dissenting.
While I have no disagreement with the majority’s conclusion that plaintiff’s affidavits were not timely presented, the majority have incorrectly concluded that the affidavits submitted by the defendants in support of their motions for summary judgment purposes are “adequate for summary judgment purposes.” There was, therefore, no necessity for the plaintiff to file any affidavits.
The moving party in a summary judgment action is required to present evidence showing that no genuine issue of material fact exists, and until the moving party meets this burden, it is not necessary for the court to determine the legal sufficiency of the evidence presented by the non-moving party. In order for the moving party to meet this burden in a medical malpractice action, he must first present evidence of the medical standards of care adhered to by physicians in the community under similar circumstances and then that he did not deviate from these standards.
It is undeniable that upon the trial of the case the plaintiff would have had the burden of proving a prima facie case of malpractice before the defendants would be required to present evidence. The Supreme Court of Iowa, in Daboll v. Hoden, Iowa, 222 N.W.2d 727, 734 (1974), said:
“A prima facie case of medical malpractice must normally consist of evidence which establishes the applicable standard of care, demonstrates that this standard has been violated, and develops a causal relationship between the violation and the harm complained of.... ”
Here, however, the defendants seek to short-cut the usual trial processes and avoid the expense and vexation of a jury trial by obtaining a summary judgment absolving them of all liability. They have presented affidavits which they claim show conclusively, as a matter of law, that there was no negligence on their part. This means that we must consider the kinds of proof under that portion of Rule 56(e), W.R.C.P., which provides:
“... When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial....”
Certain principles basic to the determination of motions for summary judgment are well established by this court: Summary judgment is a drastic remedy that is not frequently granted; furthermore, it is not appropriate, as a general rule, in negligence actions. Keller v. Anderson, Wyo., 554 P.2d 1253, 1257 (1976). This general principle particularly applies to malpractice actions brought against professionals. DeHerrera v. Memorial Hospital of Carbon County, Wyo., 590 P.2d 1342, 1345 (1979), citing Holl v. Talcott, Fla., 191 So.2d 40, 46 (1966).
*755If summary judgment is granted by the trial judge and the decision is appealed to this court, we must review the entire record in order to determine whether summary judgment was proper. Wyoming Ins. Dept. v. Sierra Life Ins. Co., Wyo., 599 P.2d 1360, 1363 (1979). Our obligation is the same as that of the trial court. Minnehoma Financial Co. v. Pauli, Wyo., 565 P.2d 835, 838 (1977). In addition, the appellee has a heavy burden in defending a summary judgment because this court must “look at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from facts contained in affidavits, exhibits, depositions and testimony.” Bancroft v. Jagusch, Wyo., 611 P.2d 819, 820 (1980).
We have also held that the party seeking the summary judgment has the burden of demonstrating that there is no genuine issue of material fact and that, as a matter of law, the movant is entitled to judgment; this is true regardless of which party seeks the summary judgment. Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352 (1974). In Moore v. Kiljander, Wyo., 604 P.2d 204, 207 (1979), it was taken for granted that “the movant has the initial burden of presenting a prima facie case,” and it is only after that is done that the opposing party can no longer rely upon his pleading and the burden is shifted to him to show the existence of “a genuine issue of material fact.” It follows that before it becomes necessary for the court to determine the legal sufficiency of the plaintiff’s evidence, this court must first determine that the defendants have met the burden imposed upon them. I therefore find it necessary to look to the decisions of other courts to determine the application of that principle in malpractice cases.
The problem confronting a defendant who moves for summary judgment has been well summarized by the Florida Court of Appeals in Matarese v. Leesburg Elks Club, Fla.2d DCA, 171 So.2d 606, 607-608 (1965):
“It must be remembered that a motion for a summary judgment puts the mov-ant in the unenviable position of having to prove a negative, the non-existence of an issue. He does not sustain this burden by showing that up until the time of his motion his adversary has not produced sufficient evidence in support of his pleadings to require a trial.
* * * * * *
“A motion for a summary judgment does not create an T move — now you prove situation.’ The initial burden of proof is on the movant and absent his sustaining it he is not entitled to a summary judgment regardless of whether the opposing party comes forward with any proof or not.”
Matarese was not a malpractice case, but the principle therein announced was carried forward by the Supreme Court of Florida in Holl v. Talcott, supra. In that case, as in the ease at bar, both parties had submitted lengthy testimony concerning the facts of the treatment and the trial court had held that the affidavit submitted in behalf of plaintiff was legally insufficient. The supreme court stated:
“... As this court and other appellate courts have repeatedly held, the burden of proving the absence of a genuine issue of material fact is upon the moving party. Until it is determined that the mov-ant has successfully met his burden, the opposing party is under no obligation to show that issues do remain to be tried. [Citation omitted.]
“This means that before it becomes necessary to determine the legal sufficiency of the affidavits or other evidence submitted by the party moved against, it must first be determined that the movant has successfully met his burden of proving a negative, i. e., the non-existence of a genuine issue of material fact. [Citation omitted.] He must prove this negative conclusively. The proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party. [Citation omitted.]” 191 So.2d at 43.
Delaware’s Superior Court Civil Rule 56(e) is identical with Wyoming’s. In Hurtt *756v. Goleburn, Del., 330 A.2d 134, 135 (1974), the supreme court of that state held that in a malpractice case the rule requires a showing,
“(a) as to the relevant medical standards adhered to by physicians in good standing in the community under like circumstances, and, (b) that defendant’s conduct was in conformity with those standards. .. If the conduct is shown to have conformed to the standards, then the burden shifts to plaintiff to demonstrate on the record that there is a genuine issue for trial as to either the standards or the conduct. Until then, the non-moving party is not obliged to show that issues remain to be tried. [Citations omitted.]”
Therefore, the threshold question in the case at bar should have been whether or not the movants have met their initial burden.
Considering the facts in the case at bar in the light most favorable to plaintiff, as we must, Bancroft v. Jagusch, supra, it appears that there are numerous occurrences that raise questions of negligence. As the majority have indicated, Diane Harris, plaintiff’s deceased wife, was readmitted to Memorial Hospital on May 17, 1976. After readmission, her condition continued to deteriorate until her death on August 1, 1976. Plaintiff alleges in his amended complaint that as a result of defendants’ negligence, the decedent suffered the following injuries:
“... physical injuries and damages, emotional suffering and distress; pain; suffering; unnecessary and unearned expenses paid to the defendants; additional medical expenses; loss of earnings; diminution of earning capacity; loss of diminution of the enjoyment of life; and was otherwise injured in the premises.”
The complaint further alleges:
“The negligence of the defendants, jointly and severally, proximately caused the injuries and damage specified above and caused the death of DIANE G. HARRIS on August 1, 1976.”
In Harris v. Grizzle, Wyo., 599 P.2d 580 (1979), we concluded that the complaint in the case at bar gave adequate notice to the defendants of the charges and that it is sufficient in all respects. As we stated:
“... The complaint states as to each of the defendants that there were failures: (1) to properly diagnose the deceased’s condition; (2) to render careful and prudent treatment; (3) to examine deceased carefully; (4) to attend to deceased properly; (5) and to properly supervise associates, assistants and agents under their control in deceased’s care and treatment....” 599 P.2d at 583.
Review of the affidavits submitted by each of the movants reveals that the affidavits do not identify what action a physician or hospital in good standing in the community would undertake under similar circumstances. While a few of the affidavits discuss in detail what actions were taken by the various defendants, none of the affidavits provides a standard by which to measure these actions.
A review of the affidavits points out the deficiencies. In support of his motion for summary judgment, defendant Grizzle submitted his own affidavit. In this affidavit, defendant Grizzle states that he is a neurosurgeon and that he limits his practice to the treatment of neurological deficiencies. He goes on to state that on May 14, 1976, Diane Harris came to his office, and at that time he examined her but “found no neurological treatable condition in my area of specialty.” He then followed her condition while she was hospitalized so that if neurological changes be apparent, he could act. He relates the treatment which he observed; that he was not requested to render any medical treatment; and that as of his last visitation on June 11, 1976, she had no treatable neurological condition.
This general and conclusory language is not sufficient to sustain defendant Grizzle’s burden. The affidavit generally states what the defendant did; however, the affidavit does not provide a standard by which to measure these actions. Because the prevailing standard of care required of a referring physician is not discussed, I do not see how this court can conclude that as a matter of law defendant Grizzle was not negli*757gent. Hurtt v. Goleburn, supra, 330 A.2d at 135.
In support of his motion to dismiss, defendant Flick filed supporting affidavits given by himself, Roger Radomsky, the Laramie County Coroner, Drs. Richard Noble and C. Rogers Wise, anesthesiologists, Dr. R. G. McCleery, the pathologist who performed the autopsy on Diane Harris, and Dr. Greer, a general surgeon.
Dr. Flick specifically sets out what actions he took both times that he saw the decedent in the hospital emergency room and what his conclusions were. He also states that in his opinion “expressed with reasonable medical and scientific probability,” Diane Harris’ death
“a. ... was due to an acute complete or partial obstruction of her airway due to laryngospasms, food particles or aspiration of gastric contents during or immediately following the feeding by Mrs. Rivera, or a combination of any one or more of these factors superimposed on the pre-existing brain damage due to the automobile accident in 1975.”
Defendant Flick concludes his affidavit by stating:
“h. The examination, diagnosis, care and treatment rendered by me to Diane Harris on the two occasions I saw her, namely, July 9, 1976, and July 23, 1976, were acceptable and met the standards of skill, care and knowledge for physicians in my medical specialty treating patients such as Diane Harris under the same or similar circumstances in 1976 in Cheyenne, Wyoming, or elsewhere for board-certified general surgeons.
“i. I specifically deny that my examination, diagnosis, care and treatment of Diane Harris as above-described was negligent or fell below the requisite standards of skill, care and knowledge possessed and exercised by physicians in the same field of practice in 1976 under the same or similar circumstances in Cheyenne, Wyoming or elsewhere for board-certified general surgeons.”
This general denial of negligence is not sufficient. This court has no standard to use to determine whether or not defendant Flick’s actions were in accordance with the accepted standard of care under similar circumstances. We know what he did, but cannot determine if these actions were proper. Furthermore, while defendant Flick denies that Diane’s death was a result of his care, plaintiff is not only suing because of the death of his wife but also because of the physical suffering that she was forced to endure.
The affidavit given by Roger Radomsky, the Laramie County Coroner, is of no help in establishing the standard of medical care. Mr. Radomsky merely describes the fact that Diane Harris had already been pronounced dead at the time that he arrived at her residence and then he discusses the interview he had with Diane Harris’ mother.
The affidavits of Dr. Noble, Dr. Wise and Dr. McCleery are virtually identical to each other and the last section of defendant Flick’s affidavit. In these affidavits, the affiants generally describe their knowledge of acute complete or partial obstruction of the airway and they conclude by stating what they considered to be the cause of death and excluding the gastrostomy tube as such a cause:
“10. The following are my opinions expressed with reasonable medical and scientific probability:
“a. The immediate cause of death of Diane Harris on August 1, 1976, was due to an acute complete or partial obstruction of her airway due to laryn-gospasms, food particles or aspiration of gastric contents during or immediately following the feeding by Mrs. Rivera, or a combination of any one or more of these factors superimposed on the pre-existing brain damage due to the automobile accident in 1975.
“b. The acute obstructing of Diane Harris’s airway occurred on August 1, 1976, during or immediately following the time she was fed and immediately prior to her death.
*758“c. The immediate cause of death of Diane Harris was not pneumonia or the gastrostomy tube or the fact that there was drainage around the gastrostomy tube.”
Once again, these general statements are insufficient to meet defendant Flick’s burden. In passing, it is interesting to note that on Diane Harris’ death certificate, the cause of death was listed as pneumonia. In an affidavit submitted by the defendants, Memorial Hospital of Laramie County and the Trustees thereof, given by Dr. Donald B. Hunton, he stated that “[t]he onset of pneumonia probably occurred two or three days before her [Diane Harris’] death, and in her condition, she could not overcome the disease.”
The affidavit given by Dr. Dan Greer is no more helpful than the other affidavits in establishing the prevailing standard of medical care relevant to the circumstances of the case. His affidavit is very similar to the other affidavits submitted by defendant Flick. Dr. Greer ends his affidavit by concluding:
“g. Diane Harris died on August 1,1976, but in my professional opinion her death was not in any way associated with any substandard professional care on the part of Dr. Flick or, to my knowledge, by any other physician who was involved in her care and treatment.
“h. The examination, diagnosis, care and treatment rendered by Dr. Flick to Diane Harris on the two occasions Dr. Flick saw her, namely, July 9, 1976, and July 23,1976, were acceptable and met the standards of skill, care and knowledge for physicians in the same medical specialty as Dr. Flick treating patients such as Diane Harris under the same or similar circumstances in 1976 in Cheyenne, Wyoming, or elsewhere for board-certified general surgeons.”
Dr. Flick has failed to set forth the prevailing standard of care for a physician in good standing in the community and therefore summary judgment was improperly granted in his favor.
Defendant Sharp’s affidavit in support of his motion for summary judgment is also deficient in that it fails to set forth the relevant standard of care. Defendant Sharp generally describes his treatment of Diane Harris and then he concludes by stating:
“13. I know of no negligent, careless or wrongful acts or omissions by myself or any other professional, occurring at any time in the examination, diagnosis, care, treatment and attendance as a patient of Diane G. Harris. All of such diagnoses, care, treatment and attendance as a patient of said Diane G. Harris, or any other professional that I have personal knowledge of, were performed with the exercise of that degree of care, skill and learning ordinarily possessed and exercised by hospitals and physicians and surgeons practicing in Wyoming and elsewhere throughout the United States during the said period of time from May 17, 1976, through August 1, 1976. All of the examinations, diagnoses, care and treatment that I, myself, rendered to Diane G. Harris were, in my opinion, performed with the exercise of that degree of care, skill and learning ordinarily possessed and exercised by physicians practicing in my specialty in the period of May 17, 1976, to August 1, 1976.”
How can this court determine whether defendant Sharp did act in accordance with the prevailing standard of care as he claims to have done, if we do not know what the standard of care is?
Finally, I also believe that the affidavit given by Dr. Donald B. Hunton in support of the motion for summary judgment filed by the hospital, the administrator and the trustees of the hospital is insufficient to support summary judgment in favor of these defendants. Dr. Hunton generally stated:
“The nutrition prescribed and given her was proper for her condition, and her management, care and treatment by Memorial Hospital of Laramie County in this and all other respects was as good as, or *759better than, the care and skill ordinarily exercised in the same or similar circumstances by hospitals similarly situated and by hospitals in this community.”
Like all of the other affidavits, this affidavit does not provide a standard of medical care. A finding of no genuine issue of material fact cannot be based solely upon general and conclusory language.
I,therefore, would have reversed and remanded the proceedings with directions to proceed to trial.