Veronica Valdivia, Res. v. Dalynne Singleton, Admin. Of The Estate Of Elmer K. Turngren, Pets. ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
VERONICA VALDIVIA, an individual, )
) No. 74719-3-1
Respondent, )
) DIVISION ONE
v. )
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) UNPUBLISHED OPINION c=> or)c)
DALYNNE SINGLETON, Administrator )
of the ESTATE OF ELMER K. ) C)
TURNGREN, Deceased, and SALLY ) N.)
ANN TURNGREN, wife of Elmer K. ) ..r- 7,r- -W r—
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Turngren, Deceased, individually and ) 1-...„ r./)>f^11
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Appellants. ) FILED: April 24, 2017
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TRICKEY, A.C.J. — In this personal injury action, Elmer Turngren appeals a
trial court order granting partial summary judgment on the issue of damages in
favor of Veronica Valdivia. Because a genuine issue of material fact exists as to
the necessity of the care Valdivia received, we reverse and remand for trial.
FACTS
On January 8, 2014, Elmer Turngren' and Veronica Valdivia were involved
in an automobile collision. Following the collision, Valdivia experienced neck and
back pain, and sought treatment from several chiropractors.
On August 11, 2014, Valdivia sued Turngren, alleging that Turngren's
negligence caused the accident. Turngren admitted that he caused the collision
and was liable for injuries that Valdivia suffered as a result. However, Turngren
Elmer Turngren passed away in February 2016 and his estate has been substituted as
a party in this action. This court entered an order changing the case caption on November
16, 2016. See RAP 3.4. We use the surname Turngren to refer either to Elmer Turngren
or to his estate, as the context dictates.
No. 74719-3-1/2
disputed the extent to which Valdivia was injured in the collision and the necessity of
the treatment Valdivia sought.
Valdivia filed a motion for partial summary judgment seeking an order
finding that, as a matter of law, she was entitled to judgment against Turngren for
her medical expenses. In support of her motion, Valdivia submitted medical bills
totaling $8,700. Valdivia also submitted declarations from Dr. Trevor Nabholz and
Dr. Ryan Coogan outlining a diagnosis of her injuries and the treatment they
provided to her.
In response, Turngren submitted a declaration of Dr. Austin McMillin, who
examined Valdivia and reviewed her medical records pursuant to CR 35. Dr.
McMillin criticized the diagnosis made by Dr. Coogan and Dr. Nabholz and opined
that some of the care they provided was either unnecessary or inappropriate.
On February 8, 2016, the trial court granted partial summary judgment in
favor of Valdivia, and ordered that a jury would be instructed at trial that Valdivia
"has demonstrated an entitlement to judgment against Defendant Elmer Turngren
for past medical expenses in the amount of $8,700."2 Turngren appeals.
ANALYSIS
A motion for summary judgment may be granted when 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). In a motion for summary judgment, the moving party
bears the initial burden of showing that no material fact exists. Young v. Key
2 Clerk's Papers(CP) at 183.
2
No. 74719-3-1 / 3
Pharm., Inc., 112 Wash. 2d 216, 225, 770 P.2d 182(1989). The burden then moves
to the nonmoving party to "make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that party will bear the
burden of proof at trial." Young, 112 Wash. 2d at 225 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). "Questions
of fact may be determined as a matter of law 'when reasonable minds could reach
but one conclusion." Owen v. Burlington N. Santa Fe R.R. Co., 153 Wash. 2d 780,
788, 108 P.3d 1220 (2005)(quoting Hartley v. State, 103 Wash. 2d 768, 775, 698
P.2d 77 (1985)). We review a grant of summary judgment de novo, considering
the facts in the light most favorable to the nonmoving party. Keck v. Collins, 184
Wash. 2d 358, 370, 357 P.3d 1080(2015).
When the evidence concerning injuries and treatment is conflicting, it is for
the jury to resolve. Herriman v. May, 142 Wash. App. 226, 232-33, 174 P.3d 156
(2007). "An affidavit expressing an expert's opinion may be sufficient to create a
genuine issue of fact and thus preclude summary judgment." Bowers v. Marzano,
170 Wash. App. 498, 505, 290 P.3d 134(2012). "But in order to preclude summary
judgment, the expert's affidavit must amount to more than mere speculation or
conclusory statements." Bowers, 170 Wash. App. at 505.
Here, considering the facts in the light mostfavorable to Turngren,Turngren
has established a genuine issue of material fact as to the necessity or
appropriateness of the care Valdivia received. For example, Dr. McMillin disputed
Dr. Coogan's diagnosis of cervical "ligament laxity" upon which Dr. Coogan based
3
No. 74719-3-1 / 4
Valdivia's treatment.3 Dr. McMillin argued that this diagnosis was not supported
by clinical evidence. He noted that Valdivia's x-ray showed "postural distortions
leading to segmental rotational positioning abnormalities associated with
underlying regional scoliosis" and that "[t]hese positioning abnormalities prevent
an adequate templating analysis of the patient's cervical spine, which in turn
prevents a clinically reasonable diagnosis of cervical ligament laxity or instability."
According to Dr. McMillin, if Valdivia "was actually suffering from cervical
ligament laxity or instability at the time she received prone drop-table extension-
force adjustments and weighted cervical extension traction, which are contra-
indicated as related to the extension cervical ligament laxity injuries claimed to be
present by Dr. Coogan, her condition would likely have worsened with treatment."5
Dr. McMillin noted that Valdivia's recovery "in the days and weeks following the
initial presentation for care in January 2014[was]inconsistent with traumatic spinal
ligament laxity or instability, further indicating that ligament laxity was not present."
Dr. McMillin also argued that Dr. Nabholz and Dr. Coogan failed to
adequately review Valdivia's medical records, which showed "a significant
historical documentation of longstanding bilateral upper extremity pain and
paresthesia." According to Dr. McMillin, Valdivia's records showed evidence of
3 CP at 59.
4 CP at 133.
5 CP at 135.
6 CP at 135.
7 CP at 134.
4
No. 74719-3-1 /5
"vertebral body compression" as far back as 2008, suggesting that Valdivia's
symptoms were not caused entirely by the collision.'
Finally, Dr. McMillin challenged the appropriateness of the care provided by
Dr. Coogan and Dr. Nabholz. For example, Dr. McMillin stated that Dr. Nabholz
and Dr. Coogan provided care that"was almost exclusively passively oriented" but
that "active care" was more consistent with accepted chiropractic guidelines and
that "[m]uch of [Valdivia's] chiropractic care would likely have been rendered
unnecessary if her treating chiropractors or physicians had undertaken an
appropriate transition to active care."' Dr. McMillin also noted that Dr. Coogan
relied on an outdated version of relevant chiropractic guidelines and that Dr.
Nabholz charged Valdivia for unsupervised therapeutic exercise sessions despite
the fact that standards of practice require such sessions to be supervised.
Turngren presented evidence that at least some of the treatment Valdivia
received was unnecessary, unreasonable, or otherwise inappropriate. On the
basis of this evidence, a jury could have concluded that Valdivia was entitled to
less than the total amount of damages she sought. Weighing the competing
opinions of the doctors is a task for the jury. According, the trial court erred in
granting partial summary judgment in favor of Valdivia.
CP at 176.
9 CP at 133-34.
No. 74719-3-1/6
We reverse the trial court's order granting partial summary judgment and
remand for trial.
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WE CONCUR:
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