Messex v. Lynch, 42042

• Decision Date: 27 November 1985
• Docket Number: No. 42042,42042
• Citation: 255 Ga. 208,336 S.E.2d 755
• Parties: MESSEX v. LYNCH.
• Court: Georgia Supreme Court

Page 755

336 S.E.2d 755

255 Ga. 208

MESSEX v. LYNCH.

No. 42042.

Supreme Court of Georgia.

Nov. 27, 1985.

M. Francis Stubbs, Stubbs & Associates, Reidsville, for joyce messex.

William P. Franklin, Jr., Thomas A. Withers, Olive, Maner & Gray, Savannah, for Lawrence J. Lynch.

SMITH, Justice.

The appellant, Joyce Messex, developed a lump on her neck and her physician referred her to the appellee, Lawrence J. Lynch, M.D., to have the lump surgically excised so that it could be checked for malignancy. The appellee performed a posterior cervical node biopsy upon the appellant. Thereafter the appellant brought an action for malpractice alleging that during the course of the surgery that the appellee negligently severed her right accessory nerve in her neck causing her permanent injury. The appellee denied any negligence on his part, and moved for summary judgment, supporting his motion with his own affidavit. The appellant filed her own affidavit in which she stated that when the appellee operated on her that the area was not fully anesthetized and that she felt "a sharp, deep pain" and that she "involuntarily jerked upward." After the surgery her right arm was "numb and partially disabled." She also included the affidavit of her physician. The trial court granted the motion, and on appeal the Court of Appeals affirmed. Messex v. Lynch, 173 Ga.App. 338 (326 S.E.2d 492) (1985). We granted the appellant's writ of certiorari and we reverse.

1. "[T]o avoid summary judgment a plaintiff in a malpractice action must counter a defendant's expert affidavit with a contrary expert opinion. See Howard v. Walker, 242 Ga. 406, 408, 249 S.E.2d 45 (1978)." Jackson v. Gershon, 251 Ga. 577, 578, 308 S.E.2d 164 (1983). Here the appellee filed an affidavit in support of his motion for summary judgment in which he stated that he performed the "posterior cervical node biopsy in accordance with standard surgical practice and in so doing I exercised the degree of care and skill that is generally employed by surgeons under similar circumstances and conditions.... The fact that the spinal accessory nerve is injured or damaged does not mean that the surgeon failed to exercise the degree of care and skill that is ordinarily employed by members of the medical profession under similar circumstances." In answer to interrogatories the appellee stated that "[t]he operation proceeded smoothly and without any known complication or unusual occurrence." He answered that he did not contend that some other person caused the injuries, and that "[i]t is not customary for accessory nerve damage to occur during a posterior cervical node biopsy; however, injury or damage to the spinal accessory nerve during a posterior cervical node biopsy does occur and is a recognized and accepted complication associated with this type of surgical procedure."

The plaintiff's expert affidavit which stated that it was based on his personal knowledge and belief gave his medical training and experience and indicated that he had performed cervical lymph node biopsies and that he was familiar with the surgical procedures and with the...