Harris v. Grizzle

625 P.2d 747, 1981 Wyo. LEXIS 308

• Court: Wyoming Supreme Court
• Decided: March 20, 1981
• Docket: 5328
• Status: Published

Opinions

BROWN, District Judge.

On May 22, 1975, Diane Harris, appellant’s decedent, was involved in an automobile accident in which she sustained severe brain damage resulting in her total paralysis.

Mrs. Harris was initially treated May 22, 1975, through September 29, 1975, at Memorial Hospital of Laramie County. She was readmitted to Memorial Hospital of Laramie County on May 17, 1976, for tests and examination, and released on June 12, 1976. She was cared for during her hospitalization by Doctors Grizzle and Sharp. On May 9, 1976, and July 23, 1976, Mrs. Harris was seen by Dr. Flick in the emergency room of appellee hospital, and examined and released without hospitalization. On August 1,1976, Diane Harris died at her home.

This action was instituted by appellant, Andrew Lawrence Harris, to recover from Doctors Claude 0. Grizzle, William F. Flick and Phillip M. Sharp, and Memorial Hospital of Laramie County, Wyoming (including its administrator and board of trustees in their respective official capacities). The appellant, Harris, claims damages from the hospital and physicians based upon their alleged negligent care, treatment, diagnosis, and examination of the decedent during her hospitalization and two visits to the emergency room.

On January 11,1980, appellee Sharp filed a motion for summary judgment. This was followed by similar motions by the other appellees.

Sharp’s motion was heard on January 22, 1980; the motions of all other appellees .were heard February 8, 1980. At the conclusion of the hearing on January 22, 1980, the court took under advisement Sharp’s motion for summary judgment.¹ At no time prior to the hearing on February 8, 1980, did appellant Harris serve affidavits or any other materials in opposition to the motions for summary judgment filed by the respective appellees. Subsequently, the court granted summary judgment for all appellees.

We will affirm.

During the hearing of the three appellees’ motions for summary judgment on February 8, 1980, appellant Harris proffered a memorandum brief, the affidavit of decedent’s mother, Virginia Rivera, and affidavits of Robert B. McFarland, M.D. Appellant relies on these affidavits, answers contained in his deposition, and on alleged factual disputes or issues contained in appel-lees’ own affidavits as raising a question of fact sufficient to avoid a summary judgment.

In appellant’s brief on appeal, he designates the following issues:

1. Do the husband’s sworn statements establish genuine issue of material fact?

2. If expert testimony is necessary, is it mandatory that it be filed one day before the summary judgment hearing?

3. Do the appellees establish a material issue of fact?

As background for our analysis of the issues, we note several basic rules of law applicable to medical malpractice actions. The gist of a malpractice action is negligence on the part of defendant. The mere fact of injury or the occurrence of a bad result, standing alone, is no proof of negligence in the ordinary malpractice action. The law does not require that for every injury there must be a recovery of damages, but only imposes liability for a breach of legal duty by a doctor proximately causing injury to the patient. Baylor v. Jacobson, 170 Mont. 234, 552 P.2d 55, 58 (1976).

FILING AFFIDAVITS IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Appellees were involved in different ways and at different times in the care and treatment of the deceased. It is not necessary to specify each appellee’s individual involvement in the care and treatment of the deceased since our determination of the issues raised on appeal applies to all appel-lees, regardless of such involvement.

The motions for a summary judgment filed by the respective appellees were accompanied by affidavits adequate for summary judgment purposes. When these motions were filed, appellant became obligated to offer competent evidence that would be admissible at trial showing that there were genuine issues of material fact. Rule 56(e), W.R.C.P.²; Wright & Miller, Federal Practice and Procedure: Civil § 2789; DeHerrera v. Memorial Hospital of Carbon County, Wyo., 590 P.2d 1342 (1979); Keller v. Anderson, Wyo., 554 P.2d 1253 (1976); Mealey v. City of Laramie, Wyo., 472 P.2d 787 (1970); Newton v. Misner, Wyo., 423 P.2d 648 (1967). Appellant failed to meet this burden.

The affidavits offered by appellant at the February 8, 1980, hearing were not timely offered and were, therefore, properly refused. Rule 56(c)³ and Rule 6(d)⁴, W.R.C.P., provide that opposing affidavits be served at least one day prior to the hearing on the motion for a summary judgment. DeHerrera v. Memorial Hospital of Carbon County, supra. Appellant failed to comply with these rules.

If opposing affidavits cannot be filed, the party opposing the motion for a summary judgment may file an affidavit pursuant to Rule 56(f), W.R.C.P.,⁵ setting forth the reasons why he cannot file an opposing affidavit. The party opposing a motion for a summary judgment may also or in the alternative file a motion pursuant to Rule 6(b), W.R.C.P.,⁶ requesting enlargement of the time in which to file the affidavits. A motion requesting enlargement provided for in Rule 6(b) must be filed before the expiration of the time originally prescribed (or extended by previous order). Appellant did not avail himself of the relief provided for in Rule 56(f) nor in Rule 6(b), W.R.C.P.

Rule 6(b), W.R.C.P., further provides that upon motion made after the originally prescribed or extended period, the court may permit the act to be done if excusable neglect is shown. Appellant made no showing of excusable neglect nor good cause for his failure to file the motion contemplated by this rule. Crossan v. Irrigation Development Corporation, Wyo., 598 P.2d 812 (1979). The trial court was justified in refusing to consider affidavits offered on the day of the hearing on the motions for summary judgment.

Appellant asserts that under Rule 56, W.R.C.P., the trial court has wide discretion in ordering or allowing further discovery. Appellant, in fact, appeals to the discretion of the lower court with respect to filing late affidavits. Ironically, at no time does appellant suggest that the trial court abused its discretion. We must assume, therefore, that appellant concedes that the trial court did not abuse its discretion. This concession, standing alone, is dispositive of the issue raised on appeal. Further, we find nothing in the record to suggest that the trial court abused its discretion.

In passing, we note that even had the affidavits of Dr. McFarland and the affidavit of Virginia Rivera been timely filed, they are insufficient as a matter-of law. Rule 56(e) requires that affidavits shall be made on personal knowledge and shall be based on competent evidence. Appellant’s proffered affidavits are but hearsay on hearsay: Dr. McFarland’s testimony was based upon what he heard from appellant’s attorney who was relating narration from the appellant. Mrs. Rivera’s testimony is hearsay. Furthermore, her affidavit fails to meet the Rule 56(e) requirement that it, “show affirmatively that the affiant is competent to testify to the matters stated therein.” Only an expert medical witness is competent to testify as to medical matters. Mrs. Rivera, not being a medical expert, is incompetent to testify as to these matters. See Keller v. Anderson, supra.

An examination of Dr. McFarland’s affidavits reveals that a modicum of foundation may have been admissible at trial in support of an opinion. The affidavits must, nevertheless, be rejected because it is impossible to tell which part of his opinion is based on competent evidence and which part is based on impermissible hearsay or suggestions from counsel.

The Kansas Supreme Court recently disallowed testimony which was not personally found by the testifying physician, stating as follows:

“In Mesecher v. Cropp, 213 Kan. 695, 701-2, 518 P.2d 504 (1974), an examining physician was allowed to testify about findings made in a report prepared by a neurosurgeon who was not at trial. The appellate court noted that those facts or data were not perceived by or personally known to him, nor were they made known to him at the hearing in any acceptable way. The court concluded that the testimony was inadmissible.” In the Interest of Marie Ann Watson, Kan.App., 615 P.2d 801, 803, 804 (1980).

EXPERT EVIDENCE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Having determined that the affidavits offered by appellant were properly refused by the trial court, it is now necessary to determine if the evidence contained in the appellant’s deposition and the affidavits of appel-lees was sufficient to establish an issue of material fact.

Appellant stated in his deposition that the deceased was not fed while in the hospital and that a gastrostomy tube was inserted incorrectly, causing a condition that led to the death of Mrs. Harris. Appellant further contends that some appellee expert witnesses stated that the cause of death was pneumonia, while other appellee expert witnesses specified a different cause of death. Appellant contends that statements in his deposition and the doctors’ different opinions in their affidavits as to the cause of death establish a question of fact sufficient to defeat appellees’ motions for summary judgment. Such an argument ignores, among other things, the fact that appellant has failed to establish a causal connection between appellees’ actions and decedent’s death.

We held in Keller v. Anderson, supra, that a showing of injury, the treatment provided, and the fact of the loss are insufficient to defeat a motion for summary judgment. In Keller there was no admissible medical testimony to show that the treatment was the cause of the plaintiff’s injury. We said,

“* * * The problem is not of a nature which lends itself to solving through nonprofessional inquiry. For all we know, the leg would have been lost no matter what kind of care the patient received. We cannot guess about such matters. We are not doctors.” Keller v. Anderson, supra, at 1261.

In order to defeat a motion for summary judgment in a medical malpractice action, a plaintiff:

“* * * has the obligation to establish (1) the accepted standard of medical care or practice, (2) that the doctor’s conduct departed from the standard, and (3) that his conduct was the legal cause of the injuries suffered.” Orcutt v. Miller, Nev., 595 P.2d 1191, 1193 (1979).

Appellant has wholly failed to establish these things by admissible medical testimony-

Appellant, in the present case, attempts to avoid the general rules of Keller and Orcutt by saying that the facts fit the exception set forth in Stundon v. Stadnik, Wyo., 469 P.2d 16 (1970). In that case we held,

“The basis for departing from the normal rule that a standard of care must be provided by expert medical testimony arises where asserted negligence consists of conduct so obviously wanting in reasonable medical skill and prudence that it may be so adjudged even by laymen.” Stundon v. Stadnik, id. at 22.

Appellant has misconceived the exception in Stundon. First, appellant fails to show that the present situation is one in which a layperson is competent to determine that the conduct is so wanting in reasonable medical skill and care that medical testimony is not needed. Second, appellant’s testimony in his deposition is not based on first-hand observation, nor does it show a lack of the requisite care or treatment. Third, even if this situation were one in which a layperson could testify, the appellant fails to draw the requisite causal connection between the acts alleged and the death of Mrs. Harris.

One of appellant’s complaints is that the gastrostomy tube was incorrectly inserted. Expert testimony is necessary to support a complaint of this type. Appellant, as a layperson without any special training in the areas complained of, is not competent to show that conduct by appellees in regard to the insertion of gastrostomy tubes, in the scheduling of feeding or other treatment and care is so wanting in reasonable medical skill that no expert testimony is needed.

The Supreme Court of Nevada in Bialer v. St. Mary's Hospital, 83 Nev. 241, 427 P.2d 957 (1967), stated that expert testimony is necessary when injections are administered by a nurse:

“ * * * Further, it cannot be said that the full spectrum of possible consequences from the giving of a shot are within the layman’s common knowledge. At least a minimum showing by expert testimony is required that some variance from the recognized standard of care proximately caused the injury. [Citation.]

“Unforeseen and undesirable reactions from an injection can result from a number of causes other than negligence; for example, the emotions and allergies of the patient, the manner in which the injection was given (though not amounting to negligence), the internal condition of the patient before or after an operation, and perhaps others.” Bialer v. St. Mary’s Hospital, id. at 958-959.

The rule in Bialer requiring expert testimony is applicable to the case at hand. Expert testimony is necessary to establish that the gastrostomy tube was inserted incorrectly.

It is well settled that in all but the extraordinary medical malpractice case, the plaintiff has the burden of producing expert testimony to support a prima facie case of negligence. If the origin of the injury is obscure and not readily apparent to a layman, or if there are several equally probable causes of the condition, testimony of a qualified physician is essential to establish a reasonable probability that the physician’s negligence caused the injury. This is such a case.

Appellant’s deposition is not competent to show that the insertion of the gastrostomy tube was done incorrectly. The only competent evidence before the court, based upon personal knowledge, is found in the affidavits of Doctors Sharp, Grizzle, Flick, and Hunton. Doctors Sharp and Grizzle cared for, treated and observed plaintiff’s decedent during her hospitalization from May 17, 1976, to June 12, 1976. Dr. Sharp stated that for this period, the treatment and attendance of plaintiff’s decedent was performed with that degree of care, skill and learning ordinarily possessed and exercised by hospitals throughout the United States.

Dr. Hunton stated that the nutrition prescribed for plaintiff’s decedent was proper, and her management, care and treatment met or exceeded the standard of care and skill ordinarily exercised by hospitals in these circumstances.

Doctors Sharp, Grizzle and Flick personally observed the decedent during the period involved. Their sworn statements are the only competent evidence before the court concerning the gastrostomy tube and indicate that it was properly inserted. The evidence is undisputed and must be accepted.

A physician or surgeon is presumed to have carefully and skillfully treated or operated upon a patient. Moreover, there can be no presumption of negligence from the mere fact of an injury or adverse result. Expert testimony is ordinarily required to establish negligence or a lack of reasonable care on the part of a physician in his performance of surgical procedures and in the care and treatment of his patients. Crowley v. O’Neil, 4 Kan.App.2d 491, 609 P.2d 198, 201, 202 (1980).

The answers in Mr. Harris’ deposition are not based on personal observation or knowledge and are inadmissible to show the care received by decedent or the cause of her physical condition. Mr. Harris’ statements regarding the nurses’ failure to feed his wife are based on other people’s comments to him and are inadmissible as hearsay. Mr. Harris’ deposition also fails to contain a first-hand recounting of any improper insertion of the gastrostomy tube.

PROXIMATE CAUSE

The law of proximate cause in malpractice. cases is clear. Malpractice is a form of negligence. Before a physician may be held liable for malpractice, it must be shown that he departed from recognized standards of medical practice. In addition, that departure must be the proximate cause of the incident or occurrence which is the subject of the litigation. Schrib v. Seidenberg, 80 N.M. 573, 458 P.2d 825, 826 (1969).

In an action for malpractice, the plaintiff must establish that an act or omission by a physician has breached a standard of care and that the breach was the cause, both in fact and proximately, of the damage suffered by the patient. Keogan v. Holy Family Hospital, 22 Wash.App. 366, 589 P.2d 310, 313 (1979).

Appellant failed to prove that the proximate cause of deceased’s death was the negligence of appellees. In Keller v. Anderson, supra, we held that it is not sufficient to point to bad results as providing the causal link. In Keller we said that expert opinion is necessary to draw the causal link. In the present case, appellant has failed to provide the causal link by expert testimony.

On the other hand, it affirmatively appears from the evidence of defendants that the death of plaintiff’s decedent on August 1, 1976, was not caused by appellees’ negligence. Both Doctors Flick and Hunton stated that whatever the cause of decedent’s death, it was not caused by her hospitalization and treatment more than seven weeks earlier. This is the only evidence properly before the court dealing with cause. It is not controverted and, therefore, is determinative of the issue.

CONCLUSION

It has long been recognized in medical malpractice actions that the physician or surgeon is presumed to have carefully and skillfully treated or operated on his patient, and there is no presumption of negligence from the fact of an injury or adverse result. In malpractice cases, expert medical testimony is ordinarily required to establish negligence or lack of reasonable care on the part of a physician or surgeon in his medical diagnosis, his performance of surgical procedures, and his care and treatment of patients.

In our opinion the treatment administered to the patient was a procedure so complicated as to lie beyond the realm of common knowledge and experience of laymen. The testimony of experts is therefore necessary to establish that decedent’s death was caused by the negligence of appellees.

The doctors’ depositions in this case state that Mrs. Harris received at least adequate treatment by the appellees. All that is offered to refute this expert testimony is unsubstantiated opinions that the doctors did not heed Mrs. Harris’ complaints, and were indifferent in their treatment. Thus, the conflict, if any, lies between the interpretation of the doctors and the interpretations of laymen.

The burden of establishing negligence must be met both at trial and in opposition to appellees’ motions for summary judgment. A party opposing a motion for summary judgment must show that evidence is available which would justify a trial of that issue. In this case, appellant did not come forward with evidence which would justify a trial on the issue of negligence.

As to the complaint that there were various deficiencies in hospital care and equipment while the decedent was in the hospital, there is no admissible medical testimony to link the cause of death to the insufficien-cies. The affidavits offered by appellant on the day of the second hearing were properly refused. Therefore, it follows that summary judgment was properly granted.

Affirmed.

1 . Appellant asserts that at the conclusion of this hearing the trial judge continued the hearing. For the purpose of the issues raised in this case, it is immaterial whether the trial judge took the motion for summary judgment under advisement or continued the hearing.

2 . Rule 56, Wyoming Rules of Civil Procedure, entitled “Summary Judgment,” subsection (e) is as follows:

“(e) Form of affidavits; further testimony; defense required. — Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond summary judgment, if appropriate, shall be entered against him.”

3 . Rule 56, Wyoming Rules of Civil Procedure, entitled “Summary Judgment,” subsection (c) reads in part as follows: “* * * The adverse party prior to the day of hearing may serve opposing affidavits. * * *”

4 . Rule 6, Wyoming Rules of Civil Procedure, entitled “Time,” subsection (d) reads in part as follows:

“ * * * [A]nd, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.”

5 . Rule 56, Wyoming Rules of Civil Procedure, entitled “Summary Judgment,” subsection (f) is as follows:

“(f) When affidavits are unavailable. —Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his 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.”

6 .Rule 6, Wyoming Rules of Civil Procedure, entitled “Time,” subsection (b) reads in part as follows:

“(b) Enlargement. — When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court, or a commissioner thereof, for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; * *