Hayes v. Murray

• Decision Date: 24 April 1984
• Docket Number: No. 40660,40660
• Citation: 314 S.E.2d 885,252 Ga. 529
• Parties: HAYES et al. v. MURRAY et al.
• Court: Georgia Supreme Court

Page 885

314 S.E.2d 885

252 Ga. 529

HAYES et al. v. MURRAY et al.

No. 40660.

Supreme Court of Georgia.

April 24, 1984.

Rehearing Denied May 15, 1984.

Adele P. Grubbs, Marietta, for Audrey S. Hayes, Extrx., et al.

Y. Kevin Williams, Marietta, Terrance S. Sullivan, Hart & Sullivan, Atlanta, for Darrell W. Murray et al.

Regan W. Dean, Amicus Curiae.

MARSHALL, Presiding Justice.

This is a medical-malpractice case which is here on certiorari. Hayes v. Murray, 169 Ga.App. 78, 311 S.E.2d 477 (1983). It concerns the sufficiency of an expert affidavit submitted by the plaintiff in opposition to the defendants'motions for summary judgment.

This is a wrongful-death action against four physicians brought by the plaintiff individually and as executrix of her husband's estate. The plaintiff alleges that the defendants were negligent in their treatment of her husband. In support of their motions for summary judgment, the defendants, as experts, submitted their own affidavits, in which they opined that they were not negligent in their treatment of the deceased. In opposition to the defendants' motions for summary judgment, the plaintiff submitted the affidavit of a physician in which he testified that, based on his personal knowledge of the facts in this case as well as his review of the medical records, it was his opinion that the defendants were negligent in their treatment of the deceased. In this affidavit, the physician states the particulars in which he believes the defendants were negligent.

Approximately one month after the summary-judgment hearing, the plaintiff sought to file an amendment to this affidavit. In this amendment, the affiant states that opinions expressed in the affidavit are based on his review of medical depositions taken in this case, as well as office medical records of the deceased, which are attached as an exhibit to the amendment. However, the trial judge refused to allow the amendment to the affidavit, and summary judgment was granted to the defendants based on the insufficiency of the original affidavit.

The rule, as applied by the Court of Appeals, is that, " '[a]n affidavit made in opposition to a motion for summary judgment not served at least one day before the hearing is barred by the Civil Practice Act from consideration as evidence unless the record discloses [that] the trial court, in the exercise of its discretion, has allowed the affidavit to be served and considered.' Malone v. Ottinger, 118 Ga.App. 778, 779(3) (165 S.E.2d 660) (1968)." Talley v. City Tank Corp., 158 Ga.App. 130, 133(2), 279 S.E.2d 264 (1981). The Court of Appeals concluded that the trial court is, likewise, vested with discretion in deciding whether to allow untimely amendments to affidavits. The Court of Appeals held that the trial court did not abuse its discretion in refusing to allow the amendment to the affidavit here.

As to the sufficiency of the plaintiff's expert affidavit, the rule--as contained in CPA § 56(e) (OCGA § 9-11-56(e) and as applied in Hughey v. Emory University, 168 Ga.App. 239, 308 S.E.2d 558 (1983) and Jones v. Rodzewicz, 165 Ga.App. 635, 302 S.E.2d 402 (1983)--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."

In Jones v. Rodzewicz, supra, as here, the plaintiff in a medical-malpractice case submitted the affidavit of a physician in opposition to a defendant's motion for summary judgment, and in the affidavit the physician stated that his opinions were based on his personal knowledge of the facts of the case as well as his review of the medical records. As...