Thorson v. Bend Mem'l Clinic

291 Or.App. 33

419 P.3d 756

Laurie THORSON, Plaintiff-Appellant,

v.BEND MEMORIAL CLINIC; Dana Marie Rhode, M.D.; and Francena Diane Abendroth, M.D., Defendants-Respondents.

A161892

Court of Appeals of Oregon.

Argued and submitted April 20, 2017.

March 28, 2018

Bruce A. Rubin, Portland, argued the cause for appellant. With him on the briefs was Miller Nash Graham & Dunn LLP.

Janet M. Schroer, Portland, argued the cause for respondents. With her on the brief was Hart Wagner LLP.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

LAGESEN, J.

This is an action for medical malpractice against defendant Bend Memorial Clinic and its employees, defendants Dr. Dana Rhode and Dr. Francena Abendroth. Plaintiff, who was self-represented below, alleged that Rhode negligently prescribed her Ativan, a benzodiazepine, for a much longer period than medically appropriate, and that Abendroth negligently diagnosed her with, and then treated her for, a seizure disorder rather than recognizing that her seizures were related to plaintiff's withdrawal from Ativan. Plaintiff further alleged that the clinic was negligent for failure to adequately train and supervise its employees. The trial court granted summary judgment to defendants and dismissed the case with prejudice because it concluded that plaintiff had failed to come forward with sufficient evidence to create a dispute of fact as to whether Rhode and Abendroth breached the applicable standard of care. In particular, the court determined that (1) expert testimony was required to prove plaintiff's claims against the doctors; (2) under Due-Donohue v. Beal , 191 Or. App. 98, 102, 80 P.3d 529 (2003), plaintiff, as a self-represented party, could not rely on an ORCP 47 E affidavit to create a factual dispute; and (3) plaintiff's submissions from her ostensible expert, Meret-Carmen, were insufficient to demonstrate that Meret-Carmen was competent to supply the needed expert testimony.

On appeal, plaintiff, who is now represented by counsel, contends that the trial court erred in each respect. She asserts that (1) her medical malpractice claims against Rhode and Abendroth are not the sort for which expert testimony is required; (2) Due-Donohue is wrongly decided and that, as a result, plaintiff's ORCP 47 E affidavit was sufficient to create a genuine issue of fact on her claims; and (3) even if it was not, Meret-Carmen's affidavit sufficed to create a dispute of fact. Plaintiff also contends that her negligent training and supervision claim against the clinic is not the sort that requires expert testimony and that, therefore, the trial court erred in dismissing that claim on summary judgment. We affirm.

We review the trial court's grant of summary judgment to determine whether there is no genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C. "That standard is satisfied when, viewing the evidence in the record and all reasonable inferences that may be drawn from it in favor of the nonmoving party, no reasonable factfinder could return a verdict for the nonmoving party." Chapman v. Mayfield , 358 Or. 196, 204, 361 P.3d 566 (2015). In response to a motion for summary judgment, the nonmoving party bears the burden "to produce evidence on any issue raised in the motion as to which the nonmoving party would have the burden of persuasion at trial." Id . Here, defendants' motion put at issue two elements of plaintiff's claims: breach of the applicable standards of care and causation. Thus, plaintiff, as the nonmoving party, had the burden of producing evidence, including expert evidence if necessary, that would permit an objectively reasonable factfinder to find in her favor on those elements of her claims.

We start with plaintiff's contention that her particular claims did not require expert testimony. It is well established under Oregon law that, "[i]n most medical malpractice cases, expert testimony is required to establish the standard of care." Trees v. Ordonez , 354 Or. 197, 207, 311 P.3d 848 (2013) (citing Getchell v. Mansfield , 260 Or. 174, 179, 489 P.2d 953 (1971) ("In most charges of negligence against professional persons, expert testimony is required to establish what the reasonable practice is in the community.") ). Although expert testimony is not required when the circumstances are such that it would be within the capacity of a lay juror to understand the issues without expert assistance, Fieux v. Cardiovascular & Thoracic Clinic, P.C. , 159 Or. App. 637, 642, 978 P.2d 429, rev. den. , 329 Or. 318, 994 P.2d 123 (1999), this is not such a case.

The standard-of-care issues raised by plaintiff's claims—the appropriate standard for prescribing Ativan and the standards governing the diagnosis of the cause of seizures in a patient with plaintiff's characteristics—involve matters beyond the experience of an ordinary lay juror. Unlike this case, the cases in which we have concluded that expert testimony is not required generally have involved much simpler allegations of medical negligence, typically concerning fairly obvious instances of negligence, such as leaving a sponge, clamp, or other foreign object in a patient following surgery. Id . For that reason, the trial court correctly concluded that plaintiff would be required to introduce expert testimony to prove her particular claims and, more to the point, was required to demonstrate that she had procured the necessary expert testimony in order to avoid summary judgment.¹

Plaintiff's next argument is that the trial court erred when it concluded that plaintiff, as a self-represented party, could not create a dispute of fact by relying on an affidavit submitted under ORCP 47 E, which provides, in part:

"If a party, in opposing a motion for summary judgment, is required to provide the opinion of an expert to establish a genuine issue of material fact, an affidavit or a declaration of the party's attorney stating that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact, will be deemed sufficient to controvert the allegations of the moving party and an adequate basis for the court to deny the motion."

However, as plaintiff acknowledges, in Due-Donohue , we held that a self-represented party may not rely on an ORCP 47 E affidavit to defeat a motion for summary judgment. 191 Or. App. at 100, 80 P.3d 529. Construing the phrase "affidavit or a declaration of the party's attorney," in light of its text, context, and legislative history, we concluded that the phrase does not include an affidavit of "the party herself, a nonattorney appearing on her own behalf." Id . Under Due-Donohue , then, the trial court was correct to conclude that plaintiff could not rely on an affidavit from herself containing the recitations otherwise required under ORCP 47 E.

Plaintiff urges us to overrule Due-Donohue , and to hold that the phrase "party's attorney" under ORCP 47 E encompasses a self-represented party acting as her own attorney. However, "we must not, and do not, ‘lightly overrule’ our precedents, including those construing statutes." State v. Civil , 283 Or. App. 395, 416, 388 P.3d 1185 (2017). Instead, we will overrule a prior decision only if the decision is "plainly wrong," a standard that is "rigorous" and "satisfied only in exceptional circumstances." Id . at 417, 388 P.3d 1185. We start from the assumption that our prior cases were decided correctly, and the party urging us to abandon precedent must affirmatively persuade us to the contrary that a decision is plainly wrong. State v. Silver , 283 Or. App. 847, 852-53, 391 P.3d 962, rev. den. , 361 Or. 886, 403 P.3d 768 (2017).

Here, plaintiff makes reasonable arguments in favor of a different construction of ORCP 47 E. However, those arguments, at best, demonstrate that reasonable minds may differ as to whether our decision in Due-Donohue is correct. But they do not demonstrate affirmatively that a different interpretation is compelled by considerations that were overlooked in Due-Donohue or otherwise. Consequently, plaintiff's arguments fall short of persuading us that the decision is plainly wrong. See Civil , 283 Or. App. at 415, 388 P.3d 1185 ("Mere disagreement, however, is not—and cannot be—a sufficient justification for overruling precedent."). Under those circumstances, whether our decision in Due-Donohue represents a correct interpretation of ORCP 47 E is more appropriately a matter for ...