       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GEORGE CANTU,
                                            No. 80229-1-I
                         Appellant,
                                            DIVISION ONE
                         v.
                                            ORDER WITHDRAWING
PROVIDENCE HOSPITAL and                     AND SUBSTITUTING OPINION
SANJEEV VADERAH, MD,

                        Respondents.


       The court has determined that the opinion in the above-entitled case filed on

June 8, 2020 shall be withdrawn and a substitute unpublished opinion be filed.

       Now, therefore, it is hereby

       ORDERED that the opinion filed on June 8, 2020 is withdrawn and a

substitute unpublished opinion shall be filed.

              FOR THE COURT:
          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 GEORGE CANTU,
                                                       No. 80229-1-I
                            Appellant,
                                                       DIVISION ONE
                            v.

 PROVIDENCE HOSPITAL and                               UNPUBLISHED OPINION
 SANJEEV VADERAH, MD,

                            Respondents.

       MANN, C.J. — George Cantu appeals the summary judgment dismissal of his

medical malpractice action. We affirm, holding that summary judgment was appropriate

because Cantu failed to produce the requisite expert testimony to support his claims.

                                                  I.

       On March 3, 2015, after complaining of chest pain, Cantu underwent a cardiac

catheterization with Skagit Valley Hospital cardiologist Dr. Sanjeev Vaderah.

Following the procedure, Dr. Vaderah recommended that Cantu immediately transfer to

Providence Hospital for additional medical treatment. Cantu transferred the next day.

       On March 6, Cantu underwent a coronary artery bypass graft surgery with

cardiothoracic surgeon Dr. James Brevig at Providence. Dr. Brevig’s chart notes

indicated that Cantu suffered a “respiratory arrest in [the] preoperative holding area”

before the surgery, and was “initially unresponsive, but recover[ed].” The incident was


         Citations and pincites are based on the Westlaw online version of the cited material.
No. 80229-1-I/2


“likely related to medication administration.” Dr. Brevig performed the surgery without

any further complications and Cantu was discharged from Providence days later.

        In March 2018, Cantu filed a pro se medical malpractice complaint against

Providence and Dr. Vaderah. The complaint alleged he received the wrong medication

at Providence that caused him to experience “oxygen deprivation,” resulting in “some

dementia,” “difficulties with thought processes,” “poor memory,” and “changes in

personality and behavior.”

        Dr. Vaderah moved for summary judgment, arguing that the complaint should be

dismissed because Cantu failed to identify any expert support for his claims and that the

doctrine of res ipsa loquitur was inapplicable. Providence joined the motion. The trial

court granted summary judgment and later denied Cantu’s motion for reconsideration.

        Cantu, still pro se, appeals. 1

                                                   II.

        Preliminarily, to the extent Cantu argues that the trial court should have applied a

more lenient standard toward him as a pro se litigant, his argument fails. In

Washington, courts “hold pro se parties to the same standards to which it holds

attorneys.” Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P.3d 1187 (2010); In re

Marriage of Wherley, 34 Wn. App. 344, 349, 661 P.2d 155 (1983) (“[T]he law does not

distinguish between one who elects to conduct his or her own legal affairs and one who

seeks assistance of counsel—both are subject to the same procedural and substantive

laws.”).


        1 Cantu’s opening brief states that he “is not appealing the dismissal of defendant Dr. Vaderah

from the case.” He has also filed a document in this appeal entitled “Appellant’s Motion to Voluntarily
Dismiss Doctor Vaderah from this Appeal and Declaration of Service.” Because our holding resolves all
issues in this appeal, we deny the motion as moot.


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                                             III.

       Cantu “seeks to overturn the [trial court’s] erroneous summary judgment

dismissal.” We conclude there was no error.

       We review summary judgments de novo, engaging in the same inquiry as the

trial court, and viewing the facts and the inferences in favor of the nonmoving party.

Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).

“Summary judgment in favor of the defendant is proper if the plaintiff fails to make a

prima facie case concerning an essential element of his or her claim.” Seybold v. Neu,

105 Wn. App. 666, 676, 19 P.3d 1068 (2001). If the defendant shows an absence of

evidence to establish the plaintiff’s case, “the burden shifts to the plaintiff to produce

evidence sufficient to support a reasonable inference that the defendant was negligent.”

Seybold, 105 Wn. App. at 676.

       A cause of action for medical malpractice requires the plaintiff to show that (1)

the healthcare provider failed to exercise the requisite standard of care and (2) such

failure was a proximate cause of the plaintiff’s injuries. RCW 7.70.040. But only

experts are allowed to testify regarding the standard of care and whether the healthcare

provider met that standard. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 228-

29, 770 P.2d 182 (1989). Moreover, “the expert testimony must be based on facts in

the case, not speculation or conjecture.” Seybold, 105 Wn. App. at 677. The expert’s

“testimony must be sufficient to establish that the injury-producing situation ‘probably’ or

‘more likely than not’ caused the subsequent condition, rather than that the accident or

injury ‘might have,’ ‘could have,’ or ‘possibly did’ cause the subsequent condition.”

Merriman v. Toothaker, 9 Wn. App. 810, 814, 515 P.2d 509 (1973) (citing Ugolini v.




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No. 80229-1-I/4


States Marine Lines, 71 Wn.2d 404, 407, 429 P.2d 213 (1967)). Such testimony must

also be based on a reasonable degree of medical certainty. McLaughlin v. Cooke, 112

Wn.2d 829, 836, 774 P.2d 1171 (1989). If the 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).

        Here, even when viewing the facts in a light most favorable to him, the record

shows that Cantu did not identify a competent expert who would testify in support of his

claim that the treatment he received at Providence or from Dr. Vaderah fell below the

applicable standard of care. Nor did Cantu disclose an expert to testify that such

treatment caused his injuries. Summary judgment in favor of the defendants was

proper on this basis. 2

                                                    IV.

        Cantu advances several additional arguments in his brief. They lack merit.

                                                    A.

        Cantu contends that the trial court erred in denying his motion for a fourth

continuance of the summary judgment hearing.

        Trial courts may continue a summary judgment motion to give the nonmoving

party additional time to conduct discovery. CR 56(f). A court may deny a motion for



        2  Citing Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997), Cantu argues that
the trial court should have given him more time to conduct discovery, not dismiss his case. In Burnet, our
Supreme Court held that when imposing sanctions for discovery violations under CR 37(b)(2), the trial
court must indicate on the record whether the sufficiency of a lesser sanction was explicitly considered,
whether the conduct that led to the sanction was willful, and whether the violation substantially prejudiced
the opponent’s ability to prepare for trial. Burnet, 131 Wn.2d at 493-94. Because the trial court did not
impose any discovery sanctions below, Burnet is inapplicable to this case.
          Additionally, Cantu does not assign error to or present any argument regarding application of the
res ipsa loquitur doctrine. Thus, we do not address the issue. Holder v. City of Vancouver, 136 Wn. App.
104, 107, 147 P.3d 641 (2006) (a party abandons an issue on appeal by failing to brief the issue).


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continuance when: “(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.” Turner v. Kohler, 54 Wn. App. 688, 693, 775

P.2d 474 (1989). We review denial of a summary judgment continuance for an abuse of

discretion. 3 Mannington Carpets, Inc. v. Hazelrigg, 94 Wn. App. 899, 902, 973 P.2d

1103 (1999).

        Cantu requested his fourth continuance on the ground that discovery was

ongoing and that a trial date had not yet been set. 4 But Cantu knew in March 2019,

about three months before the summary judgment hearing, that no more continuances

would be granted. The court advised Cantu that there “will be no more continuances

based on not having a lawyer; no more continuances based on not being ready to

proceed with expert testimony; and no more continuances based on incomplete

discovery.” Cantu had approximately 15 months from the date of the filing of his

complaint to conduct discovery, retain counsel, and obtain any experts needed before

his complaint was dismissed.

        Under the circumstances, the trial court did not abuse its discretion in denying

Cantu another continuance. 5


        3  A court abuses its discretion when it bases its decision on manifestly unreasonable or untenable
grounds. Trummel v. Mitchell, 156 Wn.2d 653, 671, 131 P.3d 305 (2006).
         4 Initially, the summary judgment hearing was set for December 28, 2018. The hearing was first

continued to February 7, 2019 based on Cantu’s claims of unavailability. Then, based on Cantu’s
requests for more time to conduct discovery, the hearing was continued to March 8, 2019 and finally
continued to June 6, 2019.
         5 Cantu also asserts that the trial court erred by denying his motion to compel discovery from

Providence he deemed necessary to defeat summary judgment. As nothing in this record shows the trial
court ruling on such a motion, there is no ruling for us to review on appeal. Mayekawa Manufacturing
Co., Ltd., v. Sasaki, 76 Wn. App. 791, 796 n.6, 888 P.2d 183 (1995) (ruling must be final and definitive to
preserve the right to review).


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                                                    B.

        Cantu next argues that the trial court erred in denying reconsideration under CR

59 and CR 60. Since he failed to establish any grounds to justify reconsideration, the

trial court did not err.

        We review a trial court’s decision on a motion for reconsideration for abuse of

discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674,

685, 41 P.3d 1175 (2002). There was a tenable basis for the trial court to rule as it did.

Cantu’s motion for reconsideration, in various forms, asserted that he had only recently

learned of the identity and employer of Dr. Nikolay Usoltsev, the anesthesiologist he

later claims gave him the wrong medication. 6 His motion did not disclose any new

experts for the trial court’s consideration. Thus, the court did not err in denying

reconsideration.

                                                   C.

        Cantu also argues that the trial court erred by denying his motion to amend his

complaint to add Dr. Usoltsev as a defendant. Leave to amend pleadings is freely given

by a trial court when justice so requires. CR 15(a). However, “[w]hen a motion to

amend is made after the adverse granting of summary judgment, the normal course of

proceedings is disrupted and the trial court should consider whether the motion could

have been timely made earlier in the litigation.” Doyle v. Planned Parenthood of

Seattle-King County, Inc., 31 Wn. App. 126, 130-31, 639 P.2d 240 (1982). We review



          6 The record does not support Cantu’s claim of “recently learning” of Dr. Usoltsev’s identity.

Medical records attached as an exhibit to Cantu’s March 4, 2009, opposition to summary judgment
identified Dr. Usoltsev as one of three doctors that met with Cantu’s family in the Pre Op holding area
after the respiratory event, and that Dr. Usoltsev would be following up with the family the next day when
he performed his postoperative anesthesia evaluation. At a minimum, Cantu was aware of Dr. Usoltsev’s
identity for three months before the June 2019 summary judgment hearing.


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No. 80229-1-I/7


the denial of a motion to amend for abuse of discretion. Cambridge Townhomes, LLC

v. Pac. Star Roofing, Inc., 166 Wn.2d 475, 483, 209 P.3d 863 (2009).

       Here, Cantu moved to amend his complaint more than 15 months after his

original complaint, about seven motions after filing medical records containing Dr.

Usoltsev’s name, and over a week after summary judgment. On this record, the trial

court had tenable grounds to deny Cantu’s motion to amend. It did not err.

                                              D.

       Finally, Cantu contends that the “denial of discovery, amendment to add doctor

Usoltsev coupled with dismissal of the case violate[d his] due process rights

guaranteed” by the state and federal constitutions. But his brief neither states how the

trial court’s orders violated his rights to due process nor cites to relevant parts of the

record or to any legal authority that supports his contention. Accordingly, this argument

is insufficient for appellate review. RAP 10.3(a)(6); Cowiche Canyon Conservancy v.

Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

                                              V.

       We deny Cantu’s request for attorney fees and costs on appeal. Beyond not

being the prevailing party, such fees are not available on appeal to a nonlawyer, pro se

litigant. In re Marriage of Brown, 159 Wn. App. 931, 938, 247 P.3d 466 (2011).

                                             VI.

       For the reasons discussed above, we affirm the trial court’s summary judgment

dismissal and denial of reconsideration.




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No. 80229-1-I/8




WE CONCUR:




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