Greenwood v. Wierdsma
| Decision Date | 11 August 1987 |
| Docket Number | No. 87-11,87-11 |
| Parties | Betty GREENWOOD, Appellant (Plaintiff), v. J.G. WIERDSMA, M.D., and Memorial Hospital of Sweetwater County, Wyoming, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
F.M. Andrews, Jr. of Andrews and Anderson, P.C., Riverton, and Charles E. Hamilton of Hamilton Law Associates, P.C., Riverton, for appellant.
R.R. Bostwick and Roger E. Shumate of Murane & Bostwick, Casper, for appellee Wierdsma.
John C. Brooks of Vlastos, Brooks & Henley, P.C., Casper, for appellee Memorial Hosp. of Sweetwater County, Wyoming.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
This medical malpractice case presents three issues for review: (1) interpretation of the statute of limitations; (2) the propriety of the trial court's summary judgment for defendants, doctor and hospital; and (3) the hospital's claim of privilege from discovery access to the hospital credential committee's files and information. We reverse and remand.
Constituting only what was alleged, contended by affidavit, or portrayed by brief upon initial procedural summary-judgment disposition, and in no way determinative of what trial evidence may subsequently demonstrate, we are told that plaintiff Betty Greenwood (Greenwood) was an obstetric patient at Memorial Hospital of Sweetwater County, Wyoming, admitted on November 23, 1983 for imminent baby delivery, and where Dr. Wierdsma, her obstetrical physician, had hospital privileges. The day after her admission to the hospital, she gave birth to her child in the absence of the doctor, with only the obstetrical nurse to perform the delivery. In the course of delivery, the nurse manually tore her vagina and rectum. Nearly six hours after he had first been notified, and a quarter hour after the baby had been delivered, Dr. Wierdsma arrived at the hospital. At that time, ungowned and ungloved, he delivered the placenta and sutured Greenwood's torn vagina and rectum. Apparently from his failure to scrub or take other precautions against contamination, Mrs. Greenwood's wounds developed infection, including continuing injury in that the tear in the vagina into the rectal area was not properly closed and is now permanently infected. More than a simple bad-result medical-malpractice case is suggested by the appellant.
On November 18, 1985, Greenwood filed a civil damage complaint against Dr. Wierdsma and the hospital. She encountered difficulties in attempting to serve Dr. Wierdsma with the summons since he had moved to Durango, Colorado for a time, and then to Chowchilla, California, where personal service was finally made on February 27, 1986. In response, Dr. Wierdsma filed a motion for summary judgment on the ground that he had not been personally served within the two-year statute of limitations. The trial court granted him summary judgment, and plaintiff Greenwood appeals.
With regard to the hospital, Greenwood alleged that it failed to properly investigate, certify, or review Dr. Wierdsma's surgical skills and the procedure he performed on her; and further, that the hospital In the course of discovery on this claim, Greenwood served numerous interrogatories seeking the records of Dr. Wierdsma's hospital privileges and all medical staff committee records touching on his accreditation. The hospital objected on the ground of statutory privilege pursuant to § 35-2-602, W.S.1977.
negligently permitted Dr. Wierdsma to perform such surgical procedures. 1
The hospital moved for summary judgment, and filed supporting affidavits by a nurse, Ms. Judith Cavanah, and a hospital administrator, Mr. John M. Ferry. Ms. Cavanah's affidavit stated that, in her opinion, the hospital's nursing staff was not negligent. Mr. Ferry's affidavit stated that, in his opinion, the hospital was also not negligent. Neither of the affidavits was supported by any records or facts to underlie the conclusions given. Greenwood moved to strike the two affidavits on the ground that the affidavits did not conform to Rule 56(e), W.R.C.P. which requires the affiant to state facts within personal knowledge and that documents in support of those facts must be attached.
The district court denied plaintiff's motion to strike the affidavits, and denied her motion to compel production of the hospital records, thus, in effect, precluding her from opposing the affidavits by factual information except by her and her father's historical observations, and then granted the hospital's motion for summary judgment. The summary judgment was based on the challenged affidavits which then were unopposed. As a result, Greenwood was out of court on the statute of limitations and denial of discovery defenses.
We are presented with three issues:
I. The effect of Dr. Wierdsma's absence from Wyoming on the statute of limitations.
II. Contended district court error by relying upon rather than sustaining a motion to strike the affidavits of Cavanah and Ferry which supported the hospital's summary-judgment motion.
III. Scope of the discovery privilege provided in § 35-2-602, W.S.1977 for records and data relating to a physician's accreditation and hospital activities.
The medical malpractice statute of limitations provides in relevant part:
"(a) A cause of action arising from an act, error or omission in the rendering of licensed or certified professional or health care services shall be brought * * *
"(i) Within two (2) years of the alleged act, error or omission * * *." Section 1-3-107, W.S.1977.
The general statute supplements this provision:
"If a cause of action accrues against a person when he is out of the state, or has Neither statute presents any ambiguity as applied in this case, and it is not necessary to go further than the clear language to decide the issue. After the cause of action accrued, Dr. Wierdsma departed from the state of Wyoming, and then, as the statute plainly states, during his absence, the statute was tolled.
absconded or concealed himself, the period limited for the commencement of the action does not begin to run until he comes into the state or while he is so absconded or concealed. If after the cause of action accrues he departs from the state or absconds or conceals himself, the time of his absence or concealment is not computed as part of the period within which the action shall be brought." Section 1-3-116, W.S.1977.
In response, Dr. Wierdsma argues that the tolling provision is altered by the Wyoming long-arm statute, § 5-1-107, W.S.1977:
This statute, taken from California, was obviously intended to provide the widest possible jurisdiction within the constraints of the United States Constitution and decisions of the United States Supreme Court. Dr. Wierdsma correctly points out that the long-arm statute extends to Wyoming courts in-personam jurisdiction over certain classes of nonresident defendants, but then conjecturally contends that because the long-arm statute allows service of process outside the state, the statute of limitations could not have been tolled merely by his absence.
We observe that generally a person can only be served when and where he can be found, and this reality is not changed by the Wyoming long-arm statute. The policy behind the tolling provision in the statute of limitations is not rescinded by the existence of the long-arm statute, since only if Greenwood had known where to find Dr. Wierdsma, would the long-arm statute operate to permit effective service. 2
Dr. Wierdsma relies heavily on the case of Summerrise v. Stephens, 75 Wash.2d 808, 454 P.2d 224 (1969). In that case the issue was whether the statute of limitations was tolled by the defendant's absence from the state during a period when the plaintiff was aware of the claimed tortfeasor's place of residence and had available to him the right to proceed under the long-arm statute. The Summerrise court held that the statute was not tolled. However, this case is different. The record indicates that Greenwood was not aware of Dr. Wierdsma's place of residence. We do not disagree that she had the right to serve Dr. Wierdsma under the long-arm statute as she ultimately did, but the long-arm statute cannot come into play until the plaintiff has some knowledge of where the defendant can be found in order to provide effective service.
The trial court relied on Tarter v. Insco, Wyo., 550 P.2d 905 (1976) to support its refusal to toll the statute during Dr. Wierdsma's absence. We fail to see the applicability of the Tarter case. That case simply held that the tolling provision of the statute of limitations was not applicable when a statute allowed service upon a nonresident motorist to be accomplished by serving the Secretary of State. The case at bar does not involve alternative service of process upon an available designated agent for service which would defeat the purpose of the tolling provision. See Midway Oil Corporation v. Guess, Wyo., 714 P.2d 339 (1986).
In summary, Dr. Wierdsma was gone from Wyoming, and the statute of limitations was tolled in accord with its language.
Dr. Wierdsma claims that even though he was gone from the state of Wyoming, the plaintiff could have determined where he was residing by a more diligent search. In response, the plaintiff presented affidavits by her attorney and his legal assistant which detail their efforts to locate Dr. Wierdsma. Those affidavits indicate that plaintiff knew that Dr. Wierdsma was no longer in Rock Springs, either had been or still was located in Colorado, and may have gone to California. Nonetheless, the district court...
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