Opinion Information Sheet

			

                                                                  FILED

                                                              MAR 08, 2012

                                                       In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARY BRYSON BAECHLER,                                     No.  29476-5-III
individually and doing business as              )
MAGPIE FARM,                                    )
                                                )
                             Appellant,         )
                                                )         Division Three 
         v                                      )
                                                )
MICHELLE BEAUNAUX, DVM;                         )
MAPLEWAY VETERINARY CLINIC;                     )
T.C. "TONY" SMITH, DVM; and                     )
DOES 1-100,                                     )
                                                )         PUBLISHED OPINION
                             Respondents.       )
                                                )

       Sweeney, J.  --  This appeal follows the summary dismissal of Mary Bryson 

Baechler's suit against two veterinarians.  Both recommended against further treatment 

for her horse and that the animal be euthanized. Ms. Baechler claimed this was 

malpractice and that their conduct satisfied a number of other causes of action.  Ms. 

Baechler moved to continue arguments on the defendants' motion for summary judgment

to depose the veterinarians.  The court concluded that no useful information would be 

gained, refused to continue argument on the motion, and ultimately dismissed her suit.   

No. 29476-5-III
Baechler v. Beaunaux

We conclude that the court was well within its discretionary authority to deny her motion 

to continue the hearing.  And we conclude that the court properly granted summary 

judgment because Ms. Baechler failed to show that any loss was proximately caused by 

the veterinarians.  

                                            FACTS

       Ms. Baechler breeds horses at her farm in Yakima, Washington. One of her mares

became ill.  She called Dr. Tony Smith. He came to the farm, examined the horse, and 

diagnosed the ailment as "spastic" or "spasmodic" colic, a common type of colic.  Dr. 

Smith sedated the horse and said that the horse should be fine.  The horse woke up about 

a half hour later but still showed signs of illness.  Dr. Smith again evaluated the horse and 

this time concluded that it should be euthanized.  

       Ms. Baechler asked Dr. Smith if there were other treatment options.  She asked if 

pain medication would make it possible for her to take the horse to Washington State 

University for evaluation and treatment.  Dr. Smith responded that she would not be able 

to get the horse into a trailer and the horse would not make it to the hospital.  Ms. 

Baechler eventually said that she understood the horse's condition was fatal.  Dr. Smith 

got some euthanasia drugs from his truck, but Ms. Baechler stopped him from 

administering the drugs.  She said that she needed time to weigh her options.  They called 

the owner of Mapleway Veterinary Clinic, Dr. Michelle Beaunaux.  Dr. Smith worked for 

that veterinary clinic.  Dr. Beaunaux agreed 

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Baechler v. Beaunaux

with Dr. Smith's diagnosis.  She said that they would leave the euthanasia drugs with Ms. 

Baechler so that the horse could have another hour.  Dr. Smith injected the horse with 

pain medicine and left the euthanasia drugs with Ms. Baechler.  Ms. Baechler euthanized 

the animal about an hour later. 

       Ms. Baechler sued for damages and claimed malpractice, outrage, negligent 

infliction of emotional distress, and violation of the Washington State Consumer 

Protection Act, chapter 19.86 RCW.  Drs. Smith and Beaunaux moved for summary 

dismissal. Ms. Baechler moved to continue argument to depose Drs. Smith and 

Beaunaux.  But the record here on appeal does not include a motion for continuance or an 

affidavit in support of any such motion.  

       Ms. Baechler did respond to the summary judgment motion with a declaration of 

Dr. Emily Briggs. She practices veterinary medicine in Oregon.  Dr. Briggs explained the 

generally accepted procedure for treating colic and specifically how she would have 

treated the horse.  She did not offer an opinion on Dr. Smith's treatment. Ms. Baechler

also submitted evidence of the complaint she filed against Dr. Smith with the Department 

of Health Veterinary Board of Governors, including a Statement of Allegations and 

Summary of Evidence issued by the board.  The statement alleges that Dr. Smith acted 

unprofessionally by leaving euthanasia drugs for Ms. Baechler to administer.  The record 

does not include what, if any, disciplinary action the board took.

       The judge refused to continue the 

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hearing because he did not "believe that the depositions of Dr. Smith and Dr. Beaunaux 

are going to develop information that's relevant to the issues that I'm going to be 

addressing today."  Report of Proceedings at 34.  The court then concluded that Ms. 

Baechler had failed to show a causal relationship between the horse's death and any 

malpractice.  

                                        DISCUSSION

       I.     Motion for Continuance

       Ms. Baechler contends that the court erred in denying her motion to continue.  She 

asserts that further discovery would have given her the opportunity to develop evidence to 

support her claims of outrage and Consumer Protection Act violations.  We review a 

court's refusal to continue argument for abuse of discretion.  Colwell v. Holy Family 

Hosp., 104 Wn. App. 606, 615, 15 P.3d 210 (2001).  Ms. Baechler was entitled to a 

continuance on a showing that

       [s]he cannot, for reasons stated, present by affidavit facts essential to justify 
       [her] opposition, [but] 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.  

CR 56(f).  A court can refuse to continue the proceedings for a number of reasons:

           (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, 

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775 P.2d 474 (1989) (emphasis added).  

       It is difficult to conclude that the judge abused his discretion on the record here.  

Ms. Baechler never filed an affidavit stating that she needed more time to gather facts to 

oppose the summary judgment motion.  And, more importantly, she did not tell the trial 

judge nor does she tell us what evidence she expected to develop with additional 

discovery or how or why it would help.  We are then unable to conclude that the judge 

abused his discretion by denying her motion.

       II.    Veterinary Malpractice

       Ms. Baechler argues that her veterinary malpractice claim should not have been 

dismissed because there were issues of material fact that needed to be resolved.  Drs. 

Smith and Beaunaux maintain that Ms. Baechler failed to make any showing of any 

breach of their standard of care that proximately resulted in the horse's death. Whether 

the trial court appropriately granted summary judgment is a question of law that we will

review de novo.  Troxell v. Rainier Pub. Sch. Dist. No. 307, 154 Wn.2d 345, 350, 111 

P.3d 1173 (2005).  

       We consider the same evidence that the trial court considered on summary 

judgment.  Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). We read the 

facts and all reasonable inferences from those facts in the light most favorable to the 

nonmoving party.  Id.  If the pleadings, affidavits, depositions, and admissions fail to 

show a genuine issue of material fact, the 

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moving party is entitled to judgment as a matter of law.  Id.  

       Doctors of Veterinary Medicine are professionals who, like other professionals, 

must be properly schooled, pass an examination, and then be licensed.  RCW 18.92.035

("The board shall certify to the secretary the names of all applicants who have 

successfully passed an examination and are entitled to a license to practice veterinary 

medicine, surgery and dentistry.  The secretary shall thereupon issue a license to practice 

veterinary medicine, surgery and dentistry to such applicant.");  RCW 18.92.070 (stating 

that a person applying to take the examination must show "by official transcripts or other 

evidence of graduation from a veterinary college satisfactory to and approved by the 

board").  Veterinary science is a profession, the practice of which includes prescribing or 

administering drugs and treatments.  RCW 18.92.010.  It also includes performing 

operations and manipulating or applying apparatuses or appliances to cure, lessen or 

correct animal disease or injury.  RCW 18.92.010. In short, veterinarians practice a 

profession that requires extensive scientific training, clinical experience, and a license 

from the state before they can practice. Their opinions and the opinions at issue here 

(diagnosis of disease and its proper management) are then expert opinions and necessarily 

only subject to criticism by other veterinarians. 

       Other states require expert testimony to establish the elements of a veterinary 

malpractice claim.  The Montana Supreme Court concluded that "expert testimony is 

necessary to establish the applicable 

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Baechler v. Beaunaux

standard of care in an action against a veterinarian which arises from the veterinarian's 

professional capacity" because "[m]atters concerning the standard of care owed by a 

veterinarian . . . are outside the common experience and knowledge of lay jurors."  

Zimmerman v. Robertson, 259 Mont. 105, 108, 854 P.2d 338 (1993).  Similarly, a 

California court analogized veterinary malpractice to medical malpractice and thus 

required an expert to establish the standard of care in a veterinary malpractice case.  

Williamson v. Prida, 75 Cal. App. 4th 1417, 1425, 89 Cal. Rptr. 2d 868 (1999).  Indeed,

       [t]he gravamen of [a veterinary malpractice] action is that in providing 
       veterinary care, the veterinarian failed to use such reasonable skill, 
       diligence, and attention as might ordinarily have been expected of careful, 
       skillful, and trustworthy persons in the profession. The courts have 
       generally recognized that for the owner of an animal to prevail in such an 
       action, he or she must prove the relevant recognized standard of care 
       exercised by other veterinarians, the defendant veterinarian's departure 
       from that standard when treating the animal, and some injury to the owner 
       proximately caused by that departure.

Cheryl M. Bailey, Annotation, Veterinarian's Liability for Malpractice, 71 A.L.R. 4th 

811, 816, § 2a (1989).

       We review the summary dismissal of a claim of professional negligence de novo.  

See Eakins v. Huber, 154 Wn. App. 592, 598, 225 P.3d 1041 (2010); Geer v. Tonnon, 

137 Wn. App. 838, 843, 155 P.3d 163 (2007).  To make out a prima facie case, the 

plaintiff must show the standard of care, a breach of that standard of care, and damages 

that proximately resulted from that breach.  Geer, 137 Wn. App. at 844. Summary 

dismissal is required absent a showing of 

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any of these requirements.   Eakins, 154 Wn. App. at 598.  This requires expert opinions.  

       Here there is no showing of any breach of the standard of care that contributed to 

the loss of this animal.  The only remote semblance of a professional opinion is the 

comments by the veterinary board.  And its only criticism was that Dr. Smith should not 

have allowed Ms. Baechler to administer the euthanasia drug.  There is no showing that 

his diagnosis or his recommended treatment (that the horse be put down) was wrong. The

trial court then correctly dismissed the suit here.  Ms. Baechler does not argue any other 

basis for her other causes of action (outrage, negligent infliction of emotional distress, 

Consumer Protection) and so they also were properly dismissed since she made no 

showing of professional malpractice.  

       We affirm the summary judgment in favor of Dr. Smith and Dr. Beaunaux and the 

order denying Ms. Baechler's motion to continue.  

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________
Kulik, C.J.

________________________________
Korsmo, J.

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