954 -9 -II



Salvage      said     he hoped to have    an affidavit    by   August 30.    Even though he claimed to have had a


disc with additional evidence since May 30, he had none of that evidence to show the court on

August 17.            After the trial court granted Geiger' s motion and dismissed the case, Salvage asked

again for a continuance so he could talk to his attorney, who " was supposed to be here today."

RP    at   25.      He had    said earlier   that   his attorney   could not attend   the   hearing. We see nothing

unreasonable in the court' s refusal to grant Salvage a continuance because he did not offer a

good reason for the delay in obtaining the necessary evidence.

             Salvage also argues that he did not have sufficient time to respond to the summary


judgment motion because he had only three days to .address Geiger' s supplemental declaration

before the       hearing. Geiger filed its reply to Salvage' s response and its supplemental declaration

on    August 3, in full        compliance with       CR 56( c),    which states that the moving party may file any

rebuttal documents no later than five calendar days before the hearing, which in this case

occurred         on   August 17.      The trial court did not err when it declined to continue the summary

judgment hearing.

II.          SUMMARY JUDGMENT


             Salvage argues here that the trial court erred when it granted Geiger' s motion for

summary judgment because he did not need an expert to testify about the alleged standard of care

violation.




             We review a grant of summary judgment de novo, and engage in the same inquiry as the

trial      court.      Colwell   v.   Holy Family Hosp.,          104 Wn.    App.   606, 611,   15 P. 3d 210 ( 2001).


Summary judgment is appropriate if the record before the court shows that there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR
56( c); Davies          v.   Holy Family Hosp.,       144 Wn.      App:   483, 491, 183 P. 3d 283 ( 2008).   We may
                                                                   7
43954 -9 -II



affirm a trial court' s disposition of a summary judgment motion on any basis the record supports.

Davies, 144 Wn. App. at 4491.

          To prevail on a claim of medical negligence, the plaintiff must prove that the defendant

 failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health

care provider at that time in the profession or class to which he or she belongs, in the state of

Washington, acting in the             same or similar circumstances"            and "[   s] uch failure was a proximate


cause of the        injury   complained of."        RCW 7. 70. 040( l), (2).


          A defendant moving for summary judgment in a medical negligence case bears the initial

burden of showing that there is no genuine issue of material fact or that the plaintiff lacks

competent evidence to support an essential element of his claim. Seybold v. Neu, 105 Wn. App.

666, 676, 19 P. 3d 1068 ( 2001).                 If the defendant shows that the plaintiff lacks sufficient evidence


to support his case, the burden shifts to the plaintiff to produce evidence that supports a

reasonable         inference that the defendant           was   negligent.    Seybold, 105 Wn.         App.   at   676.   The


plaintiff must respond with affidavits or other documents setting forth specific facts showing that

there   is    a    genuine    issue for trial.       CR 56( e);     Seybold, 105 Wn.      App.    at   676.   In a medical


negligence case, expert testimony is generally required to establish the standard of care and to

prove     causation.         Harris   v.   Robert C. Groth, M.
                                                             D., Inc.,           99 Wn.2d 438, 449, 663 P. 2d 113

 1983);      Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 25, 851 P. 2d 689 ( 1993).

             Salvage contends that this case falls within the exception to the expert testimony

requirement because Geiger' s negligence was so apparent that a layperson would have no

difficulty in recognizing it. See Ripley v. Lamer, 152 Wn. App. 296, 318, 215 P. 3d 1020 ( 2009)

 no expert testimony required to raise inference of negligence where surgeon left scalpel blade in
patient' s        knee).     We   need     not   decide   whether   this   exception   applies   here, however, because
43954 -9 -II



Salvage failed to produce any competent evidence whatsoever to support his claim of negligence.

Salvage produced no declaration or documentation showing that he -had a prescription for

methadone, that Geiger filled it incorrectly, and that the improper prescription led to the accident

that   caused   his injuries. The trial         court   correctly     observed      that "[ a] s the record stands before me



today,   you    have   not met your      burden    of proof at all."          RP at 24. Although Salvage now describes


this   deficiency      as   a   technicality,   we view     it   as       dispositive.   We affirm the trial court' s order


granting Geiger summary judgment and dismissing Salvage' s complaint.

         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:
           F




          Hunt, J.




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