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Dawson v. Prager9/26/2003
Simon listed in paragraph 10 of the affidavit have little bearing on the percentage of time he devoted to actual clinical practice during the period 1993 to 1995, insofar as can be ascertained:
governmental evaluations no mention for 1993 to 1995
emergency room duties "not taking emergency room call" in 1993 to 1995
admitting patients admitting patients from the emergency room was part of his responsibility as the on-call doctor for the department of psychiatry, he was not taking emergency room on-call duty in 1993 to 1995
clinical supervision at Suburban; and case consultation and assessment at Suburban time spent in these activities in 1993 to 1995 was less than in 2000. Estimated time Simon spent in those activities in 2000 appears to be approximately 2 hours per month. Hence, less than 2 hours per month.
consultation with other providers and students regarding patient care no mention for 1993 to 1995
clinical grand rounds no mention
clinical classes taught at Georgetown "sporadic," one hour per week for eight weeks; no mention for 1993 to 1995
In summary, from what we can learn from the affidavit, approximately a quarter of an hour per week was all the time that was not taken into account in Dr. Simon's deposition estimate that he spent 30-40% of his working hours in actual clinical practice during the period of 1993 to 1995. An additional quarter of an hour does not significantly increase the percentage of a 50 to 67-hour workweek.
The reasons offered by Simon in paragraph 10 of his affidavit for increasing his estimation of the percentage do not support the change. Thus, his attempt to reconcile his deposition and affidavit percentages fails.
What remains to be considered are paragraphs 3 and 9 of the affidavit in which Dr. Simon estimated that he spent more than 50% of his professional time in actual clinical practice during the period 1993 to 1995. His averments in the affidavit contradict his deposition testimony, where Dr. Simon estimated he devoted 30-40% of his professional time to actual clinical practice during that period.
Dawson's fallback position is that she can resist summary judgment through the use of Simon's affidavit even though it is at odds with his earlier deposition. She relies on Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983), and purports to quote from Mays. In fact, the principle quoted by Dawson was quoted in Mays, 233 Kan. at 46, from Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir. 1980), which the court distinguished as involving a clarifying rather than a contradictory affidavit. 233 Kan. at 45-46. The affidavits in Mays contradicted the prior deposition testimony and, like the affidavit in the present case, were filed in direct response to the filing of summary judgment motions. 233 Kan. at 46-47. In those circumstances, the court concluded that the trial court properly struck the disputed affidavits. 233 Kan. at 47. Mays governs the present case and requires the trial court's striking of Dr. Simon's affidavit to be affirmed.
PLAINTIFF'S CLAIMS OTHER THAN PSYCHIATRIC MALPRACTICE
Defendants sought partial summary judgment on all of Dawson's claims other than the medical malpractice claim "on the general basis that Plaintiff should not be allowed to take what is essentially a malpractice claim and transform it into multiple claims." The district court granted the defendants' motion for partial summary judgment. On Dawson's claims of negligent infliction of emotional distress and outrage, the district court concluded that the proper remedy for all a
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