DeHerrera v. Memorial Hospital of Carbon County, No. 4996

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: ROONEY
• Citation: 590 P.2d 1342
• Docket Number: No. 4996
• Decision Date: 05 March 1979
• Parties: Juan L. DeHERRERA, as the Administrator of the Estate of Mary June Martinez, Deceased, on behalf of her heirs, Appellant (Plaintiff below), v. MEMORIAL HOSPITAL OF CARBON COUNTY and Fredrick B. Fishburn, Appellees (Defendants below), Arturo Archuleta and Jean Archuleta, d/b/a Art's Plumbing and Heating Service, Steve Archuleta, Donald Garcia, Leo Martinez, (Defendants below).

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590 P.2d 1342 Juan L. DeHERRERA, as the Administrator of the Estate of Mary June Martinez, Deceased, on behalf of her heirs, Appellant (Plaintiff below),
v.
MEMORIAL HOSPITAL OF CARBON COUNTY and Fredrick B. Fishburn, Appellees (Defendants below),
Arturo Archuleta and Jean Archuleta, d/b/a Art's Plumbing and Heating Service, Steve Archuleta, Donald Garcia, Leo Martinez, (Defendants below). No. 4996. Supreme Court of Wyoming. March 5, 1979.

Juan L. DeHerrera, Cheyenne, Philip Whynott, Cheyenne (argued), for appellant.

Weston W. Reeves, of Cardine, Vlastos & Reeves, Casper, for appellee, Memorial Hospital of Carbon County.

Frank D. Neville and Richard L. Williams (argued), of Wehrli & Williams, Casper, for appellee, Fredrick B. Fishburn.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice, delivered the opinion of the court.

Plaintiff, the administrator of the estate of Mary June Martinez, deceased, brought a wrongful death action in district court against defendants, Fredrick B. Fishburn (hereinafter "Fishburn") and Memorial Hospital of Carbon County (hereinafter "Hospital"), for damages resulting from their alleged malpractice. The district court granted a motion for summary judgment by defendants with a declaration that there was no just reason for delay in entering a final judgment. Plaintiff appeals, presenting several vaguely defined issues, but the general question is whether there was a genuine issue as to a material fact, the negative of which is required for a summary judgment. Since we find the existence of a material, genuine factual dispute herein, we reverse.

The decedent was brought to defendant Hospital's emergency room after receiving

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an automobile related injury. Defendant Fishburn was called to be the attending physician. In a rather rambling complaint, the plaintiff alleges several acts and failures to act on the part of Fishburn and the Hospital as constituting negligence. The same were denied in the answers of Fishburn and the Hospital. Discovery in the form of interrogatories was made by, and to, all three of the parties to this appeal.

Defendant Fishburn filed his motion for summary judgment on January 24, 1978. It was served on January 23, 1978. Defendant Hospital filed a similar motion on January 23, 1978, and it was served January 20, 1978. Neither motion was accompanied by supporting affidavits, but defendant Fishburn filed an affidavit made by himself in support of his motion on March 20, 1978, serving it on March 17, 1978. In it, he controverted negligence allegations of the complaint, specifically stating, among other things, that:

"11. It is my opinion that nothing more could have been done for Mary June Martinez while under my care, and that all of the actions which I took in treating Mary June Martinez were medically reasonable and adequate, and no further medical treatment could have been administered that would have saved her life."

Since the hearing on the motions for summary judgment was scheduled for March 31, 1978, the Fishburn affidavit was filed ten days prior to that date.

On the date of the hearing, plaintiff filed an affidavit (there was no certificate of service or indication of service, but it was apparently delivered to opposing counsel at the hearing). The affidavit was dated March 24, 1978, before a Fairfax, Virginia, Notary Public, and it was made by H. Barry Jacobs, who was indicated in the affidavit to be a practicing physician holding an M.D. degree and licensed to practice medicine in the state of Virginia. In it Jacobs stated, among other things, that defendant Fishburn "would have saved" Mary June Martinez's life if he would have taken certain specified medical actions, and in which he stated that proper therapy by defendant Fishburn "would have prevented the brain stem irreversible damage that occurred."

The two affidavits, then, presented an issue as to the proximate cause of death.

In its summary judgment, the district court found that defendant Fishburn's affidavit was timely filed, but that the Jacobs affidavit of plaintiff was not timely filed. The court found, in the alternative, that, even if the Jacobs affidavit were timely filed, it would not have presented competent evidence showing a genuine issue of a material fact because it lacked the necessary foundation to the effect that the affiant was familiar with the standard of care required of a general practitioner, or of a hospital, in the community of Rawlins or in a similar community (the locality rule).

The Jacobs affidavit was not timely served in accordance with the provision of Rule 56(c), W.R.C.P., which provides that the adverse party may serve opposing affidavits "prior to the day of the hearing." Plaintiff acknowledges that such was not timely served.

The answer to the question as to the timeliness of the affidavit of defendant Fishburn is more involved. Rule 56(a) and (b), W.R.C.P., provides that a party may "move with or without supporting affidavits" for a summary judgment. Rule 56(c) of the same rules directs that the determination of the existence or nonexistence of material facts be based on "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any." Standing alone, these rules would seem to require that the affidavits be submitted With the motion. This was not here done.

However, Rule 6(b), W.R.C.P., provides that (except for enumerated rules which do not include Rule 56):

"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

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enlarged If request therefor is made before the expiration of the period originally...