Guess v. Snyder
| Decision Date | 02 November 1979 |
| Docket Number | No. 78-480,78-480 |
| Citation | 378 So.2d 691 |
| Parties | Barbara R. GUESS, as Administratrix of the Estate of Bessie R. Strickland, Deceased v. Dr. A. F. SNYDER. |
| Court | Alabama Supreme Court |
James H. Weatherford, Jr., Enterprise, for appellant.
Charles A. Stakely, Jr. and Robert A. Huffaker, Montgomery, for appellee.
This is an appeal from an order granting the defendant doctor's motion for summary judgment in a medical malpractice suit. We affirm.
On December 13, 1977, Guess, as administratrix of the estate of Bessie Strickland, filed a medical malpractice action against Dr. A. F. Snyder and Dale County Hospital, alleging that the death of her intestate was proximately caused by the negligence of the defendants which allegedly occurred during the course of an esophagoscopy performed by Dr. Snyder. The hospital moved for and was granted summary judgment because of immunity from tort liability. The correctness of that judgment is not before us on this appeal.
On September 13, 1978, Dr. Snyder moved for summary judgment with supporting answers to interrogatories and a supporting affidavit from Dr. Connie Chandler. Oral argument on the motion was set for November 6, 1978. Plaintiff was granted a continuance until January 15, 1979, in order to obtain an opposing affidavit, the court in its order warning plaintiff that the motion would be granted unless the opposing affidavit was filed by January 15. On January 16, plaintiff moved for and was granted another extension of time to secure an affidavit by February 1. On February 9 plaintiff filed an affidavit from her attorney, attaching a letter from a Kentucky physician to the attorney as an exhibit. On February 22, the court set Snyder's motion for additional oral argument on March 2, and argument was heard on that date with the cause then submitted for a ruling thereon. On March 9, plaintiff filed an opposing affidavit from the Kentucky physician. On March 14, the trial judge granted defendant Snyder's motion for summary judgment based upon the material submitted as of March 2.
On this appeal, plaintiff contends that the material presented by defendant Dr. Snyder was insufficient to support a motion for summary judgment. Plaintiff's contention is that both Dr. Snyder, who answered the interrogatories, and Dr. Connie Chandler, who executed a supporting affidavit, have an interest in the case, or are biased, and therefore should be subject to cross examination at trial in order for the jury to determine what weight to give their testimony. We cannot agree.
Plaintiff's contention might have merit if plaintiff had supplied the court with a timely filed counter affidavit which raised a genuine issue as to a material fact. However, we consider that the trial court held that the affidavit supplied by plaintiff's attorney was insufficient under Rule 56(e), ARCP. Attached to the affidavit, was simply a letter from the Kentucky physician to the attorney with a "preliminary opinion" that Dr. Snyder had performed the operation negligently.
The trial court can consider only that material before it at the time of submission of the motion. Mathis v. Jim Skinner Ford, Inc., 361 So.2d 113 (Ala.1978); Engel Mortgage Co., Inc. v. Triple K Lumber Company, Inc., 56 Ala.App. 337, 321 So.2d 679 (1975).
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