Simons v. Conn

• Decision Date: 26 September 1979
• Docket Number: No. 57597,57597
• Citation: 151 Ga.App. 525,260 S.E.2d 402
• Parties: SIMONS et al. v. CONN et al.
• Court: Georgia Court of Appeals

Page 402

260 S.E.2d 402

151 Ga.App. 525

SIMONS et al. v. CONN et al.

No. 57597.

Court of Appeals of Georgia.

Argued April 4, 1979.

Decided Sept. 26, 1979.

Thomas L. Thompson, Jr., Columbus, for appellants.

S. E. Kelly, Jr., Phillip J. Johnson, Columbus, for appellees.

SMITH, Judge.

Appellant Simons brought this medical malpractice action against appellees, alleging a negligent failure to detect that he had suffered a broken back in a work-related accident. Mrs. Simons joined in the action, alleging a loss of consortium. Appellees moved for summary judgment. Appellee Conn, the medical doctor who treated appellant, submitted an affidavit stating that he exercised "that degree of care and skill exercised by the profession in general under similar conditions and like surrounding circumstances." However, Dr. Conn did admit in his affidavit that "if such a fracture was present at the time the x-rays were made and studies by Deponent, Deponent simply overlooked the indication of any such fracture." Aside from Dr. Conn's own assessment of his performance in treating appellant Simons, which amounted to little more than a restatement of his pleadings, no medical testimony relating to due care on the part of Dr. Conn was submitted by either party. The trial court granted appellees' motion for summary judgment. We reverse.

1. In Howard v. Walker, 242 Ga. 406, 408, 249 S.E.2d 45 (1978), four Georgia Supreme Court Justices joined in the per curiam opinion containing the following statement: "We hold that in those cases where the plaintiff must produce an expert's opinion in order to prevail at trial, When the defendant produces an expert's opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant . . ." Id. at 408, 249 S.E.2d at 46. (Emphasis supplied.) As applied to the issue of due care in a malpractice case, we construe the phrase "produce an expert's opinion" to require the defendant doctor to submit a medical opinion other than his own. If the defendant produces this testimony and the plaintiff fails to produce a contrary expert opinion, the defendant is entitled to summary judgment under the rule set forth in Howard v. Walker,supra. However, we do not construe Howard v. Walker, supra, to stand for the proposition that a medical doctor in a malpractice case is entitled to summary judgment on the basis of his own affidavit stating that he exercised due care in the diagnosis and treatment of an illness or injury. We simply cannot conceive of a case in which the self-serving declarations of a defendant, testifying as his own expert by affidavit, would be sufficient to sustain a motion for summary judgment and thereby deprive an injured party of his day in court.

In the instant case, the only testimony introduced by appellees on the question of due care was that of Dr. Conn himself. Dr. Conn's affidavit in support of the motion for summary judgment contains the following explanation of the procedures he followed in diagnosing appellant's injury: "Deponent says that he took the x-rays of Plaintiff's rib cage and of his lumbar spine and placed them upon a viewbox, as is the general custom and practice of the medical profession while trying to interpret or evaluate what is shown by the x-ray, and that he did for several minutes closely examine the x-rays. Deponent further says that it is not an uncommon occurrence that doctors while exercising that degree of care and skill accepted and followed by the medical profession in general under similar conditions and like surrounding circumstances, to overlook or be unable to detect the fracture of a bone. Deponent says that his taking an x-ray of the lumbar spine of Plaintiff and Deponent's use of a viewbox to study and evaluate the x-rays, and the time element devoted to the study of said x-rays for their interpretation and evaluation, did conform to that degree of care and skill exercised by the profession in general under similar conditions and like surrounding circumstances." It is apparent that this portion of Dr. Conn's affidavit contains both a non-expert, factual account of what transpired in his office and an "expert" opinion concerning the exercise of reasonable care by Dr. Conn. We cannot agree with appellees' assertion that this "expert" opinion entitled them to summary judgment. We believe, to the contrary, that Dr. Conn's factual assertions and "expert" opinion are so inextricably woven that the latter is without independent significance. The trial court erred in granting appellees' motion for summary judgment on the basis of Dr. Conn's...