Fiedler v. Steger

• Citation: 713 P.2d 773
• Decision Date: 30 January 1986
• Docket Number: No. 85-185,85-185
• Parties: Elizabeth L. FIEDLER, Edwin G. Fiedler and Katherine Elizabeth Fiedler and Douglas Glenroy Fiedler, by and through their next friends Elizabeth L. Fiedler and Edwin G. Fiedler, Appellants (Plaintiffs), v. David J. STEGER, Appellee (Defendant).
• Court: United States State Supreme Court of Wyoming

Page 773

713 P.2d 773

Elizabeth L. FIEDLER, Edwin G. Fiedler and Katherine Elizabeth Fiedler and Douglas Glenroy Fiedler, by and through their next friends Elizabeth L. Fiedler and Edwin G. Fiedler, Appellants (Plaintiffs), v. David J. STEGER, Appellee (Defendant).

No. 85-185.

Supreme Court of Wyoming.

Jan. 30, 1986.

Edwin G. Fiedler, Laramie, pro se, appeared in oral argument; Cary R. Alburn III, Laramie, filed a brief (but was permitted to withdraw as counsel prior to oral argument), for appellants.

David E. Westling, Casper, appeared in oral argument; Ann Rochelle of Vlastos & Brooks, P.C., Casper, filed a brief, for appellee.

Before THOMAS, C.J., BROWN, CARDINE and URBIGKIT, JJ., and GUTHRIE, J., Retired.

URBIGKIT, Justice.

Appellant Elizabeth Fiedler, seven and one-half months pregnant, who was in fact suffering from appendicitis, and without personal examination, was prescribed an antinausea medication over the telephone by appellee Dr. Steger. Her appendix eventually ruptured and was removed several weeks after she delivered her baby prematurely. In the resulting medical malpractice action against Dr. Steger for misdiagnosis, a motion for summary judgment was sustained, and we will now affirm.

Mrs. Fiedler telephoned her doctor's office on September 7, 1982, to complain of nausea and other symptoms. Dr. Steger was the physician on call; his associate in a medical practice was Mrs. Fiedler's regular doctor. By telephone, and without personal contact, Dr. Steger prescribed phenergan, an antinausea drug, for injection at the Riverton Memorial Hospital emergency room. After the injection, Mrs. Fiedler apparently felt better; she was not examined by Dr. Steger, nor were other arrangements made for her to be seen by any doctor.

Early in the morning of September 9, 1982, emergency room personnel at the hospital contacted Dr. Steger by telephone, since Mrs. Fiedler had then returned to the emergency room with similar complaints of nausea and other symptoms. Again, Dr. Steger prescribed phenergan over the telephone, and did not conduct any personal examination. Later that day, her regular doctor, Dr. Kent Stockton, ¹ examined her, determined that premature labor and delivery were imminent, and arranged transportation from Riverton, Wyoming, to the University of Utah Medical Center in Salt Lake City, Utah, where she delivered a premature baby. No diagnosis of appendicitis was made either by Dr. Stockton or the group of doctors participating in the delivery in Utah.

Mrs. Fiedler's pain continued after the delivery, when she returned to her home in Riverton. Later that month, exploratory surgery revealed that she had suffered a ruptured appendix which had consequently abscessed. Extensive treatment followed.

Mrs. Fiedler, her husband and their children filed this medical malpractice action against Dr. Steger, alleging misdiagnosis and failure to examine and properly treat. Steger filed a motion for summary judgment with supporting affidavits, and, by motion, Fiedler arranged for her expert to testify orally at the summary-judgment hearing.

The issue of the case, simply stated, is the propriety of the entry of summary judgment.

Summary judgment is properly 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. Rule 56(c), W.R.C.P.; Greaser v. Williams, Wyo., 703 P.2d 327 (1985); Rompf v. John Q. Hammons Hotels, Inc., Wyo., 685 P.2d 25 (1984); Matter of Estate of Brosius, Wyo., 683 P.2d 663 (1984).

A succinct and conclusive critique of the Wyoming summary-judgment law is afforded by the court in Garner v. Hickman, 709 P.2d 407 (1985):

"When reviewing a summary judgment on appeal, we review the judgment in the same light as the district court, using the same information. Randolph v. Gilpatrick Construction Company, Inc., Wyo., 702 P.2d 142 (1985); and Lane Company v. Busch Development, Inc., Wyo., 662 P.2d 419 (1983). A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact. Dudley v. East Ridge Development Company, Wyo., 694 P.2d 113 (1985). Material fact has been defined as one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Samuel Mares Post No. 8, American Legion, Department of Wyoming v. Board of County Commissioners of the County of Converse, Wyo., 697 P.2d 1040 (1985). Upon examination of a summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980)." 709 P.2d at 410.

See also Harden v. Gregory Motors, Wyo., 697 P.2d 283 (1985).

Fiedler argues that a material fact is at issue in this case by her claim that she told Dr. Steger over the telephone on September 7, 1982, that abdominal pain accompanied her nausea. As an evidentiary conflict, Steger's personal affidavit indicates that he did not recall the patient's complaint of lower abdominal pain. This affidavit conflict does create a factual dispute.

The finite question for this court is whether the conflict as to what the patient told the doctor is sufficient to create a material fact issue rendering an order granting summary judgment improper. We will review the evidentiary conflict in determining whether there is a material fact question so that Steger would meet his burden of showing "an absence of genuine issues of material fact." Metzger v. Kalke, 709 P.2d 414, 420 (1985); Timmons v. Reed, Wyo., 569 P.2d 112 (1977); Wood v. Trenchard, Wyo., 550 P.2d 490 (1976); Seay v. Vialpando, Wyo., 567 P.2d 285 (1977); Shrum v. Zeltwanger, Wyo., 559 P.2d 1384 (1977).

As this court has frequently stated, there are four essential elements in a medical-malpractice action. The plaintiff must prove (1) that there is a duty owed by the defendant to the plaintiff, (2) that the defendant failed to...