Vassos v. Roussalis

Citation625 P.2d 768
Decision Date25 March 1981
Docket NumberNo. 5394,5394
PartiesNora V. VASSOS, Administratrix and Personal Representative of the Estate of Gus Vassos, Appellant (Plaintiff), v. Louis J. ROUSSALIS, M.D. and John Corbett, M.D., Appellees (Defendants).
CourtUnited States State Supreme Court of Wyoming

Terry W. Mackey, Cheyenne, and John Hursh, Riverton, for appellant.

Joseph E. Vlastos, of Vlastos & Reeves, Casper, for appellee Louis J. Roussalis, M.D., and William S. Bon, of Schwartz, Bon & McCrary, Casper, for appellee John Corbett, M.D.

Before ROSE, C. J., and McCLINTOCK, RAPER, THOMAS and ROONEY, JJ.

ROONEY, Justice.

Appellant-plaintiff instituted an action for the wrongful death of Gus Vassos, alleging that the death was caused by the negligent diagnosis, care and treatment rendered by appellees-defendants (medical malpractice). The trial court granted appellees' motion for summary judgment, finding that the affidavits submitted by appellant's witnesses contained "statements of legal conclusions" and were insufficient "to overcome detailed factual statements" in the affidavits of appellees' witnesses "that there was no negligence." Appellant appeals from the summary judgment.

We reverse and remand the case inasmuch as we agree with appellant's position on the following issue presented by her on appeal:

"THE AFFIDAVITS APPENDED TO APPELLANT'S OPPOSITION TO SUMMARY JUDGMENT RAISE A SUBSTANTIAL FACTUAL ISSUE AND ALONE ARE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT." 1

In support of their motions for summary judgment, appellees submitted affidavits of R. Brent Gooder, M.D., and Harry B. Durham, M.D. After setting forth his medical background to establish his competency to testify in the premises, Dr. Gooder's affidavit reads:

"3. Affiant has been requested to and has reviewed the medical and hospital records pertaining to Gus Vassos, deceased, and has also read the deposition given by Louis J. Roussalis, M.D., one of the defendants in the captioned litigation.

"4. Affiant is familiar with the standard of care applicable to physicians practicing in the Casper, Wyoming community during the Spring and Summer of 1976 and is also familiar with the standard of care applicable to members of the medical community engaged in the practice of general medicine and/or family practice during the Spring and Summer of 1976.

"5. That based upon the symptoms and signs indicated and noted in the medical records and as set forth in the deposition of Louis J. Roussalis, M.D., particularly that relating to the right upper quadrant of the abdomen of the deceased, the initial diagnosis of acute gastritis or acute cholecystitis was in my judgment and opinion appropriate. Further, upon admission of Gus Vassos, deceased, to the Natrona County Memorial Hospital, the appropriate diagnostic test and studies and procedures were requested and performed and obtained. The care and treatment rendered by Louis J. Roussalis, M.D., conformed to the standard of care applicable to medical cases such as this and included therein obtaining the consultation of and from John Corbett, M.D.

"6. As indicated by the materials examined by affiant, surgery was performed the early evening of June 10, 1976, and thereafter the management of Gus Vassos, deceased, was primarily that of John Corbett, M.D.; however, it is well within the applicable standard of care for the initial physician, the family practitioner or general practitioner, to continue to follow the care and treatment rendered to a patient such as Gus Vassos, deceased and to assist the surgeon in any way possible relative to the continuing care and treatment to be rendered to such a patient.

"7. Affiant has reviewed the records and material indicated above and affiant knows of no negligent, careless and wrongful act or omission by Louis J. Roussalis, M.D., occurring at any time in the care and treatment of Gus Vassos, deceased. Affiant is of the opinion that the care and treatment rendered by Louis J. Roussalis, M.D., and all others indicated in the medical records examined, was performed within the exercise of that degree of care, skill and learning ordinarily possessed and exercised by physicians practicing in this community, or similar such communities, during the Spring and Summer of 1976. Further, affiant is of the opinion that based upon the examination of the materials indicated above, the care and treatment rendered to Gus Vassos, deceased, was in accordance with the degree of skill, learning and care ordinarily possessed and exercised by hospitals, medical personnel, including physicians and surgeons practicing in Casper, Wyoming at the time of said care, treatment and procedures."

After setting forth his medical background to establish his competency to testify in the premises, Dr. Durham's affidavit reads:

"2. That he has read the deposition of Dr. Corbett taken June 18, 1979 and has read and studied copies of the Natrona County Memorial Hospital records, identified, referred to and used in the depositions of doctors Corbett and Roussalis which are referable to the care and treatment of Gus Vassos from June 6, 1976 to August 16, 1976.

"3. That based on such records and depositions he is of the opinion that the procedures used, diagnoses and judgments made and the care and treatment rendered by Dr. Corbett were in accordance with usual, ordinary and medically accepted standards of medical practice prevailing at the time in Casper, Wyoming or other communities. All of such procedures, diagnoses, judgments, care and treatment by Dr. Corbett appear to have been made and performed with the exercise of the degree of care, skill and learning ordinarily possessed and exercised by physicians and surgeons practicing in Casper and other communities.

"4. Your affiant has known Dr. Corbett professionally for over 15 years and is acquainted with his knowledge, skill and ability as a general surgeon. In his opinion, Dr. Corbett is and was at the time relevant, a skilled and able surgeon, and is and was possessed of that degree of skill and learning commonly possessed and exercised by other members of his profession who practice in the Casper area or other areas of which your affiant has knowledge.

"5. That the records and depositions do not disclose any condition or event which he would consider resulted from neglect or failure to use reasonable care on the part of Dr. Corbett."

In opposition to the motions for summary judgment, appellant submitted the affidavits of William D. Flick, M.D., and Dan B. Greer, M.D. After setting forth his medical background to establish his competency to testify in the premises, Dr. Flick's affidavit reads:

"2. I have read the depositions of Drs. Corbett, Roussalis, and Durham, and have reviewed the records, herein referred to as the chart, of the hospitalization of Gus Vassos at Natrona County Memorial Hospital, which records are identified and referred to and used in the depositions of Drs. Corbett, Roussalis, and Durham, relating to the care and treatment of Gus Vassos from June 6, 1976 to August 17, 1976.

"3. Based upon the information contained in the records, and the depositions, I am of the opinion that the care rendered by Drs. Corbett and Roussalis to Gus Vassos during the period of his hospitalization from June 6, 1976 to August 16, 1976, was not in accordance with the usual ordinary medically accepted standards of medical practice prevailing at the time in Casper, Wyoming, and other communities, and that the procedures, diagnosis, judgment, care and treatment of Dr. Corbett and Dr. Roussalis were not made with the exercise of the degree of care, skill and learning ordinarily possessed and exercised by physicians and surgeons practicing in Casper, Wyoming, and other communities in 1976. It is my opinion that the care and treatment rendered to Gus Vassos by Drs. Corbett and Roussalis was negligent, and that the negligent treatment which was not in accordance with the standard of care required of such physicians was the cause of the death of Gus Vassos.

"4. My opinion is based upon a detailed review of the facts contained in the hospital records and the depositions of Drs. Corbett and Roussalis, which are too voluminous to be stated in this Affidavit, but which facts are contained throughout the medical records and referred to in the depositions of Drs. Corbett, Roussalis, and Durham."

And, after reciting his medical background to establish his competency to testify in the premises, Dr. Greer's affidavit reads:

"2. I have read the medical records of the Natrona County Memorial Hospital relating to the treatment of Gus Vassos from June 6, 1976 to August 16, 1976, and I have also read the depositions of Drs. Roussalis and Corbett relating to the treatment and care given by Drs. Roussalis and Corbett to Gus Vassos.

"3. Based upon the facts contained and the information stated in the above-referenced medical records and depositions, it is my opinion that the procedures used, diagnosis, and judgments made, and care and treatment rendered by Drs. Corbett and Roussalis were not in accordance with the usual, ordinary and medically accepted standards of medical practice prevailing at the time in Casper, Wyoming, or other communities. It is my opinion that the procedures, diagnoses, judgments, care and treatments rendered by Drs. Corbett and Roussalis were negligent and were not performed with the exercise of the degree of care, skill and learning ordinarily possessed and exercised by physicians and surgeons practicing in Casper, Wyoming and other communities.

"4. It is my opinion that based upon the facts contained in the medical records referred to in the depositions of Drs. Roussalis and Corbett, and the facts contained in the depositions of Drs. Roussalis and Corbett that the negligent care and treatment by Drs. Corbett and Roussalis of Gus Vassos were the cause of the death of Gus Vassos."

Appellees argue that the affidavits of Drs. Flick and Greer do not factually state the standard to be used...

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