Howard v. Atlanta Cardio Pulmonary Ass'n

321 S.E.2d 370, 171 Ga. App. 889, 1984 Ga. App. LEXIS 2355

• Court: Court of Appeals of Georgia
• Decided: July 11, 1984
• Docket: 68530
• Status: Published

Opinion

Birdsong, Judge.

In this medical malpractice case, the defendant doctor produced his own affidavit as expert describing the plaintiff’s condition and treatment, and further stating that in all of the care and treatment rendered by himself to the plaintiff, his care and treatment were standard procedures utilized by the medical profession generally under similar conditions and like surrounding circumstances.

The plaintiff produced a doctor’s expert affidavit detailing his own subsequent treatment of the plaintiff, but the doctor’s affidavit does not aver that the defendant doctor failed to exercise the standard of care in the profession or even was negligent or remiss in any respect.

Summary judgment was granted to the defendants and plaintiff appeals, contending it is unconstitutional to allow a defendant doctor to win summary judgment on his own affidavit only, and that the judgment was wrong. The appeal was filed in the Supreme Court because of the constitutional issue, but was transferred here by that court. Held:

This case is controlled by Payne v. Golden, 245 Ga. 784 (267 SE2d 211); Howard v. Walker, 242 Ga. 406 (249 SE2d 45); and Dobbs v. Cobb E.N.T. Assoc., 165 Ga. App. 238 (299 SE2d 141).

Decided July 11, 1984 Rehearing denied July 31, 1984 Jay W. Bouldin, for appellants. Lawrie E. Demorest, William H. Duckworth, Jr., for appellees. Paul M. Hawkins, amicus curiae.

Accordingly, because the plaintiff has produced no proper affidavit controverting the defendant’s expert affidavit evidence that he had complied with the professional standard of care, the summary judgment was correct.

Judgment affirmed.

Quillian, P. J., and Carley, J., concur.