Rel: December 14, 2007
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008
____________________
1060589
____________________
Richard T. Carraway, as executor of the estate of Shirley
Gail Carraway, deceased
v.
Terry Kurtts, M.D.
Appeal from Baldwin Circuit Court
(CV-05-1357)
SEE, Justice.
Richard
T.
Carraway
("Richard"),
as
executor
of
the
estate of Shirley Gail Carraway ("Shirley"), deceased, seeks
1060589
a reversal of a summary judgment in favor of defendant Terry
Kurtts, M.D. ("Dr. Kurtts").
We affirm.
Facts and Procedural History
In
May
2003,
practitioner,
Dr.
admitted
Kurtts,
Shirley
a
to
board-certified
South
Baldwin
family
Regional
Medical Center for evaluation to determine whether she should
be placed in a nursing home.
Shirley was evaluated by a
neurologist, who diagnosed her as having Parkinson's disease.
A few days later, Dr. Kurtts admitted Shirley to a nursing
home owned and operated by Beverly Enterprises Alabama, Inc.,
doing business as Beverly Healthcare-Foley ("Beverly"), with
diagnoses of Parkinson's disease, gastrointestinal bleeding,
depression, pneumonia, and convulsions.
While she was at the
nursing home, Shirley was taking several drugs prescribed by
Dr. Kurtts.
Over the course of the next five months, Shirley
was treated on several occasions at the emergency room at
South Baldwin Regional Medical Center for complaints including
drug
withdrawal,
anxiety
attacks,
internal
bleeding,
and
pneumonia.
In November 2003, a nursing-home employee found Shirley
having convulsions on the floor in her room; part of her body
2
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was wedged beneath her bed.
She suffered a cut and some
bruising as a result of the convulsions.
same day, Shirley fell from her bed.
Sometime later that
Shirley was found by her
brother Richard, a trained paramedic, who had come to visit
her at the nursing home.
After seeing that Shirley was barely
breathing and that her skin was a bluish color, Richard called
for help from the nursing staff and began performing CPR while
waiting for emergency medical services to arrive.
were
initially
delayed
in
their
efforts
to
Paramedics
reach
Shirley
because the nursing-home doors had been locked for the night.
Shirley was taken by the paramedics to South Baldwin Regional
Medical Center, where she was pronounced dead.
Two days later
an autopsy revealed that, "[while] no specific findings ...
account for the patient's 'acute illness' prior to her death,
the origin was likely cardiac given the evidence of changes
caused
by
hypertension
and
the
evidence
of
early
heart
failure."
In
November
2005,
Richard,
as
executor
of
Shirley’s
estate, brought a wrongful-death action against Dr. Kurtts,
Beverly, and several employees of Beverly.
Beverly moved the
trial court to compel arbitration pursuant to an agreement
3
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signed when Shirley was admitted to the nursing home.
The
trial court granted that motion, 1 and Dr. Kurtts then moved to
be excluded
from the arbitration order.
granted that motion.
The trial court
Shortly after he was excluded from the
arbitration order, Dr. Kurtts moved for a summary judgment.
The trial court set the hearing on that motion for August 28,
2006.
Less than 24 hours before that hearing, Richard filed
his motion in opposition to the summary judgment, along with
a request under Rule 56(f), Ala. R. Civ. P., for "additional
discovery and additional time for [Richard's standard-of-care
expert], Dr. Cutson, to do those things necessary to submit an
adequate affidavit to oppose Dr. Kurtts'[s] motion for summary
judgment."
The trial court granted a continuance to allow
Richard's standard-of-care expert to submit an affidavit.
In
September 2006, Richard filed the first affidavit of Dr. Toni
Cutson.
In November 2006, the trial court held the hearing on
Dr. Kurtts’s motion for a summary judgment.
Two weeks after
the hearing was completed, Richard filed a second affidavit
1
Richard appealed the trial court's order compelling
arbitration, and we affirmed. Carraway v. Beverly Enters.
Alabama, Inc., [Ms. 1051409 July 20, 2007] ___ So. 2d ___
(Ala. 2007).
4
1060589
from Dr. Cutson.
The trial court then entered a summary
judgment in favor of Dr. Kurtts.
Richard now appeals.
Issues
Richard presents three issues on appeal.
whether the trial court erred
The first is
in finding that Dr. Kurtts
produced sufficient evidence indicating that he did not breach
his duty of care to shift the burden of proof to Richard.
The
second is whether the trial court erred in holding a hearing
on a summary-judgment motion before discovery was completed.
The
third
issue
is
whether
Richard
presented
admissible,
substantial evidence from a similarly situated health-care
provider
that
Dr.
Kurtts
breached
the
standard
of
care
applicable to a family practitioner.
Standard of Review
"Our review of a summary judgment is de novo ...."
Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003).
In order to uphold a summary judgment, we must
determine that "there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law."
Rule 56(c)(3), Ala. R. Civ. P.
"When the
movant makes a prima facie showing that those two conditions
5
1060589
have been satisfied, the burden then shifts to the nonmovant
to present substantial evidence creating a genuine issue of
material fact." Blue Cross & Blue Shield v. Hodurski, 899 So.
2d 949, 952 (Ala. 2004). Substantial evidence is "evidence of
such weight and quality that fair-minded persons in the
exercise
of
impartial
judgment
can
reasonably
infer
the
existence of the fact sought to be proved." West v. Founders
Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.
1989); see also § 12-21-12(d), Ala. Code 1975.
In reviewing
a summary judgment, we must view the evidence in the light
most favorable to the nonmovant.
Johnny Ray Sports, Inc. v.
Wachovia Bank, [Ms. 1060306, August 17, 2007] ___ So. 2d ___,
___ (Ala. 2007).
Analysis
I.
The first issue is whether the trial court erred in
finding that Dr. Kurtts presented sufficient evidence to meet
his initial burden of showing that he did not breach his duty
of care. Richard contends that the affidavit submitted by Dr.
Kurtts
does
not
address
all
the
claims
against
him.
Specifically, Richard alleges that because paragraph 4 of Dr.
6
1060589
Kurtts's
affidavit
addresses
only
the
last
24
hours
of
Shirley’s life, Dr. Kurtts fails to address the specific
claims alleged in Richard's complaint.
The allegations made
in the complaint against Dr. Kurtts specify neither a date nor
a time when the alleged breaches occurred; however, the
complaint alleges facts that begin with Dr. Kurtts initially
treating Shirley in May 2003 and that end with her death
November 14, 2003.
In his affidavit, Dr. Kurtts states that
he is a board-certified family practitioner "familiar with the
standard of care
of
board-certified family practitioners
caring for nursing home patients in 2003." Dr. Kurtts states
that he took part in Shirley’s treatment from May 6, 2003,
until November 14, 2003.
He further states that he "met the
standard of care of board-certified family practitioners at
all times material to the plaintiff’s complaint."
Richard cites Mixon v. Cason, 622 So. 2d 918 (Ala. 1993),
for the proposition that on a motion for a summary judgment by
a health-care provider in a medical-malpractice action, the
health-care provider bears the initial burden of producing
evidence demonstrating that no genuine issue of material fact
exists. 622 So. 2d at 921.
In Mixon, the plaintiff amended
7
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her complaint to include new claims, and those new claims were
not addressed by the affidavits of three of the defendants in
support of their summary-judgment motion.
We held that those
defendants had not met their initial burden because they had
failed to demonstrate the absence of a genuine issue of
material fact. Therefore, we reversed the summary judgment as
to those defendants. Richard has not amended his complaint to
allege any claims against Dr. Kurtts other than those already
addressed in Dr. Kurtts’s affidavit. Moreover, this Court has
held:
"Regarding the relative burdens of proof to be
considered in determining whether a party has met
the requirements for a summary judgment, we have
stated:
"'"....
"'"If the burden of proof at trial is
on the nonmovant, the movant may satisfy
the Rule 56 burden of production either by
submitting
affirmative
evidence
that
negates an essential element in the
nonmovant's claim or, assuming discovery
has been completed, by demonstrating to the
trial court that the nonmovant's evidence
is insufficient to establish an essential
element of the nonmovant's claim ...."'"
Verchot v. General Motors Corp., 812 So. 2d 296, 300 (Ala.
2001)(quoting Ex parte General Motors Corp., 769 So. 2d 903,
8
1060589
909 (Ala. 1999), quoting in turn Berner v. Caldwell, 543 So.
2d 686, 691 (Ala. 1989)(Houston, J., concurring specially)).2
Dr. Kurtts's affidavit denies that he breached the applicable
standard of care, an essential element of Richard's claims
against Dr. Kurtts.
We therefore hold that the trial court
did not err in finding that Dr. Kurtts presented sufficient
evidence to shift the burden of proof to Richard.
II.
The second issue is whether the trial court erred by
conducting a hearing on the summary-judgment motion before
discovery was completed.
The day before the trial court’s
first scheduled hearing on Dr. Kurtts's summary-judgment
motion, Richard filed his response to that motion and a Rule
56(f), Ala. R. Civ. P., motion, seeking a continuance to allow
him to secure an affidavit from an expert witness. Rule 56(f)
provides: "Should it appear from the affidavits of a party
opposing the motion that the party cannot, for reasons stated,
present by affidavit facts essential to justify the party’s
2
Because Dr. Kurtts met his Rule 56 burden by submitting
an affidavit denying an essential element of Richard's claims,
we address only the first of the available options for a
nonmovant to meet his or her burden of production.
9
1060589
opposition, the court may deny the motion for summary judgment
or may order a continuance to permit affidavits to be obtained
...."
Richard's Rule 56(f) motion stated that he needed more
time and discovery in order "to do those things necessary for
[Richard] to submit an adequate affidavit to oppose Dr.
Kurtts'[s] motion for summary judgment."
Despite the fact
that Richard's motion was not supported by the affidavit
required by Rule 56(f), the trial court granted Richard a twoand-one-half-month
continuance
was
continuance.
granted,
Richard
Three
weeks
submitted
an
after
the
affidavit
provided by the physician named in Richard's Rule 56(f)
motion.
Richard now alleges, however, that the trial court
erred in not allowing him to complete discovery before it
ruled on Dr. Kurtts's summary-judgment motion.
Richard appears to rely on our decision in Phillips v.
AmSouth Bank, 833 So. 2d 29 (Ala. 2002), for the proposition
that a motion for a summary judgment may not be granted before
discovery
is
completed.
Such
a
proposition
is
a
misinterpretation both of the holding in Phillips and of the
substance of Rule 56, Ala. R. Civ. P.
Rule 56(c)(3) provides:
"The judgment sought shall be rendered if the pleadings,
10
1060589
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law."
Where a
party has had insufficient time to conduct the discovery
necessary to oppose such a motion, Rule 56(f) allows the trial
court discretion to "deny the motion for summary judgment or
... order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or ... [to]
make such other order as is just."
In
Phillips
v.
AmSouth
Bank,
this
Court
reversed
a
summary judgment, holding that the trial court had exceeded
its discretion by entering the judgment only five days after
a Rule 56(f) motion had been filed in a case in which no
discovery had been conducted.
Phillips, 833 So. 2d at 32.
Unlike the trial court in Phillips, however, the trial court
in this case granted Richard a continuance of two and one half
months.
As a result of that continuance, Richard was able to
obtain and submit an affidavit –- which he now argues is
adequate –- to oppose Dr. Kurtts’s motion for a summary
11
1060589
judgment. See Richard's brief at 36. Our decision in Phillips
is therefore not apposite to this case.
Richard
was
granted
the
two-and-one-half-month
continuance to allow him to secure an adequate affidavit from
his expert witness.
by
Richard
references
8
to
Dr. Cutson's initial affidavit, submitted
weeks
no
before
fewer
the
than
14
second
sets
of
hearing,
contains
medical
records.
Richard's second motion in opposition to Dr. Kurtts's summaryjudgment motion, filed six days before the second scheduled
hearing, did not contain an additional request for Rule 56(f)
relief,
a
request
for
further
discovery,
a
request
for
additional time, or any allegation that the discovery upon
which Dr. Cutson’s affidavit was based was insufficient to
oppose the summary judgment.
The purpose of the pre-hearing
continuance was not to allow for exhaustive discovery reaching
all aspects of the case, but to allow Richard sufficient time
to secure and submit an affidavit on the issue whether Dr.
Kurtts had breached the standard of care.
nothing
indicates
that
further
From the evidence,
discovery
or
delay
was
warranted before the trial court held its hearing on Dr.
Kurtts's summary-judgment motion.
12
Therefore, we hold that the
1060589
trial court did not err in granting a continuance for the
limited purpose of allowing Richard to obtain his requested
affidavit before entering a summary judgment and in entering
a summary judgment before all discovery had been completed.
III.
The third issue is whether Richard presented admissible,
substantial evidence from a similarly situated health-care
provider indicating that, in treating Shirley, Dr. Kurtts
breached
the
practitioner.
standard
When
a
of
care
defendant
applicable
in
a
to
a
family
medical-malpractice
action has met his burden of production on a summary-judgment
motion, the burden then shifts to the plaintiff to prove "by
substantial evidence that the health care provider failed to
exercise such reasonable care, skill, and diligence as other
similarly situated health care providers in the same general
line of practice ordinarily have and exercise in a like case."
§ 6-5-548(a), Ala. Code 1975.
This burden is usually met by
presenting expert medical testimony, which may be provided
only by a "similarly situated health care provider." § 6-5548(e), Ala. Code 1975.
In cases where the defendant in a
13
1060589
medical-malpractice
action
is
a
specialist,
the
similarly
situated health-care provider must meet four qualifications:
"(1) [He or she must be] licensed by the
appropriate regulatory board or agency of this or
some other state.
"(2) [He or she must be] trained and experienced
in the same specialty.
"(3) [He or she must be] certified by an
appropriate American board in the same specialty.
"(4) [He or she must have] practiced during the
year preceeding the date that the alleged breach of
the standard of care occurred."
§
6-5-548(c),
proposed
Ala.
Code
standard-of-care
1975.
expert
When
the
witness
testimony
in
a
of
a
medical-
malpractice case is presented by an affidavit, this Court has
held
that,
"[to]
be
admissible,
an
affidavit
offered
in
support of a summary-judgment motion must 'show affirmatively
that the affiant is competent to testify to the matters stated
therein.' Rule 56(e), Ala. R. Civ. P." Sherrer v. Embry, 963
So. 2d 79, 83 (Ala. 2007).
Rule 56(e) further mandates that
"[s]worn or certified copies of all papers or parts thereof
referred to in an affidavit
served therewith."
shall be attached thereto or
If a plaintiff fails to produce admissible
expert testimony by one who qualifies as a similarly situated
14
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health-care provider as to the standard of care, the defendant
health-care provider is entitled to a summary judgment as a
matter of law. Sherrer, 963 So. 2d at 83.
Here,
Richard
presented
two
affidavits
regarding
the
standard of care from his expert witness, Dr. Toni Cutson.
The first affidavit was filed on September 20, 2006.
The
first affidavit fails to comply with the mandatory elements
for admissibility under Rule 56(e), Ala. R. Civ. P.
Rule
56(e) requires that sworn or certified copies of all documents
referenced in the affidavit be attached to or served with the
affidavit.
Richard did not attach or serve certified copies
of the medical documents Dr. Cutson considered in rendering
her opinion.
Indeed, no documents were attached to or served
with the first affidavit.
trial
court
for
leave
At no time did Richard move the
to
certified
medical
records
Moreover,
Richard
admits
supplement
in
to
the
compliance
this
Court
affidavit
with
that
Rule
Dr.
with
56(e).
Cutson's
opinion regarding the alleged breach in this wrongful-death
action was based on multiple uncertified medical records,
including the decedent's autopsy report. Richard's reply brief
at 10.
15
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Although Richard attached several medical documents as
exhibits to his motion in opposition to a summary judgment, it
is impossible to reconcile the 14 records referenced in the
first
affidavit
with
exhibits before us.
the
23
records
that
appear
in
the
No document referenced in the first
affidavit shares the same name or description as a document in
the exhibit list. 3
Thus, we cannot conclude that Richard has
corrected the defects in the affidavit he submitted, even had
the medical records attached to the motion all been sworn or
certified.
In her first affidavit Dr. Cutson states that she is
"licensed
Carolina,"
to
practice
that
she
medicine
"presently
in
the
serve[s]
State
as
of
North
Director
of
Geriatrics at the Veteran’s Administration Hospital in Durham,
NC," and that she is a "member of the Duke Medical School
Faculty."
The affidavit does not state whether Dr. Cutson is
trained and experienced in the same specialty as Dr. Kurtts.
3
For example, document "A" referenced in Dr. Cutson's
first affidavit is described as "Records from Nancy Ann
McLeod, M.D."
No record attached to Richard 's motion in
opposition to summary judgment had been prepared by Dr.
McLeod. Document "B" referenced in the first affidavit is
described as "Records from Elberta Family Medicine."
No
record attached to Richard 's motion indicates that it is from
"Elberta Family Medicine."
16
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The affidavit does not state whether Dr. Cutson is a boardcertified family practitioner; neither does it state whether
Dr. Cutson had practiced in the same specialty as Dr. Kurtts
during the year preceding the alleged breach.
On appeal, Richard alludes to Dr. Cutson's curriculum
vitae,
which
was
attached
to
Richard's
November
8,
2006,
motion in opposition to the motion for a summary judgment, in
the following parenthetical notation:
"20. Dr. Toni Cutson, a similarly situated healthcare
provider as defined by § 6-5-548, Code of Alabama
(Exhibit V - CV of Dr. Cutson) was also asked to
conduct a records review to determine whether or not
Dr. Kurtts had breached the standard of care and, if
so,
whether
one
or
more
of
those
breaches
proximately caused the death of Shirley Carraway."
Dr. Cutson's affidavit had been submitted on September 20,
2006, and reappears as Exhibit W to Richard's motion.
The
affidavit does not reference the curriculum vitae, nor does
the curriculum vitae reference the affidavit that Richard
would
now
have
us
say
it
supports.
Moreover,
if
the
curriculum vitae was intended to support the affidavit, it
needed to have been sworn or certified.
R. Civ. P. 4
4
See Rule 56(e), Ala.
Moreover, any supplementation of the affidavit is
"Supporting and opposing affidavits
shall be made on personal knowledge, shall
17
1060589
to be done with the court's permission, which was not sought
in this case.
When reviewing a summary judgment, we apply the
same standard as the trial court applied.
The curriculum
vitae was not submitted in support of Dr. Cutson's affidavit
and fails to meet the mandatory requirements of a supporting
document to an affidavit under Rule 56(e), Ala. R. Civ. P.
Thus, it is not properly before us in support of an affidavit
with
which
it
was
not
submitted
and
which
does
not
even
reference it.
Even, however, if we were to consider the curriculum
vitae, it is not clear from the curriculum vitae that Dr.
Cutson was a similarly situated health-care provider to Dr.
Kurtts at the relevant time.
The curriculum vitae reflects
that Dr. Cutson was a board-certified family practitioner at
set forth such facts as would be admissible
in evidence, and shall show affirmatively
that the affiant is competent to testify to
the matters stated therein.
Sworn or
certified copies of all papers or parts
thereof referred to in an affidavit shall
be attached thereto or served therewith.
The court may permit affidavits to be
supplemented or opposed by depositions,
answers to interrogatories, or further
affidavits. ..."
Rule 56(e), Ala. R. Civ. P.
18
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the time of the hearing and during the year preceding Dr.
Kurtts's alleged breach of the standard of care; however, none
of
the
professional
curriculum
vitae
appointments
indicate
that
listed
she
on
practiced
Dr.
in
Cutson's
the
same
general area of practice at the time of the hearing or during
the year preceding the alleged breach, as is required of
similarly situated physicians.
1975.
§ 6-5-548(c)(4), Ala. Code
Only those positions Dr. Cutson held for the year
preceding May through November 2003 are relevant to whether
Dr. Cutson qualifies as a similarly situated physician. See §
6-5-548(c)(4), Ala. Code 1975. 5
states
that
during
the
Dr. Cutson's curriculum vitae
relevant
period
she
served
as
an
"Assistant Medical Director," a "Staff Physician, Geriatric
5
Section 6-5-548(c), Ala. Code 1975, requires that the
proffered expert:
"(1) Is licensed by the appropriate regulatory
board or agency of this or some other state.
"(2) Is trained and experienced in the same
specialty.
"(3) Is certified by an appropriate American
board in the same specialty.
"(4) Has practiced during the year preceding the
date that the alleged breach of the standard of care
occurred. "
19
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Research, Education and Clinical Center," a "Staff Physician,
Spinal Cord Injury & Dysfunction Team," a "Medical Director of
the Palliative Care Consult Team," and a "Physician member of
VISN 6 VHA Palliative Care Team."
Dr. Kurtts is not accused
of breaching the standard of care applicable to a medical
director,
a
researcher
in
geriatrics,
a
spinal-cord
specialist, or a palliative-care specialist, nor do any of
these positions affirmatively indicate that Dr. Cutson was
involved
in
the
relevant period.
specialty
of
family
practice
during
the
To conclude that she was would require us to
speculate as to what she might have been doing as a medical
director or researcher or in her other specialties, something
that she could easily have made clear in her affidavit if she
had in fact been actively engaged in family-practice medicine
at the relevant time.
Therefore, even if we were to consider
the curriculum vitae, it is not apparent from the curriculum
vitae that the positions listed are sufficient to qualify Dr.
Cutson as a similarly situated physician.
Dr. Cutson's affidavit suggests six different ways in
which Dr. Kurtts breached a standard of care, but it does not
allege that the standard of care that was breached is the
20
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standard
of
care
practitioner.
applicable
to
a
board-certified
family
"In this case, the standard of care allegedly
breached is the standard of care that a doctor would exercise
in
assessing,
treating,
caring
for
and
monitoring
a
Parkinson's disease patient whom the doctor has admitted to a
nursing home or long term care facility and whom he undertook
to attend during the patient's residency." Richard's brief at
43.
Richard has chosen to support this allegation with an
expert's affidavit that fails to mention whether Dr. Cutson
practiced family practice, whether she treated patients with
Parkinson's
care;
the
disease,
affidavit
or
whether
fails
even
she
to
provided
define
nursing-home
the
applicable
standard of care. 6
Further,
the
first
affidavit
is
inadmissible,
without consideration of the curriculum vitae.
even
This Court has
held:
"Indeed, the two further requirements [of Rule
56(e)] -- that the affidavit 'show affirmatively
that the affiant is competent to testify to the
matter
stated
therein'
and
that
'[s]worn
or
certified copies of all papers or parts thereof
6
Richard disputes whether § 6-5-548(c) is even the
standard to be imposed, arguing instead that § 6-5-548(b), the
standard for nonspecialists, is the applicable standard. See
Richard's brief at 44.
21
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referred to in an affidavit shall be attached
thereto or served therewith' -- are no less critical
in testing the propriety of an affidavit in support
of, or in opposition to, a summary judgment motion.
"We hold,
records were
affidavit of
affidavit was
court."
therefore, that because no medical
attached to or served with the
Dr. [A. Hyman] Kirshenbaum, the
properly disregarded by the trial
Waites v. Univ. of Ala. Health Servs. Found., 638 So. 2d 838,
842 (Ala. 1994).
The affidavit does not affirmatively show
that Dr. Cutson was competent to testify, lacking any averment
as to her board certification in family practice
in
that
breach.
specialty
during
the
year
preceding
or practice
the
alleged
The affidavit was not attached to, served with, or
supplemented by certified copies of the medical documents
referred to in it.
Therefore, applying the holding in Waites,
we conclude that the first affidavit offered by Richard fails
to meet the mandatory elements for admissibility under Rule
56(e), Ala. R. Civ. P.
Further, in Sherrer this Court held:
"To be admissible, an affidavit offered in
support of a summary-judgment motion must 'show
affirmatively that the affiant is competent to
testify to the matters stated therein.' Rule 56(e),
Ala. R. Civ. P. Dr. [James R.] Stilwell's affidavit
does
not
demonstrate
that
he
satisfies
the
requirements for qualifying as a 'similarly situated
22
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health care provider' under § 6-5-548(b), Ala. Code
1975.
Thus, the trial court did not exceed its
discretion in excluding his expert testimony.
Because Dr. Stilwell's affidavit is not admissible,
the Sherrers have failed to rebut Dr. Embry's prima
facie showing that he met the applicable standard of
care in his treatment of Stephanie Sherrer. Thus,
the trial court did not err in entering a summary
judgment in favor of Dr. Embry."
Sherrer, 963 So. 2d at 83.
The only provision that Rule
56(e), Ala. R. Civ. P., makes for supplementing an affidavit
is by "depositions, answers to interrogatories, or further
affidavits."
None of the subsequent timely submissions by
Richard, including the curriculum vitae, were provided in this
manner.
In Sherrer and Waites this Court held that Rule
56(e), Ala. R. Civ. P., mandates that affidavits affirmatively
show the affiant competent to testify and that any referenced
document be certified or sworn and attached or served with the
affidavit.
Because the expert witness's affidavit submitted
by Richard failed to comply with either of these mandates of
Rule 56(e), the affidavit is inadmissible and not properly
before this Court in review of the summary judgment. 7
7
This Court has held that trial courts have discretion in
whether to allow an affidavit to be supplemented by further
documents. "This is the only provision in Rule 56(e) that
allows the trial court to exercise discretion in considering
affidavit testimony in support of or in opposition to a motion
for summary judgment." Ex parte Head, 572 So. 2d 1276, 1281
23
1060589
Richard filed a second affidavit on November 29, 2006,
over two weeks after the hearing on Dr. Kurtts's summaryjudgment motion on November 14, 2006.
Rule 56(c), Ala. R.
Civ. P., states that "any statement or affidavit in opposition
[to a motion for a summary judgment] shall be served at least
two (2) days prior to the hearing."
2d 691 (Ala. 1979), is on point.
Guess v. Snyder, 378 So.
The plaintiff in Guess, a
medical-malpractice case decided by a summary judgment, was
granted a continuance for the express purpose of obtaining an
opposing
affidavit.
Before
the
hearing
on
the
summary-
judgment motion, the plaintiff submitted an affidavit and an
unsworn attachment from the proposed standard-of-care expertwitness physician that was insufficient under Rule 56(e), Ala.
R. Civ. P.
On Friday, March 9, one week after the hearing
held on March 2, the plaintiff filed with the court another
affidavit from the same physician.
Five days after that, on
March 14, the court entered a summary judgment in favor of the
defendant.
This
Court
refused
to
consider
the
second,
untimely affidavit:
"The trial court can consider only that material
before it at the time of submission of the motion.
(Ala. 1990).
24
1060589
"To
like
effect
are
the
federal
cases,
interpreting [Fed. R. Civ. P.] 56.
Any material
filed after submission of the motion comes too late.
"... Plaintiff had no material on file to oppose
[the defendant's] motion, except the unsworn hearsay
letter from the Kentucy physician.
The affidavit
filed March 9 was unquestionably untimely. The case
had already been submitted to the court on March 2.
Thus, we do not know whether the trial court was
even aware of the tardy affidavit.
We judicially
know that March 9, 1979, was a Friday. We also know
the judgment was dated March 14, the following
Wednesday. It is very likely that the trial judge
did not know of the filing of the tardy affidavit
when he made his ruling. Certainly, the duty fell
on the plaintiff's attorney to timely file and
present his supporting papers.
"... We are not to be understood as holding that
the trial judge could not have considered the tardy
affidavit if the record clearly indicated it had
been presented to him before his ruling on summary
judgment."
378 So. 2d at 692-93 (citations omitted).
The issue here is nearly identical.
a
continuance
to
secure
an
opposing
Richard was granted
affidavit.
Richard
submitted an affidavit before the hearing, but that affidavit
failed to meet the mandatory certification and attachment
requirements of Rule 56(e), Ala. R. Civ. P.
Two weeks after
the hearing on the summary-judgment motion, Richard submitted
a second affidavit from the same physician, on a Wednesday.
Five
days
later,
on
Monday,
the
25
court
entered
a
summary
1060589
judgment for Dr. Kurtts.
There is no indication in the record
that the judge was aware of, considered, or deemed admissible
the untimely filed affidavit.
Because the second affidavit of
Dr. Cutson, filed more than two weeks after the hearing, does
not comply with Rule 56(c), it is not properly before this
Court on review of the summary judgment.
Although the trial court did not state the basis on which
it
made
its
determination,
because
neither
affidavit
is
admissible Richard has failed to offer any evidence to meet
his burden of proving by substantial evidence from a similarly
situated health-care provider that Dr. Kurtts breached the
applicable
standard
of
care.
Because
Richard
failed
to
present any admissible, substantial evidence from a similarly
situated health-care provider that Dr. Kurtts had breached the
applicable standard of care, we cannot conclude that the trial
court erred in entering a summary judgment in favor of Dr.
Kurtts.
Having failed to demonstrate the existence of a genuine
issue of material fact as to whether there was a breach of the
standard of care by Dr. Kurtts, Richard did not meet his
burden
of
proof.
In
the
absence
26
of
a
genuine
issue
of
1060589
material fact and because Dr. Kurtts is entitled to a judgment
as a matter of law, we hold that the trial court did not err
in entering a summary judgment in favor of Dr. Kurtts.
Conclusion
In his summary-judgment motion, Dr. Kurtts made a prima
facie showing that he had not breached the applicable standard
of care.
Richard failed to create a genuine issue of material
fact, through testimony of a similarly situated health-care
provider, as to whether Dr. Kurtts had breached the standard
of care.
Therefore, we affirm the summary judgment in favor
of Dr. Kurtts.
AFFIRMED.
Stuart, Smith, Bolin, and Parker, JJ., concur.
Cobb, C.J., and Lyons, Woodall, and Murdock, JJ., concur
in the result.
27
