Dobbs v. Cobb E.N.T. Associates, P.C., 64878
| Decision Date | 07 January 1983 |
| Docket Number | No. 64878,64878 |
| Citation | 165 Ga.App. 238,299 S.E.2d 141 |
| Parties | DOBBS et al. v. COBB E.N.T. ASSOCIATES, P.C., et al. |
| Court | Georgia Court of Appeals |
Carl Fredericks, Marietta, for appellants.
Robert G. Tanner, Atlanta, for appellees.
Medical Malpractice. Appellants instituted this action on April 8, 1981, against two treating physicians and the professional medical corporation for whom the physicians were employed. The complaint alleged negligent performance of medical services and breach of contract for medical services arising from the physicians' treatment of appellant R.L. Dobbs for facial injuries sustained in May, 1977. This action is apparently identical to an action for the same cause instituted against the same parties in 1979 and voluntarily dismissed by appellants in October, 1980, during the pendency of a motion for summary judgment filed by the defendants therein. A companion action was also filed against only one of the physicians in the Superior Court of Fulton County on March 14, 1979. The latter action was voluntarily dismissed by the plaintiffs therein on August 14, 1979.
On January 4, 1982, the defendants moved for summary judgment in the present action. In support of their motion, defendants offered affidavits of both treating physicians in which they set forth the details concerning their treatment of appellant R.L. Dobbs, with each stating that all services were rendered with "that degree of care and skill which was customarily and ordinarily employed by physicians of my specialty not locally but generally in 1977" and that "at all times I exercised a reasonable and competent degree of medical care and skill on the patient's behalf, and at no time did I depart from a reasonable and competent degree of care and skill in my treatment of this patient." On February 16, 1982, the trial court entered an order granting summary judgment to one of the physicians. No appeal was taken from that order.
Appellants offered no evidence, by way of affidavit or otherwise, to rebut appellees' motion. Instead, on February 24, 1982, appellants noticed the depositions of both treating physicians for February 26, 1982. Appellees' motion was set for hearing on March 3. At that hearing, appellees' counsel stated that he informed appellants' counsel that the physicians would not be available for deposition on February 26 but that he would make the physician who remained a party to the action available on the following day, which was reportedly not agreeable to appellants' counsel. There is no indication in the record that appellants' counsel attempted to go forward with the depositions on February 26. Instead, appellants filed a motion for continuance at the March 3 hearing. Appellants requested that the trial court invoke its discretion to postpone the hearing on appellees' motion until the depositions of the treating physicians could be accomplished. After hearing on both motions, the trial court denied appellants' motion to continue and granted appellees' motion for summary judgment based upon the unrebutted opinions of the physician's stating that all services had been performed with a reasonable degree of care and skill.
1. We find no error in the trial court's denial of appellants' motion to continue. Such a decision rests within the sound discretion of the trial judge and will not be reversed on appeal absent palpable abuse of that discretion. Code Ann. §§ 81-1419; 81A-156(f); Cole v. Jordan, 158 Ga.App. 200, 279 S.E.2d 497. As in Cole, the facts of this case clearly demonstrate that the appellants were not diligent in obtaining the desired discovery, Code Ann. § 81-1416, and their failure to obtain that discovery did not entitle them to a continuance of the hearing on the motion for summary judgment.
2. Appellant attacks the court's decision to award summary judgment to appellees on the ground that application of the rule enunciated in Howard v. Walker, 242 Ga. 406, 408, 249 S.E.2d 45, and Parker v. Knight, 245 Ga. 782, 267 S.E.2d 222, is unconstitutional in that it amounts to a denial of equal protection. The rule enunciated in those cases, and in numerous cases that have followed, see e.g., Payne v. Golden, 245 Ga. 784, 267 S.E.2d 211; Freeman v. Sreeram, 161 Ga.App. 594, 289 S.E.2d 524, provides that "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 ... 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, supra 242 Ga. p. 408, 249 S.E.2d 45. This rule, as applied to physicians, is premised on the well established principle that "expert medical evidence is required to establish negligence respecting the service a physician or a surgeon renders his patient... 'in the absence of expert testimony in behalf of the plaintiff in a malpractice case, the court is not justified in submitting the same to the jury.' " Shea v. Phillips, 213 Ga. 269, 271, 98 S.E.2d 552.
Appellants have provided no guidance or authority supporting their position that the application of this principle to summary judgment efforts in malpractice cases amounts to a denial of equal protection....
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...clearly that appellant was not diligent in obtaining the discovery for which it sought a continuance. Dobbs v. Cobb E.N.T. Assoc., 165 Ga.App. 238 (1), 299 S.E.2d 141 (1983). 2. There was no error in the failure of the trial judge to instruct the jury that consequential damages to appellee'......