Parker v. Haller

• Decision Date: 08 March 1988
• Docket Number: No. 87-169,87-169
• Citation: 751 P.2d 372
• Parties: Ralph A. PARKER, Appellant (Plaintiff), v. James G. HALLER, M.D., the Union Pacific Employees Hospital Association, an Oregon corporation, and Union Pacific Railroad Employees Health Systems, a Utah corporation, and John Doe, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 372

751 P.2d 372

Ralph A. PARKER, Appellant (Plaintiff), v. James G. HALLER, M.D., the Union Pacific Employees Hospital Association, an Oregon corporation, and Union Pacific Railroad Employees Health Systems, a Utah corporation, and John Doe, Appellees (Defendants).

No. 87-169.

Supreme Court of Wyoming.

March 8, 1988.

Rehearing Denied March 22, 1988.

Bernard E. Cole and Donald A. Cole, Cheyenne, for appellant (plaintiff).

William F. Downes and C. John Cotton of Brown & Drew, Casper, for appellee (defendant) James G. Haller, M.D.

Robert G. Pickering of Bailey, Pickering, Stock & Welch, Cheyenne, for appellees (defendants) Union Pacific Employees Hosp. Ass'n and Union Pacific R.R. Employees Health Systems.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

MACY, Justice.

This is an appeal from an order entered in a medical malpractice action granting appellees' motions for summary judgment. Although appellant sets forth several issues on appeal, the threshold question to be answered is whether there are genuine issues of material fact which would preclude the entry of summary judgment.

We affirm in part and reverse in part.

On April 30, 1984, plaintiff/appellant Ralph A. Parker, an employee of Union Pacific Railroad Company, went to the dispensary of defendant/appellee Union Pacific Railroad Employees Hospital Association (Hospital Association), which since has merged with defendant/appellee Union Pacific Railroad Employees Health Systems (Health Systems), seeking an examination of his wrist which he had injured while participating in an exhibition rugby game the previous day. A physician's assistant employed by Hospital Association, Ron Munroe (named in the complaint as defendant John Doe), conducted an examination of Mr. Parker's wrist, applied an ice pack to the wrist, and wrapped it with an ace bandage. He advised Mr. Parker to see a doctor if his condition did not improve and then noted in his records that Mr. Parker had a sprained left wrist.

During the following two days, the swelling in Mr. Parker's wrist decreased and the pain diminished. However, Mr. Parker did continue to experience pain in his wrist, and, on May 22, 1984, he saw defendant/appellee James G. Haller, M.D. Dr. Haller informed Mr. Parker that the bump which he had found on Mr. Parker's wrist was a ganglion caused by a rupture in the tendon walls, that very little could be done for the ganglion, and that it eventually would go away. Dr. Haller did not x-ray the wrist but did prescribe a wrist brace to reduce the pain by decreasing the motion of the wrist.

On July 27, 1984, during an appointment with Jean Halpern, M.D., concerning an unrelated matter, Mr. Parker asked the physician about the problem he continued to have with his wrist. Dr. Halpern examined the wrist and referred Mr. Parker to Thomas Gasser, M.D., an orthopedic surgeon.

On August 3, 1984, Dr. Gasser determined from viewing x-rays he had taken that Mr. Parker had fractured a small bone in his wrist. He advised Mr. Parker that he felt a problem might develop with the bone because, within the three-month period since the fracture of the wrist, a cyst formation had developed and there was a significant possibility that the bone would not heal properly. Mr. Parker was then fitted with a short arm cast to allow him to continue working.

Over the next several months, Mr. Parker's fractured wrist did not heal even though a bone growth stimulator and a long-arm cast were applied to his wrist. On February 12, 1985, Dr. Gasser grafted a piece of bone cut from Mr. Parker's hip into the area of the wrist fracture to obtain satisfactory healing. Mr. Parker continued to see Dr. Gasser at monthly intervals during which times x-rays were taken and various casts and splints were applied. Eventually, the fracture healed, the wrist splints were removed, and Mr. Parker was placed in physical therapy. By November 20, 1985, Mr. Parker's pain had diminished to a point where he experienced it only at the extremes of extension or flexion.

On April 25, 1986, Mr. Parker commenced a civil action to be tried before a jury alleging in substance that both Mr. Munroe, the physician's assistant employed by Health Systems, and Dr. Haller, retained by Health Systems as a medical doctor, negligently discharged their duties in the care and treatment of Mr. Parker's wrist, which caused Mr. Parker to incur an unnecessary loss of wages and medical expenses. The complaint also imputed the alleged negligence of Mr. Munroe and Dr. Haller to the Hospital Association.

After the complaint was answered ¹ and after a period of conducting discovery, Hospital Association, Health Systems, and Dr. Haller filed motions for summary judgment with supporting depositions and affidavits. Mr. Parker in turn filed depositions, affidavits, and documents in resistance to the motions. On April 20, 1987, the court heard oral arguments and on June 1, 1987, filed its order granting summary judgment to the defendants, ² finding that there were no triable issues as to any material fact for the reasons stated in the court's decision letter which was incorporated into the order. On June 3, 1987, Mr. Parker noticed this appeal.

This Court has the inherent power and duty on appeal to address a jurisdictional defect, even though it was not called to our attention by any litigant. Hayes v. State, Wyo., 599 P.2d 569 (1979).

Rule 17(d), W.R.C.P., provides:

"Suing person by fictitious name.--When the plaintiff is ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name and description, and when the true name is discovered the pleading or proceeding may be amended accordingly; and the plaintiff in such case must state in his complaint that he could not discover the true name, and the summons must contain the words, 'real name unknown', and a copy thereof must be served personally upon the defendant." (Emphasis added.)

The record clearly discloses that Mr. Munroe's name was not known when this action was commenced and that he was designated in the caption of the complaint as a defendant known as John Doe. The record also shows that he was not personally served with a copy of the summons as required by the above-quoted rule and that he did not appear in the action in any manner.

A judgment rendered without proper service when there is no appearance is a nullity and void. Pease Brothers, Inc. v. American Pipe & Supply Co., Wyo., 522 P.2d 996 (1974). We hold that the portion of the court's order dated June 1, 1987, purporting to grant summary judgment to Mr. Munroe as a defendant by the name of John Doe is null and void.

The negligence of an employee may be imputed to his employer even though the court does not have jurisdiction over the employee. Thurston Metals & Supply Company, Inc. v. Taylor, 230 Va. 475, 339 S.E.2d 538 (1986); 53 Am.Jur.2d, Master and Servant § 453 (1970). It, therefore, is necessary for this Court to address the issue of the alleged negligence of Mr. Munroe as it relates to his employer.

In Walters v. Michel, Wyo., 745 P.2d 913, 915 (1987), quoting from Fiedler v. Steger, Wyo., 713 P.2d 773, 774 (1986), we repeated our well-known standards of review on appeal governing questions of summary judgment:

" 'A succinct and conclusive critique of the Wyoming summary-judgment law is afforded by the court in Garner v. Hickman, [Wyo.,] 709 P.2d 407, 410 (1985):

' "When reviewing a summary judgment on appeal, we review the judgment in the same light as the district court, using the same information. A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact. 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. 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." ' (Citations omitted.)"

We also have noted that summary judgments are not favored in negligence actions, Randolph v. Gilpatrick Construction Company, Inc., Wyo., 702 P.2d 142 (1985), and that summary judgment must be viewed as a drastic remedy which deprives a litigant of the right to a trial and which ought to be utilized with caution and restraint. Kobielusz v. Wilson, Wyo., 701 P.2d 559 (1985). If there is a dispute over a material fact which leads to conflicting interpretations, if reasonable minds might differ and the fact is material for purposes of summary judgment, or if proof of that fact would effectively establish an essential element of the claim asserted or would refute an essential element of a defense, summary judgment is improper. Wyoming Game and Fish Commission v. Mills Company, Wyo., 701 P.2d 819 (1985).

In its decision letter, the trial court stated that:

"Although Dr. Haller may have misdiagnosed plaintiff's injury there is not sufficient evidence indicating that such diagnosis was below the standard of care or that it was the proximate cause of plaintiff's lengthy treatment."

In reaching that conclusion, the trial court relied upon the medical testimony of Dr. Gasser and Seymour Thickman, M.D., presented on behalf of Dr. Haller. Specifically, Dr. Gasser stated in his deposition that it was not below the standard of care to not take x-rays upon initially being presented with complaints similar to those of Mr. Parker and that he has known other orthopedic surgeons who have waited to take x-rays until the patient comes in for follow-up visits within a week or two. Dr. Thickman stated in his affidavit that Dr. Haller's decision to not obtain x-rays of Mr. Parker's wrist "was consistent with the standard of care, especially given the diagnosis of a ganglion cyst," and that there is much evidence to indicate that navicular fractures...