Weber v. McCoy, 97-132

• Citation: 950 P.2d 548
• Decision Date: 17 December 1997
• Docket Number: No. 97-132,97-132
• Parties: Jack B. WEBER, Appellant (Plaintiff), v. Theodore N. McCOY, M.D., Appellee (Defendant).
• Court: United States State Supreme Court of Wyoming

Page 548

950 P.2d 548

Jack B. WEBER, Appellant (Plaintiff), v. Theodore N. McCOY, M.D., Appellee (Defendant).

No. 97-132.

Supreme Court of Wyoming.

Dec. 17, 1997.

Rehearing Denied Jan. 22, 1998.

James A. Coulter, Riverton, for Appellant.

J. Kent Rutledge and Lou Piccioni of Lathrop & Rutledge, P.C., Cheyenne, for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

MACY, Justice.

Appellant Jack Weber (the patient) appeals from the summary judgment which the district court granted in favor of Appellee Theodore McCoy (the doctor).

We affirm.

ISSUES

The patient offers the following issues for our review:

I. Whether the District Court erred in concluding appellee met his initial burden of demonstrating the absence of a genuine issue of material fact, when Dr. Stacy Childs' affidavit in support of summary judgment was inadequate, by not providing and stating a standard of reasonable medical probability necessary for admissible evidence in a medical malpractice action, by using speculative and conclusory language and failing to state the standard of care including the substantial risks of this surgery as well as the alternative of doing nothing?

II. Whether the District Court erred in granting summary judgment to Defendant based on that court's interpretation of timing prescribed by W.R.C.P. Rule 6(c) and whether it exceeded discretion in denying appellant's 6(b) W.R.C.P. motion for enlargement of time for submission of opposition affidavits in view of the actual procedural circumstances and cited definitive case law?

FACTS

The patient filed a medical malpractice action on February 13, 1995, alleging that the doctor negligently recommended a surgical procedure to deflate a large cyst on the patient's left kidney, that the doctor performed the surgery in a negligent manner, and that the doctor failed to obtain an informed consent from the patient when he did not disclose significant risks of the surgery. The doctor denied being negligent in caring for and treating the patient.

On May 1, 1996, during the course of discovery, the patient designated an expert witness. Subsequently, however, the patient refused to produce that expert so that the doctor could take his deposition. On January 17, 1997, the doctor's attorney called the patient's counsel, attempting to make arrangements for getting the expert's deposition. During that conversation, the patient's attorney disclosed that he had recently learned that his expert witness died on April 5, 1996, almost a full month before he designated him as an expert.

The doctor filed a motion for a summary judgment on January 24, 1997. A brief, along with an affidavit from Stacy Childs, M.D., a board-certified urologist, supported the motion. The district court notified the parties that it would hear the motion during the pretrial conference on February 18, 1997.

On the morning of February 18, 1997, the patient filed his response to the doctor's summary judgment motion along with a motion for more time in which to respond to the doctor's motion. The patient did not provide expert medical testimony in his opposition materials nor did he file an affidavit with his enlargement-of-time motion.

On that same date, the doctor filed a written response to the patient's opposition materials and enlargement-of-time motion. Given the various documents which were filed on At the summary judgment motion hearing, after the parties had presented their arguments, the district court asked the parties to provide additional briefing on the limited issue of whether the patient's responsive materials, including the enlargement-of-time motion, were timely filed. After receiving and considering the briefs, the district court denied the patient's enlargement-of-time motion and granted a summary judgment in favor of the doctor. The patient appeals from this order.

February 18th, the district court vacated the pretrial conference and hearing on the summary judgment motion and rescheduled the hearing for March 13, 1997. On March 12, 1997, the patient served supplemental documentation to support his opposition to the doctor's summary judgment motion.

STANDARD OF REVIEW

A summary judgment is appropriate when no genuine issue as to any material fact exists and when the prevailing party is entitled to have a judgment as a matter of law. Kirkwood v. CUNA Mutual Insurance Society, 937 P.2d 206, 208 (Wyo.1997); see also W.R.C.P. 56(c). We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. Kirkwood, 937 P.2d at 208. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. Id. We do not accord any deference to the district court's decisions on issues of law. Id. The moving party bears the initial burden of establishing a prima facie case for a summary judgment. Mize v. North Big Horn Hospital District, 931 P.2d 229, 232 (Wyo.1997). If the movant carries this burden, the opposing party is obligated to demonstrate that a genuine issue of material fact does exist. Id.

In order to avoid the entry of a summary judgment, a plaintiff in a malpractice case " 'has the obligation to establish (1) the accepted standard of medical care or practice, (2) that the doctor's conduct departed from the standard, and (3) that his conduct was the legal cause of the injuries suffered.' " Harris v. Grizzle, 625 P.2d 747, 751 (Wyo.1981) (quoting Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191, 1193 (1979)). In a malpractice case, the plaintiff must establish through expert medical testimony the appropriate standard of care and that the doctor breached that standard of care. Id.

DISCUSSION

A. Sufficiency of the Affidavit

The patient contends that Dr. Childs' affidavit was not sufficient to preclude a showing of a genuine issue of material fact because Dr. Childs did not state his opinions in terms of a "reasonable medical probability."

Wyoming does not require that an expert use the magic words "reasonable medical probability" in order for his opinion to be considered a competent medical opinion.

"The use of the terms 'probable' and 'possible' as a basis for test of qualification or lack of qualification in respect to a medical opinion has frequently converted this aspect of a trial into a mere semantic ritual or hassle. The courts have come to recognize that the competency of a doctor's testimony cannot soundly be permitted to turn on a mechanical rule of law as to which of the two terms he has employed. Regardless of which term he may have used, if his testimony is such in nature and basis of hypothesis as to judicially impress that the opinion expressed represents his professional judgment as to the most likely one among the possible causes of the physical condition involved, the court is entitled to admit the opinion and leave its weight to the jury."

Vassos v. Roussalis, 658 P.2d 1284, 1290-91 (Wyo.1983) (quoting Norland v. Washington General Hospital, 461 F.2d 694, 697 (8th Cir.1972)).

The patient claims that our decision in Hashimoto v. Marathon Pipe Line Co., 767 P.2d 158 (Wyo.1989), supports his argument. After reviewing Hashimoto, we conclude that the patient's reliance on this case is misplaced. In that case, we addressed an issue regarding the appropriate jury instructions

                for a personal injury case.  767 P.2d at 161-67.   We held that the instruction should include the term "reasonable probability" instead of the term "reasonable certainty" in its description of the proper standard under which future damages must be proven.  767 P.2d at 165.   We did not address the issue of whether an expert must use the phrase "reasonable medical probability" before his testimony will be considered.  We decline to depart from our previous determination that such qualifying technical language is not indicative of whether the doctor based his opinion upon the requisite degree of certainty
                

B. Informed Consent

The patient complains that Dr. Childs' affidavit did not demonstrate that the doctor provided the patient with enough information about the surgery to enable him to give an informed consent.

This Court has previously discussed what an affidavit must include to adequately support a summary judgment motion on a claim which alleges that informed consent was not obtained. Havens v. Hoffman, 902 P.2d 219 (Wyo.1995); Roybal v. Bell, 778 P.2d 108 (Wyo.1989). In Havens and Roybal, we carefully detailed the analysis of the summary judgment process as it pertains to lack of informed consent claims. We summarized the applicable rules as follows:

"Wyoming adheres to the majority position, known as the 'traditional' or 'professional' view, with respect to the required scope of disclosure. This standard provides that the physician is required to disclose only such risks that a reasonable practitioner of like training would have disclosed in the same or similar circumstances. Under this standard, expert testimony is required to establish what a reasonable practitioner would disclose in the same or similar circumstances.

"In order to overcome a motion for summary judgment, a plaintiff in a medical malpractice case must also present evidence, usually in the form of expert testimony, indicating the departure by a medical practitioner from a recognized standard of practice was a proximate cause of her injury. A plaintiff establishes proximate cause in an informed consent case by proof that proper disclosure would have resulted in a decision against the proposed treatment or procedure....

"With the foregoing principles in mind, we look to the materials in the record to determine if genuine...