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Nettles v. Laws

Court of Appeals of Georgia
Sep 25, 1984
322 S.E.2d 546 (Ga. Ct. App. 1984)

Summary

finding that expert affidavit had no probative value where it did not clearly identify the matter upon which it was based

Summary of this case from Chappell v. Shaheen

Opinion

68704.

DECIDED SEPTEMBER 25, 1984.

Medical malpractice. Glynn Superior Court. Before Judge Killian.

Irwin M. Ellerin, for appellants.

William H. Pinson, Jr., William P. Franklin, Jr., Lee C. Mundell, Wallace E. Harrell, for appellees.


James Allen Nettles filed a complaint against William Laws, M.D., for medical malpractice alleging negligent prescription of narcotics. This appeal follows the trial court's grant of summary judgment to Laws.

Appellant contends that the trial court erred by ruling that appellee's motion for summary judgment was unrefuted by expert testimony. Appellee supported his motion with his own affidavit as an expert stating that in treating and in ordering prescriptions for appellant he had "exercised the required degree of care, skill, diligence, and learning ordinarily possessed and exercised under similar circumstances by members of the medical profession and most particularly by physicians practicing in internal medicine." Appellee's affidavit was sufficient to establish grounds for summary judgment unless appellant refuted his testimony by an expert opinion that appellee's treatment was not reasonable under the circumstances. Hardinger v. Park, 159 Ga. App. 729 ( 285 S.E.2d 212) (1981); Gragg v. Spenser, 159 Ga. App. 525, 526 ( 284 S.E.2d 40) (1981).

To avoid summary judgment a plaintiff in a malpractice action must counter the affidavit of a defendant's expert with a contrary expert opinion. Jackson v. Gershon, 251 Ga. 577, 578 ( 308 S.E.2d 164) (1983). Appellant countered appellee's affidavit with the affidavit of a Dr. Vaughn, who stated that based on his review of certain records, he was of the opinion that appellant had failed to exercise the appropriate degree of care. The "records" reviewed by Dr. Vaughn referred to a deposition and exhibits purportedly taken in another civil action. These materials were not filed in this case, there was no stipulation permitting the materials to be used in this case, nor were the materials attached to Dr. Vaughn's affidavit. "An affidavit need not attach material upon which it is based if that material is part of the record in the case and is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based." Jones v. Rodzewicz, 165 Ga. App. 635, 637 (4) ( 302 S.E.2d 402) (1983); Hughey v. Emory Univ., 168 Ga. App. 239, 240 ( 308 S.E.2d 558) (1983). However, since the affidavit offered by appellant was based solely on information not part of the record in this case, the trial court correctly found that the affidavit had no probative value in response to the motion for summary judgment. See OCGA § 9-11-56 (e); Jones, supra at 636-37; Hayes v. Murray, 252 Ga. 529 ( 314 S.E.2d 885) (1984).

Therefore, as appellant failed to submit the expert testimony essential in a medical malpractice action to counter appellee's affidavit, and the record evidence does not raise a genuine issue of material fact, the trial court did not err by granting summary judgment. Childs v. Christmas, 171 Ga. App. 756 ( 320 S.E.2d 629) (1984).

Judgment affirmed. McMurray, C. J., and Deen, P. J., concur.


DECIDED SEPTEMBER 25, 1984.


Summaries of

Nettles v. Laws

Court of Appeals of Georgia
Sep 25, 1984
322 S.E.2d 546 (Ga. Ct. App. 1984)

finding that expert affidavit had no probative value where it did not clearly identify the matter upon which it was based

Summary of this case from Chappell v. Shaheen

rejecting affidavit where its underlying basis was unclear

Summary of this case from Chappell v. Shaheen
Case details for

Nettles v. Laws

Case Details

Full title:NETTLES et al. v. LAWS et al

Court:Court of Appeals of Georgia

Date published: Sep 25, 1984

Citations

322 S.E.2d 546 (Ga. Ct. App. 1984)
322 S.E.2d 546

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