Summary
In Cummings v. Dudley, 60 Cal. 384, [44 Am. Rep. 58], the defendant had bought a stallion from the plaintiff at the agreed price of one thousand five hundred dollars — seven hundred and fifty dollars to be paid in money and seven hundred and fifty dollars in horses, to be appraised in a certain way.
Summary of this case from Gillin v. HopkinsOpinion
73144.
DECIDED OCTOBER 14, 1986.
Medical malpractice, etc. Macon Superior Court. Before Judge Gibson.
Karen Leslie Smith, Tom W. Daniel, for appellant.
Carr G. Dodson, for appellee.
Cindy Cummings voluntarily dismissed a suit she brought against A. Gatewood Dudley, M.D., alleging medical malpractice and breach of warranty when she became pregnant after Dudley's performance of a bilateral tubal ligation, a sterilization operation. Dudley then filed an equitable petition seeking an order allowing him and an expert witness the right to attend and witness the performance of a second tubal ligation scheduled to be performed after the birth of Cummings' child. Cummings counterclaimed, reasserting the grounds in her original complaint. The trial court granted Dudley's petition and no appeal is made from the order resolving the equitable matter here. The trial court ruled in favor of Dudley's motion for summary judgment as to Cummings' counterclaim and it is from this order that Cummings appeals.
We affirm the trial court's grant of summary judgment in favor of appellee. Appellant contends she is entitled to recover from appellee because she reasonably relied on a statement made by appellee during a post-operation examination that as a result of the tubal ligation, she was sterile. Appellee denied he made such statement. Although questions of fact exist whether appellee made the statement and whether both parties to the alleged contract of express warranty understood and agreed to the same thing in order for the warranty to arise, see Taratus v. Smith, 245 Ga. 107 ( 263 S.E.2d 145) (1980), these issues are mooted by OCGA § 31-20-5 of the Georgia Voluntary Sterilization Act, Ga. L. 1970, pp. 683-688 (OCGA § 31-20-1 et seq.), which provides that "[w]hen an operation shall have been performed in compliance with this chapter, no physician duly licensed without restriction to practice medicine and surgery in this state . . . shall be liable civilly or criminally as a result of such operation or participation therein, except in the case of negligence in the performance of such operation. . . ." OCGA § 31-20-5 thus bars claims based on contract, Shessel v. Gay, 139 Ga. App. 429 ( 228 S.E.2d 361) (1976), and all other claims, civil or criminal, except one based on the negligent performance of the sterilization operation.
Appellant failed to produce any affidavits or counter affidavits to rebut affidavits submitted by appellee and his expert witness affirming that appellee exercised that degree of care and skill ordinarily exercised and possessed by the medical profession generally. Thus, it is uncontroverted that there was no negligence in the performance of the sterilization operation here, see Nelson v. Parrott, 175 Ga. App. 307 (1) ( 333 S.E.2d 101) (1985), and that the sterilization procedure was performed in full compliance with the Act. See Shessel, supra. Therefore, appellant's claim, whether based on contract or some other negligence (as appellant argues), falls within the scope of OCGA § 31-20-5, and the trial court correctly granted summary judgment in favor of appellee. Nelson, Shessel, supra.
Judgment affirmed. Banke, C. J., and Birdsong, P. J., concur.