Morris v. Young

• Decision Date: 23 August 1991
• Citation: 585 So.2d 1374
• Parties: Alfreda MORRIS v. Dr. Bruce YOUNG. 1901323.
• Court: Alabama Supreme Court

Page 1374

585 So.2d 1374

Alfreda MORRIS v. Dr. Bruce YOUNG.

1901323.

Supreme Court of Alabama.

Aug. 23, 1991.

John F. Kizer, Jr. of Kizer & Bennitt, Birmingham, for appellant.

Clarence Simmons, Jr. of Simmons, Brunson & McCain, Gadsden, for appellee.

HOUSTON, Justice.

Alfreda Morris sued Dr. Bruce Young, alleging dental malpractice. Ms. Morris's amended complaint alleged that Dr. Young "negligently provided ... dental services to [Ms.] Morris and negligently breached the acceptable standard of care in providing such dental services in that [Dr. Young] used excessive force in opening [Ms. Morris's] mouth wider than it was capable of opening during the extraction of one of [Ms. Morris's] wisdom teeth when [Dr. Young] should have only used such force to open [Ms. Morris's] mouth to a width that it was capable of opening."

Dr. Young filed an answer denying the allegations of the complaint and filed a motion for summary judgment, with his accompanying affidavit. In his affidavit, Dr. Young swore that at the time he provided dental services to Ms. Morris and at the time he was deposed that he was a duly licensed and practicing dentist, that he saw Ms. Morris in his office on March 14, 1988, and diagnosed her as having an abscessed wisdom tooth and gave her a prescription for antibiotics. On March 21, 1988, Dr. Young extracted Ms. Morris's lower wisdom teeth. Three days later, Ms. Morris returned to his office "complaining of elevated temperature and swelling." He prescribed antibiotics and referred her to Jacksonville Hospital. Dr. Young swore:

"I am not guilty of negligence or professional neglect in my treatment of [Ms.] Morris. At all times, I exercised such reasonable care, diligence, and skill as dentists in the same general line of practice ordinarily have and exercise in a like case.

"It is my opinion that the dental care and treatment administered by me to [Ms.] Morris was in accordance and conformity with the generally accepted standards, customs, and practice of other dentists. Further, I did not deviate from the standard of care of other dentists similarly situated in the national dental community under similar conditions in and about the treatment of [Ms.] Morris."

This was sufficient to shift the burden of moving forward to Ms. Morris. She recognizes this in her brief, for the opening sentence of her argument is as follows:

"The issue involved in this case is whether or not the Affidavit of Dr. Robert Fish was sufficient to satisfy the requirements of Rule 56 of A.R.C.P. when viewed in light of the other materials and documents submitted by [Ms. Morris] in opposition to Dr. Young's Motion for Summary Judgment."

In Black v. Reynolds, 528 So.2d 848, 849 (Ala.1988), this Court held:

"Once the movant supports his motion [for summary judgment] by affidavits, testimony, or other evidence, ... the adverse party may not rest upon the allegations or denials contained in his pleadings; he must respond and show that a genuine issue of material fact does exist.... Evidence offered in response to the motion, in the form of affidavits or otherwise, must be more than a mere verification of the allegations contained in the pleadings, and must present facts that would be admissible in evidence."

In Wozny v. Godsil, 474 So.2d 1078, 1080 (Ala.1985), this Court held:

"Generally, in order to overcome a defendant/physician's motion for summary judgment in a medical malpractice case, the plaintiff must submit competent expert medical testimony to prove that the defendant violated the standard of care set out in Code of 1975, § 6-5-484...."

The pertinent portion of § 6-5-484 is as follows:

"(a) In performing professional services for a patient, a ... dentist's duty to the patient shall be to exercise such reasonable care, diligence, and skill as ... dentists in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case."

In opposition to Dr. Young's motion for summary judgment, Ms. Morris offered the affidavits of Dr. G. Fred Atwell and Dr. Robert Jay Fish.

Dr. Atwell's deposition was factual. Dr. Atwell is a duly licensed and practicing oral surgeon in Anniston, Alabama. He examined Ms. Morris at Jacksonville Hospital, where she had been admitted for facial cellulitis by her family internist. He noted a marked left submandibular and submental space edema and some apparent sublingual space involvement. Ms. Morris exhibited marked trismuses with a mandibular opening of approximately 3-4 mm. He transferred Ms. Morris to Regional Medical Center, performed an incision drainage extraorally in the submandibular region and an intraoral incision in the sublingual space. Ms. Morris improved and was discharged on April 1, 1988. She exhibited a mandibular opening of 5-6 mm. Dr. Atwell's final diagnosis was "trismus secondary to an apparent acute dislocation of the meniscus," which Dr. Atwell swore was in no way contributed to by the treatment and care that Dr. Atwell had rendered to Ms. Morris. This in no way shows a genuine issue of material fact that negligence of Dr. Young proximately caused any "injury that Ms. Morris had sustained."

Dr. Fish's affidavit was anything but factual, but concluded:

"[T]here are reasonable grounds to believe, and it is his professional opinion based on a reasonable medical probability that Dr. Bruce Young, D.D.S., failed to meet reasonably required and expected standards of dental care and was negligent in his treatment of Alfreda Morris and that such deviation from the expected standards of care resulted in substantial losses to the claimant which probably were foreseeable, preventable and avoidable."

Therefore, if the trial court should have considered the opinion testimony of Dr. Fish, then it erred in entering the summary judgment.

Therefore, we examine Dr. Fish's affidavit. In it, he swore that he was a "medical expert" and a specialist in dentistry currently licensed and actively practicing in the State of Florida. Dr. Fish further swore that "no previous medical opinions rendered by him have been disqualified by any court of law." Dr. Fish further swore that his opinion was based upon "certain medical records" of Ms. Morris and "the subject dental chart of [Ms.] Morris and other information." The medical records, dental chart, and other information were not further identified by Dr. Fish in his affidavit. There were no properly authenticated medical records or dental chart of Ms. Morris before the trial court when it entered the summary judgment for Dr. Young. There was nothing else that Dr. Fish purported to rely upon in arriving at his previously quoted opinion.

Attached to the "Amended Motion in Opposition to Defendant's Motion for Summary Judgment" were unauthenticated medical records which were identified in the amended motion as...