Crawford v. Phillips
| Decision Date | 08 February 1985 |
| Docket Number | No. 69154,69154 |
| Citation | 326 S.E.2d 593,173 Ga.App. 517 |
| Parties | CRAWFORD v. PHILLIPS. |
| Court | Georgia Court of Appeals |
Thomas F. Jarriel, Macon, for appellant.
C. Ashley Royal, Athens, for appellee.
Appellant initiated the instant medical malpractice civil action against appellee-physician. Appellee subsequently filed a motion for summary judgment. The motion was supported by appellee's affidavit as an expert, wherein he averred that, in treating appellant, he had exercised the proper and reasonable degree of care and skill employed by the medical profession generally under similar conditions and like surrounding circumstances.
In opposition to appellee's motion for summary judgment, appellant submitted the affidavit of Dr. Jacobs. Dr. Jacobs' affidavit stated that it was based upon the following: His personal knowledge derived from an examination of the hospital's and doctor's records and notes pertaining to the treatment of appellant; photographs of appellant's wrist; and appellant's patient history. It was Dr. Jacob's opinion that appellee had not exercised the proper and reasonable degree of skill employed by the medical profession generally under similar conditions and like circumstances. In his affidavit, Dr. Jacobs also stated the particulars in which he believed that appellee had been negligent. Uncertified and unsworn copies of the documents and photographs referred to in Dr. Jacobs' affidavit were attached thereto.
The trial court granted appellee's motion for summary judgment, on the ground that the affidavit filed in opposition to appellee's motion was insufficient under OCGA § 9-11-56. Specifically, the trial court found that Dr. Jacobs had based his conclusions on medical records not in evidence, and that there were no facts in the record or within the affiant's own personal knowledge upon which his statements could have been supported.
1. The rule to be applied in determining the sufficiency of the affidavit of appellant's expert is that "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith...." OCGA § 9-11-56(e). As previously stated, all of the medical records and photographs referred to in appellant's expert's affidavit were unsworn and uncertified copies. It is clear that "if the affidavit was based solely upon the facts contained in the medical records that are not part of the record in this case, it would have no probative value in response to the motion for summary judgment." Jones v. Rodzewicz, 165 Ga.App. 635, 637, 302 S.E.2d 402 (1983).
However, appellant contends that Dr. Jacobs' affidavit also was based in part upon the appellee's affidavit, which is part of the record. In Jones v. Rodzewicz, supra at 637(4), 302 S.E.2d 402, this court held that "[a]n 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." (Emphasis supplied.) In the case at bar, even assuming that appellee's affidavit does set forth some facts upon which Dr. Jacobs could have based his opinion concerning appellee's treatment of appellant, Dr. Jacobs' affidavit neither indicates that his opinion was based upon appellee's affidavit, nor makes mention of an examination of that affidavit. Thus, we conclude that "[t]o the extent that [appellant's] expert['s] affidavit is based on the medical records [or facts contained in appellee's affidavit], it lacks probative value in that the affidavit neither attaches medical records which are part of the record in this case nor does it 'clearly identify the record matter upon which it is based.' " Hayes v. Murray, 252 Ga. 529, 530-531, 314 S.E.2d 885 (1984). Compare Jones v. Rodzewicz, supra 165 Ga.App. at 636, 302 S.E.2d 402, wherein plaintiff-appellee's affidavit provided that the affiant had " 'thoroughly reviewed all medical records ... and the affidavit of [appellee]....' " (Emphasis supplied.)
Relying upon Hayes v. Murray, supra, appellant further asserts that summary judgment was erroneously granted because Dr. Jacobs' affidavit was based, in part, upon his personal knowledge, and the affidavit further stated the particulars in which Dr. Jacobs believed appellee had been negligent. In Hayes, the Supreme Court held that where, in the plaintiff's expert's affidavit, "the affiant also states that his opinions are based, at least in part, on his personal knowledge of the facts of the case, and the affiant goes on to state the particulars in which he believes the defendants were negligent," the affidavit is sufficient to raise a genuine issue of material fact and preclude the trial court's grant of summary judgment. (Emphasis supplied.) Hayes v. Murray, supra 252 Ga. at 531, 314 S.E.2d 885. In the present case, however, while Dr. Jacobs' affidavit does delineate the...
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Ezor v. Thompson
...medical records upon which the expert relied were attached to the affidavit or contained in the record. Crawford v. Phillips, 173 Ga.App. 517, 518-519, 326 S.E.2d 593 (1985). In Division 2(b) this Court stated thereafter that Prophecy applied to the second expert's affidavit. This statement......
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Landers v. Georgia Baptist Medical Center
...3. The trial court followed applicable law in finding that the plaintiff's faulty affidavit had no probative value. Crawford v. Phillips, 173 Ga.App. 517, 518, 326 S.E.2d 593; Childs v. Christmas, supra, 171 Ga.App. at p. 758, 320 S.E.2d 629; Hayes v. Murray, supra, 252 Ga. p. 530, 314 S.E.......
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Padgett v. Baxley and Appling County Hospital Authority, A12A1902.
...clearly states that the opinions are based on “review” of the documentation listed in her affidavit. See Crawford v. Phillips, 173 Ga.App. 517, 518(1), 326 S.E.2d 593 (1985). It is well established that an affidavit purporting to rely on papers or other materials not attached to the affidav......
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McClure v. Clayton County Hosp. Authority
...records neither attached nor otherwise clearly identified. We found the affidavit lacking in probative value. Accord Crawford v. Phillips, 173 Ga.App. 517, 326 S.E.2d 593; Hayes v. Murray, 252 Ga. 529, 530, 314 S.E.2d 885. Hence, we find the affidavits of the two chiropractors lacking in pr......