Opinion
C. J. Berardini, Denver, for plaintiff-appellant.
Montgomery, Little, Young, Ogilvie & Campbell, P.C., David C. Little, Denver, for defendant-appellee.
BERMAN, Judge.
This is an appeal from a judgment granting defendant's motion for summary judgment and dismissing plaintiff's complaint. We reverse.
Plaintiff alleged that from 1965 to 1969 he was under the medical care and supervision of defendant, that during that entire period of time defendant had diagnosed him as suffering from diabetes, and had prescribed a regimen of diet and medication designed to control such condition. Plaintiff continued with the course of treatment prescribed until 1969 when results of examinations conducted by Drs. Gerald Starkey and Charles J. Blackwood indicated that he did not suffer from 'diabetes mellitus' or 'diabetes.' Alleging that this incorrect diagnosis and treatment was the result of defendant's negligence, plaintiff sought damages.
Defendant filed a motion for summary judgment to which he appended two affidavits, his own and one from Dr. Starkey. In view of his affidavit stating he had followed generally accepted medical practices in his diagnosis and treatment of plaintiff, and in the absence of counter-affidavits or other evidence by plaintiff, defendant urges that he is entitled to summary judgment.
Plaintiff contends that the allegations of his complaint must be accepted as true, thus obviating the necessity of his doing anything further. That contention is not the law in Colorado. Durnford v. Thornton, 29 Colo.App. 349, 483 P.2d 977.
Although plaintiff was in error regarding his attempted reliance on his pleadings and failure to 'proffer any evidentiary explanatory material (or) file a 56(f) affidavit,' Sullivan v. Davis, 172 Colo. 490, 474 P.2d 218, there is no necessity for counter-affidavits to be filed where supporting affidavits are self-contradictory or insufficient to satisfy the burden imposed on the moving party, 6 J. Moore, Federal Practice 56.11(3) (2d ed.), and an issue of fact may arise from countervailing inferences which are permissible from evidence accepted as true. O'Herron v. State Farm Mutual Automobile Insurance Co., 156 Colo. 164, 397 P.2d 227; and School District No. 6 v. Alfred Watts Grant & Assoc., 156 Colo. 328, 399 P.2d 101. Additionally, the law requires that if there is any question whether a genuing issue of material fact exists, 'all doubts must be resolved against the moving party.' Ridgewood Mobile Homes Park, Inc. v. Alameda Water & Sanitation District, 159 Colo. 178, 410 P.2d 641. Applying these principles to the present case, we conclude that the affidavits and other evidence available to the trial court did not constitute a sufficient basis upon which to grant defendant a summary judgment.
The affidavit of the defendant states: That during the year 1965 the defendant performed a course of examinations, both physical and by laboratory analyses, upon
the plaintiff; that during all such procedures he followed standard medical practice in his care and treatment of the plaintiff; that there was no departure from accepted medical practice during the time that plaintiff remained under defendant's care; that, as a result of his examinations and the laboratory analyses, defendant concluded, in his medical judgment, that the plaintiff was suffering from 'chemical diabetes' which he described as the 'developmental stage of overt diabetes.' He also describes the treatment he prescribed for plaintiff and states that, '(u)nder certain circumstances this course of treatment and prescription can be accompanied or followed by a remission of the symptoms of overt diabetes for an unpredictable period of time.' The affidavit did not contain the results of the laboratory analyses or the reports which were done by Jane F. Shwayder (defendant's wife), although they were listed as exhibits on defendant's pre-trial certificate.
The affidavit of Dr. Starkey, who incidentally was one of the witnesses listed by plaintiff in his pre-trial certificate, states that he conducted tests on the plaintiff concerning an alleged diabetic condition during the latter part of 1969 or early part of 1970, and that he found that plaintiff 'did not have diabetes at that time.' He described plaintiff as having a low renal threshhold for sugar. Dr. Starkey went on to state that 'the results of these tests do not preclude or suggest the existence of a diabetic condition at some time prior thereto and during the treatment of' the plaintiff by the defendant, and that he was unable to state whether plaintiff did or did not have a diabetic condition or an indication of diabetes mellitus at some time prior to the tests. Dr. Starkey was unable to express any opinion regarding the propriety or reasonableness of any prior diagnosis made by Dr. Shwayder.
Plaintiff, the essence, has alleged that the negligence of the defendant was a continuing one existing for more than four years, but defendant in his affidavit speaks only of his initial diagnosis in 1965 and not beyond that time. He makes no mention in his affidavit of any further laboratory testing. Assuming the correctness of the statement in his affidavit that there can be a remission of 'overt diabetes,' the defendant has failed to explain why, after his initial diagnosis in 1965, he did not make any additional laboratory tests on the plaintiff to determine whether remission had in fact occurred. Whether such additional tests should have been conducted by defendant is an issue of fact not resolved by his affidavit. A jury hearing this case could conclude that such a failure was one which was negligent and contributed to an erroneous diagnosis and consequent improper treatment. See Artist v. Butterweck, 162 Colo. 365, 426 P.2d 559.
Here, the defendant's affidavit states no facts, as distinguished from conclusions, and Dr. Starkey's affidavit is equivocal. For the reasons stated above, we hold that the affidavits are insufficient to justify a summary judgment. Belanger v. Hopeman Bros., Inc., 6 F.R.D. 459 (S.D.Me.). As stated in Losavio v. Kikel, Colo., 529 P.2d 306 (1974), 'trial by affidavit is not the ideal method of ascertaining the facts in any case.'
Judgment is reversed and the cause remanded with directions to reinstate the complaint.
ENOCH and KELLY, JJ., concur.