Golden v. Payne

Court of Appeals of Georgia

Golden v. Payne

264 S.E.2d 292, 152 Ga. App. 800, 1979 Ga. App. LEXIS 3088

CourtCourt of Appeals of Georgia

DecidedDecember 5, 1979

Docket58827

StatusPublished

Cited by4 cases

This text of 264 S.E.2d 292 (Golden v. Payne) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Golden v. Payne, 264 S.E.2d 292, 152 Ga. App. 800, 1979 Ga. App. LEXIS 3088 (Ga. Ct. App. 1979).

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Opinion

Deen, Chief Judge.

In this medical malpractice case against an anesthesiologist for alleged injury to the plaintiffs mouth and teeth while inserting certain tubes, the defendant moved for summary judgment based upon his expert opinion expressed in the accompanying affidavit that any injury to plaintiffs person was not caused during the operation, and that she had at all times remained limp, no force had been used in the procedure, and the alleged injury to the teeth would have demanded application of a great amount of force against a profound resistance. “In those cases where the plaintiff must produce an expert’s opinion in order to prevail at trial, when the defendant produces an expert’s opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant.” Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45) (1978).

However, this court in construing the Howard case has now twice held that the expert opinion offered on behalf of the defendant physician may not be in the form of an affidavit attested by himself, and that in the absence of an additional expert opinion supporting his position the grant of summary judgment to the defendant is error. See Simons v. Conn, 151 Ga. App. 525 (260 SE2d 402) (1979), and Knight v. Parker, 152 Ga. App. 467 (1979).

Argued November 5, 1979 — Decided December 5, 1979 — Rehearing denied December 18, 1979 — Guy G. Michaud, Edward T. Walsh, for appellant. W. E. Zachary, Sr., for appellee.

The grant of summary judgment to the defendant was error.

Judgment reversed.

Shulman and Carley, JJ., concur.

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Deen, Chief Judge.

In this medical malpractice case against an anesthesiologist for alleged injury to the plaintiffs mouth and teeth while inserting certain tubes, the defendant moved for summary judgment based upon his expert opinion expressed in the accompanying affidavit that any injury to plaintiffs person was not caused during the operation, and that she had at all times remained limp, no force had been used in the procedure, and the alleged injury to the teeth would have demanded application of a great amount of force against a profound resistance. “In those cases where the plaintiff must produce an expert’s opinion in order to prevail at trial, when the defendant produces an expert’s opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant.” Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45) (1978).

However, this court in construing the Howard case has now twice held that the expert opinion offered on behalf of the defendant physician may not be in the form of an affidavit attested by himself, and that in the absence of an additional expert opinion supporting his position the grant of summary judgment to the defendant is error. See Simons v. Conn, 151 Ga. App. 525 (260 SE2d 402) (1979), and Knight v. Parker, 152 Ga. App. 467 (1979).

Argued November 5, 1979 — Decided December 5, 1979 — Rehearing denied December 18, 1979 — Guy G. Michaud, Edward T. Walsh, for appellant. W. E. Zachary, Sr., for appellee.

The grant of summary judgment to the defendant was error.

Judgment reversed.

Shulman and Carley, JJ., concur.

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264 S.E.2d 292, 152 Ga. App. 800, 1979 Ga. App. LEXIS 3088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/golden-v-payne-gactapp-1979.

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