Unruh v. St. Charles Health Systems, Inc.

343

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

Argued and submitted October 27, 2022, reversed and remanded

February 23, 2023

Anabel UNRUH,

Plaintiff-Appellant,

v.

ST. CHARLES HEALTH SYSTEMS, INC.,

dba St. Charles Medical Center-Bend;

Cory Siebe; and Kevin Jones,

Defendants-Respondents,

and

Andrew CRAIG,

Defendant.

Deschutes County Circuit Court

19CV44604; A176440

Bethany P. Flint, Judge.

William J. Macke argued the cause and filed the briefs

for appellant.

Hillary A. Taylor argued the cause for respondents. Also

on the brief were Janet M. Schroer and Ruth A. Casby.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and

Jacquot, Judge.*

AOYAGI, P. J.

Reversed and remanded.

______________

* Jacquot, J., vice James, J. pro tempore.

344 Unruh v. St. Charles Health Systems, Inc.

AOYAGI, P. J.

Plaintiff was injured in a car accident on September

20. On September 20 and September 22, she sought treat-

ment from defendant doctors in the emergency depart-

ment of defendant medical center. Although plaintiff had

compression fractures in her cervical and thoracic spine,

defendant doctors did not discover them. It was not until

October 18 that a different provider discovered the fractures

and placed plaintiff in a cervical collar. Plaintiff brought

this action for medical negligence. The trial court granted

summary judgment for defendants on the causation element

of plaintiff’s claims. Plaintiff appeals the judgment dis-

missing her claims. She argues that the trial court erred

in granting summary judgment, because the ORCP 47 E

declaration that she submitted created a genuine issue of

material fact regarding causation. We conclude that the

court erred in ruling as it did on the basis that it did and,

accordingly, reverse and remand.

For the benefit of the parties and the trial court,

we describe our understanding of the particular posture

in which this case was litigated at summary judgment,

because it is significant to our resolution. As relevant here,

plaintiff alleged in the operative complaint that defen-

dants were negligent in failing to diagnose the compression

fractures in her spine and that, as a result of the four-week

delay in obtaining a correct diagnosis, her injuries were

exacerbated—particularly “when Plaintiff assisted in mov-

ing her belongings when she changed residences despite

experiencing significant pain and discomfort”—which

resulted in the need for “ongoing treatment related to per-

manent injuries in the form of worsening anterolisthesis,

stenosis and arthritic changes.”

Defendants moved for summary judgment on mul-

tiple bases, including causation, which was the only basis

on which it was granted. Defendants argued that they were

entitled to summary judgment on the causation element of

plaintiff’s claims because there was no evidence that the

delayed diagnosis altered plaintiff’s “medical treatment,

course of recovery or prognosis.” Defendants acknowledged

that, if the fractures had been diagnosed earlier, plaintiff

Nonprecedential Memo Op: 324 Or App 343 (2023) 345

“may have been put in a [cervical] collar sooner than she

was.” However, they pointed to uncontested evidence that

plaintiff refrained from all physical activity for several

months after the accident, as well as evidence from plain-

tiff’s treating physicians that plaintiff’s fractures were sta-

ble in nature and had remained stable and healed over time

precisely as one would expect. Regarding the cervical collar

in particular, the upshot of defendants’ argument was that,

because plaintiff was physically inactive during the four-

week period at issue, her fractures remained stable, such

that no harm was caused by her not wearing a cervical col-

lar, which, according to defendants, serves only to maintain

stability.

Plaintiff opposed defendants’ motion for summary

judgment, including submitting an ORCP 47 E declara-

tion in which plaintiff’s counsel attested that plaintiff had

“retained an unnamed qualified expert witness who is avail-

able to testify at trial based on admissible facts and opin-

ions sufficient to create a question of fact such that sum-

mary judgment is inapposite, consistent with ORCP 47E.”

Plaintiff argued that the declaration was sufficient to create

a genuine issue of fact on causation.

In their reply and at the summary judgment hear-

ing, defendants disagreed that the ORCP 47 E declaration

defeated summary judgment on causation. They main-

tained that the summary judgment record lacked the type

of predicate facts necessary for the ORCP 47 E declaration

to create a genuine issue of fact on causation. Plaintiff coun-

tered that the declaration created a genuine issue of fact, as

it was a matter for the experts whether the four-week delay

in placing plaintiff in a cervical collar resulted in a worse

medical outcome for her. Plaintiff asserted that her expert

would explain to the jury the purpose of the cervical collar

and how the four-week delay in placing her in a collar “con-

tributed to her ultimate outcome and how long it took her to

recover and the degree to which she has not recovered and

is still in pain.”

The trial court granted summary judgment for

defendants on the causation element of plaintiff’s claims. In

doing so, the court clearly accepted the parties’ framing of

346 Unruh v. St. Charles Health Systems, Inc.

the causation issue as turning on whether there was any

evidence that plaintiff’s medical treatment, course of recov-

ery, or prognosis were altered by the four-week delay in her

being diagnosed and placed in a cervical collar. Put another

way, the trial court did not understand plaintiff’s causation

theory to be based solely on her participation in a residen-

tial move during the four-week period, but rather accepted

and adopted the broader articulation of her causation theory

that was advanced by both parties in their summary judg-

ment briefing and at the hearing.1

With that understanding, the court granted sum-

mary judgment, explaining that there was no evidence that,

if plaintiff had been placed in a cervical collar earlier, her

injuries would have healed faster or better. As for the ORCP

47 E declaration, the court stated that there were “no facts

adduced on the record that * * * an expert could opine on

that would result in a different outcome based on the facts

established in the record at this time.”

The question before us is whether the court erred

in granting summary judgment for defendants, given the

ORCP 47 E declaration. We conclude that it did.

Summary judgment is to be granted when “the

pleadings, depositions, affidavits, declarations, and admis-

sions on file show that there is no genuine issue as to any

material fact and that the moving party is entitled to prevail

as a matter of law.” ORCP 47 C. The purpose of ORCP 47 E

is “ ‘to enable parties to avoid summary judgment on any

genuine issue of material fact which may or must be proved

1

Indeed, at the end of the summary judgment hearing, the trial court men-

tioned that it had a note to itself about plaintiff “moving boxes” and was won-

dering where that came from because no one had mentioned it at the hearing.

In response, plaintiff’s counsel identified that as “a factual allegation” in the

complaint, said that he could not remember whether there was any evidence in

the record on that point, and appeared to view it as not particularly relevant

to plaintiff’s causation theory. Defendants then pointed the court to evidence

that “actually refutes that allegation in the complaint,” showing that plaintiff

“didn’t help move” and “barely moved at all” in the relevant period. In doing so,

defendants never suggested that they understood plaintiff’s causation theory to

depend on her having moved boxes, nor did they argue that the lack of evidence

on that point alone entitled defendants to summary judgment. After hearing

both parties’ responses, the court stated that it was not sure why it had made the

note about plaintiff moving boxes and that it would “withdraw that question” and

“not consider that question further.”

Nonprecedential Memo Op: 324 Or App 343 (2023) 347

by expert evidence’ ” by declaring that they have such expert

testimony available. Hinchman v. UC Market, LLC, 270 Or

App 561, 570, 348 P3d 328 (2015) (quoting Moore v. Kaiser

Permanente, 91 Or App 262, 265, 754 P2d 615, rev den, 306

Or 661 (1988) (emphasis in Hinchman omitted)). “ORCP 47 C

requires that we view [an ORCP 47 E declaration], like all

parts of the record, in the light most favorable to [the non-

moving party].” Two Two v. Fujitec America, Inc., 355 Or

319, 331, 325 P3d 707 (2014).

Defendants argue on appeal that the trial court

properly granted summary judgment, because plaintiff’s

pleaded causation theory depended on her having physically

participated in a residential move during the four-week

period at issue, and there is no evidence in the summary

judgment record that she did so. The difficulty with that

argument is that it does not align with how defendants

framed the causation issue in their summary judgment

motion, how the parties mutually argued it, or how the court

ruled on it. Defendants’ argument on appeal is thus akin

to an alternative basis to affirm that was not raised below.

See Outdoor Media Dimensions Inc. v. State of Oregon, 331

Or 634, 659-60, 20 P3d 180 (2001) (stating requirements for

us to consider an alternative basis to affirm that was not

argued to trial court). However, if defendants had advocated

in the trial court for the strict reading of plaintiff’s pleaded

causation theory that they now put forward, plaintiff could

have argued for a broader reading or, alternatively, sought

leave to amend. See Eklof v. Steward, 360 Or 717, 736, 385

P3d 1074 (2016) (noting that the Outdoor Media Dimensions

Inc. requirement that the record must be materially the

same as would have developed had the prevailing party

raised the alternative basis for affirmance below “is of par-

ticular importance” in the summary judgment context,

where “the opposing party had no reason to adduce evidence

on an issue that was not raised in the summary judgment

motion”).

We therefore limit our review to the ruling that

was actually made, based on the motion that was actually

argued. Defendant moved for summary judgment based on

the lack of evidence that the four-week delay in correctly

diagnosing plaintiff and placing her in a cervical collar

348 Unruh v. St. Charles Health Systems, Inc.

altered plaintiff’s medical treatment, course of recovery, or

prognosis. In opposing the motion, plaintiff did not contest

that she was physically inactive during the four-week period

at issue, but she did submit an ORCP 47 E declaration.

Viewing the evidence in the light most favorable to plain-

tiff as the nonmoving party, we understand the ORCP 47 E

declaration to mean that plaintiff has retained an expert

who will testify that the four-week delay in placing her in a

cervical collar had a negative effect on her course of recov-

ery and prognosis, notwithstanding her physical inactivity

during that period. No predicate facts are necessary to such

an opinion, beyond the four-week delay itself, for purposes

of creating a triable issue. We therefore conclude that the

ORCP 47 E declaration created a genuine issue of fact as to

causation and that the trial court erred in granting sum-

mary judgment for defendants.

In reaching that conclusion, we express no opinion

on whether the trial court could have read the complaint

more narrowly and held plaintiff to a narrower theory of

causation for purposes of summary judgment—notwith-

standing how the parties framed the issue—except to note

that, had the court done so, plaintiff would have had an

opportunity to move to amend. We also note that nothing

in this decision precludes defendants from moving for sum-

mary judgment again and trying to hold plaintiff to her

pleaded causation theory as defendants now read it. Our

decision is limited to the summary judgment ruling before

us.

Reversed and remanded.