Minnie Thomas, Appellant V. Swedish Hospital, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
MINNIE THOMAS, ) No. 80918-1-I
)
Appellant, )
)
v. )
)
SWEDISH HOSPITAL, ) UNPUBLISHED OPINION
)
Respondent. )
)
VERELLEN, J. — Minnie Thomas challenges the trial court’s grant of
summary judgment in favor of Swedish Hospital and the court’s denial of her
request for an additional continuance of the summary judgment hearing.
Because the evidence presented on summary judgment failed to establish
genuine issues of material fact whether Swedish Hospital breached the standard
of care or how the alleged breach proximately caused Thomas any injury,
summary judgment was proper. And because the court granted Thomas a one-
month continuance to obtain evidence substantiating her medical malpractice
claims, the court did not abuse its broad discretion in denying Thomas an
additional continuance.
Therefore, we affirm.

No. 80918-1-I/2
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FACTS
On April 19, 2019, Minnie Thomas filed a complaint against Swedish
Hospital alleging medical malpractice. Thomas alleged that on July 25, 2016,
she was “wrongly discharged” from Swedish and that on April 19, 2016, Swedish
“refused [her] medical care.”1 Thomas also brought claims against Swedish for
civil rights violations, libel, slander, intentional infliction of emotional distress, and
invasion of privacy.
Shortly after Thomas filed her complaint, Swedish moved to dismiss
Thomas’s claims under CR 12(b)(6) for failure to state a claim on which relief
could be granted. The court granted the hospital’s motion in part and dismissed
all of Thomas’s claims “except for [her] medical malpractice claim[s] arising from
care received from Swedish on July 25, 2016, and April 19, 2016.”2
On September 13, 2019, Swedish moved for summary judgment on
Thomas’s medical malpractice claims. The summary judgment hearing was
scheduled for October 18. Thomas filed various requests to continue the
October 18 hearing.
At the October 18 hearing, the court granted a continuance of the
summary judgment hearing to November 21, 2019. In granting Thomas’s
continuance the court stated that Thomas assures Swedish “and the [c]ourt that
she will be able to file by November 18, 2019, an expert declaration setting forth
precisely how, on a more probable than not basis to a reasonable degree of
1 Clerk’s Papers (CP) at 2.
2 CP at 14-15.

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medical certainty, defendant’s actions [fell] below the applicable standard of care
and caused her harm.”3 The court expressly required Thomas to file an expert
witness declaration by November 18. On October 19, Thomas requested
another continuance to December 30, 2019. The court did not grant this
continuance.
On November 14, Thomas provided the court with a “disclosure of
possible primary witnesses.”4 The disclosure listed Dr. Arthur Hadley as a
“possible expert witness.”5 But Thomas did not identify any specific testimony Dr.
Hadley would offer and provided no declaration from any expert witness in
opposition to summary judgment.
On November 22, the trial court granted Swedish Hospital’s summary
judgment motion.
Thomas appeals.
ANALYSIS
I. Summary Judgment
Thomas argues that the trial court improperly granted summary judgment
in favor of Swedish because the court’s October 18 order requiring Thomas to
submit a declaration of her expert witness by November 18 was “unfair.”6
3 CP at 189 (emphasis omitted).
4 CP at 212-14.
5 CP at 212-13.
6 Appellant’s Br. at 21-22.

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We review an order granting summary judgment de novo.7 Summary
judgment is appropriate “only when no genuine issue exists as to any material
fact and the moving party is entitled to judgment as a matter of law.”8 A genuine
issue of material fact exists if the evidence is sufficient for a reasonable person to
return a verdict for the nonmoving party.9
In a medical malpractice case, a “defendant moving for summary
judgment can meet its initial burden by showing that the plaintiff lacks competent
expert testimony.”10 “The burden then shifts to the plaintiff to produce an affidavit
from a qualified expert witness that alleges specific facts establishing [the] cause
of action.”11 Specifically, the plaintiff “must show that ‘[t]he health care provider
failed to exercise the degree of care, skill, and learning expected of a reasonably
prudent health care provider . . . in the same or similar circumstances.’”12
Here, on September 13, 2019, Swedish Hospital filed a summary
judgment motion arguing that Thomas “has not, and cannot, produce the
requisite testimony of an expert witness who will testify that [the hospital’s]
medical providers failed to comply with the applicable standard of care and
proximately caused” her injury.13
7 Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).
8 Id. (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541
(2014)).
9 Reyes v. Yakima Health Dist., 191 Wn.2d 79, 86, 419 P.3d 819 (2018).
10 Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 25, 851 P.2d 689 (1993).
11 Id.
12 Reyes, 191 Wn.2d at 86 (quoting RCW 7.70.040(1)).
13 CP at 16.

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On November 14, Thomas filed a “disclosure of possible primary
witnesses” listing Dr. Hadley as her “possible expert witness.”14 But her
disclosure did not contain a declaration from Dr. Hadley establishing that
Swedish Hospital was in breach of the standard of care, or that Swedish
Hospital’s alleged breach proximately caused her any injury, or even describe
any opinions Dr. Hadley might offer.15
Because Thomas failed to present the court with an expert’s declaration
establishing the existence of a genuine issue of material fact, summary judgment
in favor of Swedish Hospital was proper.
II. Motion for a Continuance
Thomas contends that the trial court “erred . . . by ignoring [Thomas’s]
repeated request for additional time after November 18, 2019, to disclose [her]
expert witness.”16
We review a trial court’s denial of a motion for a continuance for an abuse
of discretion.17 A court abuses its discretion when its decision is based on
untenable grounds or untenable reasons.18
14 CP at 212-14.
15 Thomas also argues that the court erred in granting Swedish Hospital’s
summary judgment motion because the case setting schedule only required her
to submit a “disclosure of possible primary witnesses” by November 18, 2019,
and did not mention that she was also required to submit an expert’s declaration
by that date. But because Thomas provides no authority supporting her
assertion that declarations required by the trial court must appear on the case
setting schedule, her argument is not compelling.
16 Appellant’s Br. at 17.
17 Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994).
18 Andren v. Dake, 14 Wn. App. 2d 296, 305-06, 472 P.3d 1013 (2020).

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CR 56(f) governs continuances to obtain additional evidence in response
to a summary judgment motion and provides:
Should it appear from the affidavits of a party opposing the motion
that, for reasons stated, the party cannot present by affidavit facts
essential to justify the party’s opposition, the court may refuse the
application for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery to
be had or may make such other order as is just.
But the trial court can deny a motion for a continuance if “(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.”19
Here, on September 27, 2019, Thomas filed a motion to continue the
October 18 summary judgment hearing alleging that her “limited resources”
made it difficult to retain an attorney and that she needed more time to obtain
“crucial information” to support her claims.20 On October 7, 2019, Thomas filed
another motion to continue arguing that she needed more time “based on the
‘deadline’ [set by the court to disclose] possible primary witnesses.”21
At the October 18 hearing, the court granted Thomas a one-month
continuance to file an expert declaration and postponed the hearing to November
21. The court’s written order stated that Thomas’s contention “that a medical
expert will opine that [Swedish Hospital’s] actions [fell] below the applicable
19 Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989).
20 CP at 25.
21 CP at 43.

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standard of care and caused her damage . . . met the requirements of CR 56(f) to
obtain a limited continuance.”22
A day after the court granted Thomas a one-month continuance, Thomas
filed a declaration requesting an additional continuance to December 30, 2019,
stating the additional continuance was “necessary for [her] to obtain an expert
witness.”23 But the court already granted Thomas a one-month continuance for
additional time to obtain a declaration from an expert witness. Because Thomas
failed to provide a “good reason” for her request, the trial court did not abuse its
broad discretion in denying Thomas an additional continuance.24
Therefore, we affirm.
WE CONCUR:
22 CP at 189.
23 CP at 259-60, 317.
24 Thomas contends that she was unable to file her expert’s declaration by
November 18, 2019, because Swedish Hospital was withholding her medical
records. But Thomas did not move to compel copies of her medical records until
November 20, 2019, two days after she was required to submit her expert’s
declaration. Because Thomas provided no “good reason” for her delay in
pursuing her medical records, the court did not abuse its discretion in denying
Thomas a continuance on this basis.