Harris v. Grizzle, No. 5328

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore ROSE; BROWN; McCLINTOCK
Citation625 P.2d 747
PartiesAndrew Lawrence HARRIS, the Personal Representative, Administrator, for the Deceased, Diane Geraldine Harris, Appellant (Plaintiff), v. Claude O. GRIZZLE; William F. Flick; Phillip M. Sharp; Memorial Hospital of Laramie County, Wyoming; William C. Nichols, in his official capacity as Administrator of Memorial Hospital of Laramie County, Wyoming; Harry P. Smith, F. Dean Stevens, John Pattno, Fred Baggs, and Carl Emerich, all in their official capacities as Members of the Board of Trustees of Memorial Hospital of Laramie County, Wyoming; and the Board of Trustees of Memorial Hospital of Laramie County, Wyoming, Appellees (Defendants).
Docket NumberNo. 5328
Decision Date20 March 1981

Page 747

625 P.2d 747
Andrew Lawrence HARRIS, the Personal Representative, Administrator, for the Deceased, Diane Geraldine Harris, Appellant (Plaintiff),
v.
Claude O. GRIZZLE; William F. Flick; Phillip M. Sharp; Memorial Hospital of Laramie County, Wyoming; William C. Nichols, in his official capacity as Administrator of Memorial Hospital of Laramie County, Wyoming; Harry P. Smith, F. Dean Stevens, John Pattno, Fred Baggs, and Carl Emerich, all in their official capacities as Members of the Board of Trustees of Memorial Hospital of Laramie County, Wyoming; and the Board of Trustees of Memorial Hospital of Laramie County, Wyoming, Appellees (Defendants).
No. 5328.
Supreme Court of Wyoming.
March 20, 1981.

Page 748

Barbara Beck, Cheyenne, signed the brief and appeared in oral argument on behalf of appellant.

Donald J. Sullivan, Fennell-Sullivan, Cheyenne, signed the brief of appellee Grizzle. Todd S. Welch, Godfrey & Sundahl, Cheyenne, and Joseph C. Jaudon, Long & Jaudon, P. C., Denver, Colo., signed the brief of appellee Flick. J. Kent Rutledge, Lathrop & Uchner, P. C., Cheyenne, signed the brief of appellee Sharp. G. Joseph Cardine, Casper, signed the brief of appellees Memorial Hospital and the Bd. of Trustees of Memorial Hospital.

Before ROSE, C. J. *, McCLINTOCK, RAPER ** and THOMAS, JJ., and BROWN, District Judge. ***

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 O. 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

Page 749

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 appellees' 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 appellees, 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

Page 750

and Procedure: Civil § 2739; 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.

Page 751

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...

To continue reading

Request your trial
47 practice notes
  • Moore v. Wyoming Medical Center, No. 92-CV-1037-B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • 1 Julio 1993
    ...fell below the required standard of care, and that the plaintiff failed to present any such testimony. See, e.g., Harris v. Grizzle, 625 P.2d 747, 752 This Court holds that the plaintiff has presented satisfactory expert testimony in the form of officer Art Washut, currently lieutenant with......
  • Wardell v. McMillan, Nos. 91-66
    • United States
    • United States State Supreme Court of Wyoming
    • 31 Diciembre 1992
    ...of our decision to reverse this case on other grounds. The doctors rely primarily upon a statement extracted from Harris v. Grizzle, 625 P.2d 747 (Wyo.1981), to support their contention that the due-care instruction accurately reflects Wyoming law. In Harris, the Court stated: "A physician ......
  • Cordova v. Gosar, No. 85-271
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Mayo 1986
    ...of County Commissioners of Fremont County v. Memorial Hospital of Natrona County, Wyo., 682 P.2d 334 (1984); Harris v. Grizzle, Wyo., 625 P.2d 747 Stage Five: legal issue disposition. Resolution in many cases is accommodated at this time by a determination that the issue between the parties......
  • Hoflund v. Airport Golf Club, No. 04-12
    • United States
    • United States State Supreme Court of Wyoming
    • 10 Febrero 2005
    ...748 P.2d 704, 710 (Wyo. 1987); Gennings v. First National Bank of Thermopolis, 654 P.2d 154, 156 (Wyo. 1982); and Harris v. Grizzle, 625 P.2d 747, 751 and 753-54 (Wyo. 1981). Therefore, we conclude that the district court was correct when it ruled that Hoflund's lawful termination by AGC co......
  • Request a trial to view additional results
47 cases
  • Moore v. Wyoming Medical Center, No. 92-CV-1037-B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • 1 Julio 1993
    ...fell below the required standard of care, and that the plaintiff failed to present any such testimony. See, e.g., Harris v. Grizzle, 625 P.2d 747, 752 This Court holds that the plaintiff has presented satisfactory expert testimony in the form of officer Art Washut, currently lieutenant with......
  • Wardell v. McMillan, Nos. 91-66
    • United States
    • United States State Supreme Court of Wyoming
    • 31 Diciembre 1992
    ...of our decision to reverse this case on other grounds. The doctors rely primarily upon a statement extracted from Harris v. Grizzle, 625 P.2d 747 (Wyo.1981), to support their contention that the due-care instruction accurately reflects Wyoming law. In Harris, the Court stated: "A physician ......
  • Cordova v. Gosar, No. 85-271
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Mayo 1986
    ...of County Commissioners of Fremont County v. Memorial Hospital of Natrona County, Wyo., 682 P.2d 334 (1984); Harris v. Grizzle, Wyo., 625 P.2d 747 Stage Five: legal issue disposition. Resolution in many cases is accommodated at this time by a determination that the issue between the parties......
  • Hoflund v. Airport Golf Club, No. 04-12
    • United States
    • United States State Supreme Court of Wyoming
    • 10 Febrero 2005
    ...748 P.2d 704, 710 (Wyo. 1987); Gennings v. First National Bank of Thermopolis, 654 P.2d 154, 156 (Wyo. 1982); and Harris v. Grizzle, 625 P.2d 747, 751 and 753-54 (Wyo. 1981). Therefore, we conclude that the district court was correct when it ruled that Hoflund's lawful termination by AGC co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT