Archuleta v. Goldman , 107 N.M. 547 ( 1987 )

BIVINS, Judge

(dissenting).

I am unable to agree that summary judgment was proper and would vacate the order granting that relief to defendants and remand for trial on the merits. My reasons are as follows:

1. Defendants did not make out a prima facie showing of no issue of material fact.

(a) The affidavit of Hilda T. Marin does not satisfy the requirements of SCRA 1986, Rule 1-056(E) that require it to set forth facts as would be admissible in evidence. Contrary to defendants’ claim below, this affidavit does not satisfy the requirements for admissibility under SCRA 1986, Rule 11-803(F). Nowhere does Ms. Marin state in her affidavit that the medical records summarized were made at or near the time of the visits, that the records were kept in the course of regularly-conducted business activity or that it was the regular practice to make these reports.

(b) Of course, if the affidavit does not set forth facts as would be admissible in evidence, then the attached summaries could not be considered. Even assuming proper consideration of Ms. Marin’s affidavit, and use of the summaries under SCRA 1986, Rule 11-1006, these summaries prove nothing. They only show that on certain dates plaintiff had an appointment with a physician or practitioner and was either given a prescription, therapy or nothing. Typical of the entries are the following random samples:

2. 01-04-81 Unscheduled appointment — prescription given Rush-man, M.D.

28. 10-08-81 Appointment — given prescription Unidentified

24. 04-21-82 Scheduled appointment— lab work Mayfield, P.A.

49. 09-28-82 Appointment — given a prescription and referred to specialist Unidentified

35. 03-04-85 Physical Therapy Baum, LPN

What the visits were for is not known nor can we tell from the summaries. Defendants ask us to infer that all these visits related to plaintiff’s back condition, but the exhibit does not so reflect. Those visits could have been for anything. Of equal importance, there is no indication that the underlying medical records were made available to the trial court. I agree with plaintiff that the trial court “drew an unsupported inference that Mr. Archuleta was provided with medical treatment for his back injury at the visits to the prison infirmary alleged in Ms. Marin’s affidavit.” Even if such an inference could be drawn from the summaries, an equally plausible inference could also be drawn that, notwithstanding the numerous visits to the infirmary, plaintiff was denied treatment, a fact that he alleges in his verified complaint. Where two equally plausible inferences can be drawn, the issue should not be resolved by summary judgment.

2. Even if we could say defendants made a prima facie showing, plaintiff’s verified complaint was sufficient to raise issues of fact. Plaintiff does not deny that he made numerous visits to the infirmary. In fact, he alleges as much. What plaintiff is claiming is that he was denied medical treatment, or that it was unreasonably delayed, and that this amounted to deliberate indifference in violation of his constitutional rights. Even defendants concede plaintiff’s complaint contains allegations that he was subjected to deliberate indifference. A verified pleading may be equivalent to an affidavit if it meets the criteria of Rule 1-056(E). Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (CtApp.1970). Since plaintiff verified the complaint, which contains specific allegations of neglect, I believe it suffices to overcome summary judgment.

For these reasons, I respectfully dissent.