Loving v. Nash, 73766
| Decision Date | 05 March 1987 |
| Docket Number | No. 73766,73766 |
| Citation | 182 Ga.App. 253,355 S.E.2d 448 |
| Parties | LOVING et al. v. NASH. |
| Court | Georgia Court of Appeals |
Joseph W. Watkins, Lance D. Lourie, Atlanta, for appellants.
Edward J. Bauer, Atlanta, William J. Deangelis, for appellee.
We granted this interlocutory appeal because it appeared the trial court erred in denying summary judgment to the defendant dentist, Dr. Loving.
Charlotte Nash sued Dr. Loving, Dr. Loving P.C., and Dr. John Doe I and P.C. in a complaint which alleged that defendants "negligently extracted two teeth [and] negligently prescribed various medication ... which proved harmful [and] negligently performed a root canal [and] negligently prescribed various medication ... which proved harmful [and as the result of which] ... plaintiff Nash received severe damage to her entire mouth in that it did become infected causing her to lose a number of teeth," all of which happenings she alleged constituted negligence, wilful and wanton negligence, and a battery.
The defendant submitted an affidavit swearing that he was engaged in the practice of oral and maxillofacial surgery, and on April 18, 1983, Ms. Nash He then averred that at all times material to his care and treatment of Ms. Nash, he complied with the appropriate standard of care which he expressly set forth. He moved for summary judgment.
By response, the plaintiff introduced the affidavit of a Dr. Kennedy, who averred: "I have reviewed the following medical and dental records which are enclosed with this Affidavit and incorporated herein by reference: [and he named the dental records of five dentists, including himself and Dr. Loving, a medical doctor, and Georgia Baptist Hospital Emergency Room, which reflected the care and treatment provided by each to Charlotte Nash]." He averred that he had reviewed the affidavit of Dr. Loving,
The defendant Dr. Loving disputed the sufficiency of Ms. Nash's expert affidavit on the basis that the "attached medical records" relied upon by Dr. Kennedy in stating his affidavit opinion, were uncertified. The trial court found defendant's objection to be a "supra-technical argument" which it was "not inclined to embrace." The trial court held that Dr. Kennedy's affidavit opinion was "not wholly confined to uncertified medical records," but was sufficient for the purpose of raising a genuine issue of fact because in it he based his opinions on his personal knowledge of the facts of the case and "goes on to state the particulars" in which he believes the defendants were negligent in compliance with Hayes v. Murray, 252 Ga. 529, 531, 314 S.E.2d 885. Held:
1. It is established in this state that in medical malpractice cases, the professional defendant may defend by asserting that in his treatment of the plaintiff, he complied with the specific standard of care in the profession; and if he does so, giving his own expert opinion or any others, then in order to prevail the plaintiff at the minimum must counter that expert opinion with a contrary expert opinion in her behalf, so as to create an issue of fact for a jury. Howard v. Walker, 242 Ga. 406, 249 S.E.2d 45. To be sufficient to controvert the defendant's expert opinion and create an issue of fact, the plaintiff's expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state "the particulars in which the defendant's treatment of the plaintiff was negligent." Crawford v. Phillips, 173 Ga.App. 517, 326 S.E.2d 593. OCGA § 9-11-56(e); Hayes v. Murray, supra. The requirement that the medical records or other material upon which the plaintiff's expert offers his controverting opinion, be certified or be a part of the record, arises out of the hearsay nature of the records or documents relied upon. Bush v. Legum, 176 Ga.App. 395, 397, 336 S.E.2d 284. See Jones v....
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Doctors Hosp. of Augusta, Inc. v. Bonner
...verdict. It is a standard which is subject to elucidation by experts as is any other professional standard. Loving v. Nash, 182 Ga.App. 253, 255(1), 355 S.E.2d 448 (1987); see Sparks v. Hoff, 186 Ga.App. 907, 908, 368 S.E.2d 830. Such expert opinion was provided and resolution of the differ......
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Austin v. Kaufman
...set forth how or in what way the defendant deviated from the parameters of the acceptable professional conduct. Loving v. Nash, 182 Ga.App. 253(1), 355 S.E.2d 448 (1987). During the trial of the case, plaintiffs' expert witness testified on direct examination that, during a procedure of thi......
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Vitner v. Miller
...of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom. [Cits.]" Loving v. Nash, 182 Ga.App. 253, 255, 355 S.E.2d 448 (1987). In the instant case, the affidavit of the appellee's medical expert also stated that the record fails to reveal any......
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CRISTER v. McFadden
...set forth how or in what way the defendant deviated from the parameters of the acceptable professional conduct. Loving v. Nash, 182 Ga.App. 253(1), 355 S.E.2d 448 (1987)." Austin v. Kaufman, 203 Ga.App. 704, 705(1), 417 S.E.2d 660 Kapsch v. Stowers at 767(1), 434 S.E.2d 539. Thus, it is ine......