Jones v. Rodzewicz, 65036
| Decision Date | 04 March 1983 |
| Docket Number | No. 65036,65036 |
| Citation | 165 Ga.App. 635,302 S.E.2d 402 |
| Parties | JONES v. RODZEWICZ. |
| Court | Georgia Court of Appeals |
Charlie L. Parker, Jr., Lewis M. Groover, Jr., Durwood T. Pye, Atlanta, for appellant.
Y. Kevin Williams, Lynn A. Downey, Marietta, for appellee.
Appellant brought this medical malpractice action against five physicians who allegedly treated her in connection with gastrointestinal problems she was having in March 1977. Four of the physicians filed unopposed motions for summary judgment that were granted by the trial court. After notice and hearing, the trial court also granted appellee's motion for summary judgment. The motion was based upon appellee's affidavit, which sets forth his examination and treatment of appellant and states that "all of the above procedures for the treatment of [appellant's] ailment were in accordance with the practices of the medical profession generally." Appellant countered appellee's affidavit by timely filing the affidavit of a licensed physician who "has personal knowledge of the facts pertaining to this action ... has thoroughly reviewed all medical records ... for [appellant's] admissions ... and the affidavit of [appellee]," and who stated that the "care and treatment given [appellant] by [appellee] was not in accordance with that degree of care and skill ordinarily employed by the medical profession generally." The affidavit then sets forth the particulars in which appellee's treatment of appellant fell short of the proper standard of care. No records were attached to the affidavit.
Appellant argues on appeal that appellee's affidavit does not pierce the allegations of her complaint in that it fails to address each specific act of negligence, even though it does set forth the course of treatment and confirms that all acts were performed with the requisite degree of skill and care. However, we need not consider this question, since the affidavit offered by appellant clearly created a material issue of fact as to appellee's adherence to the proper standard of care in his treatment of appellant.
1. Appellee attacks appellant's affidavit on the ground that expert opinion testimony must be based on personal knowledge. However, an expert at trial may give his opinion based on facts not within his personal knowledge if the facts are set forth in the form of a hypothetical question. Evans v. DeKalb County Hosp. Auth., 154 Ga.App. 17, 18, 267 S.E.2d 319. Thus, expert opinion testimony is not objectionable merely because it is not based on facts within the personal knowledge of the witness.
2. In a medical malpractice action, in which the defendant is held to the higher standard of care within the profession, a plaintiff, in order to resist a defendant's motion for summary judgment based on his affidavit that his services were performed with the requisite degree of skill and care, must produce a physician's, or qualifying expert's, affidavit stating that the defendant did not treat or care for the plaintiff with that degree of skill and care exercised in the medical profession generally. Parker v. Knight, 245 Ga. 782, 267 S.E.2d 222; Payne v. Golden, 245 Ga. 784, 267 S.E.2d 211. However, the physician's affidavit offered by the plaintiff is not subject to objection because it is based on facts not within the personal knowledge of the affiant, since the affiant may be able to base an opinion on the same facts introduced hypothetically at trial.
3. Appellee argues that the affidavit of a physician setting forth an opinion based upon hearsay in the form of medical records or other material must attach "[s]worn or certified copies of all papers or parts thereof referred to in [the] affidavit." OCGA § 9-11-56(e) (Code Ann. § 81A-156). We agree with appellee that the affidavit offered by appellant should have included as attachments the records containing facts upon which the affiant relied. We also agree 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.
4. The affidavit offered by appellant, however, is based in part upon "the affidavit of [appellee]," which is a part of the record. An 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. Thus, some of the "facts" upon which the affiant based his opinions concerning appellee's treatment of appellant were before the trial court in the form of appellee...
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Jacobsen v. Muller, 72463
...or parts thereof referred to in an affidavit filed in support of or in opposition to a motion for summary judgment. Jones v. Rodzewicz, 165 Ga.App. 635, 302 S.E.2d 402 (1983), and Bush v. Legum, 176 Ga.App. 395, 336 S.E.2d 284 (1985), cited by appellant, are not applicable to the case befor......
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Landers v. Georgia Baptist Medical Center
...affidavit when based solely upon documentation which is neither a part of the record nor attached to the affidavit. Jones v. Rodzewicz, 165 Ga.App. 635(3), 302 S.E.2d 402. Secondly, the affidavit failed to "clearly identify the record matter upon which" the expert's opinion was based. Hayes......
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City of Winder v. McDougald, A01A2386.
...the affidavit is sufficient to create a genuine issue of material fact to preclude summary judgment. Cf. Jones v. Rodzewicz, 165 Ga.App. 635, 636-637(3), (4), 302 S.E.2d 402 (1983). 2. Winder argues that the trial court erred by applying the wrong legal standard and denying its motion for s......
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Washington v. Georgia Baptist Medical Center
...as any indication that this Court has formed any opinion as to the merits of this case. As this Court noted in Jones v. Rodzewicz, 165 Ga.App. 635, 638, 302 S.E.2d 402 (1983), "[i]n reaching this conclusion, we in no way intimate an opinion as to the likelihood or probability of appellant's......