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Ezor v. Thompson12/3/1999
POPE, Presiding Judge.
Elisa Ezor appeals the trial court's order granting summary judgment to the defendants, Keith Thompson, M. D., The Emory Clinic, Inc., and Emory Vision Correction Center, Inc., L.P., in the underlying medical malpractice action. Ezor contends that the trial court erred by applying the self-contradictory testimony rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) to the testimony of her expert. We agree and reverse.
Ezor contends that Dr. Thompson committed medical malpractice because her visual acuity was diminished after Dr. Thompson performed five operations on her eyes over three months. Ezor attached Dr. James C. Hays' affidavit to her complaint in compliance with OCGA ยง 9-11-9.1. In his affidavit, Dr. Hays stated that performing multiple automated lamellar keratoplasty ("ALK") and radial keratotomy ("RK") operations in such quick succession violated the applicable standard of care.
In his deposition Dr. Hays stated that the timing of the operations was against "conventional wisdom" and the "party line." Dr. Hays added that there was a possibility that Dr. Thompson was "way out ahead" of his peers. He further deposed that the second procedure, an ALK, was performed too soon after the first but that he was "not sure" that Ezor was injured as a result. In a second affidavit filed after his deposition and in response to defendants' motion for summary judgment, Dr. Hays stated that following his deposition he had examined and treated Ezor. He then reaffirmed his opinion that Dr. Thompson had violated the standard of care by not waiting three months before performing a subsequent operation on Ezor's eyes and that such violation caused permanent injury to Ezor's eyes.
The trial court determined that Dr. Hays' deposition contradicted his original affidavit and that his second affidavit submitted after his deposition did not adequately explain the contradiction. Reasoning that Dr. Hays's contradictory testimony was the only evidence in support of Ezor's malpractice claim, the trial court applied Prophecy and granted summary judgment to the defendants.
1. This Court has been inconsistent when deciding whether to apply the self-contradictory testimony rule to expert witnesses. At least six of our cases have either applied or refused to apply this rule to experts, thereby creating a conflict in the law. In 1995, this Court twice held that self-contradictory testimony rule does not apply to an expert's affidavit. Ewers, 217 Ga. App. 434; Flanagan, 218 Ga. App. 123. Ewers explained that an expert's affidavit is not the testimony of a party, and therefore a contradiction between that expert's testimony and the party's legal position was not necessarily fatal to the party's claims. 217 Ga. App. at 435. Flanagan held that an expert was not a party and therefore the rule did not apply. 218 Ga. App. at 126. In 1998, we again held that self-contradictory testimony rule did not apply to the testimony of a non-party witness, which in that case was an expert. Sawyer, 234 Ga. App. 56-57 (2).
Three months after Flanagan, without analysis or explanation, and without citation to either Ewers or Flanagan, this Court in Ford v. Dove applied the rule to an expert witness for the first time. 218 Ga. App. 828 (1). Two other cases simply followed Ford. Abdul-Majeed, 225 Ga. App. at 609; Tuten, 238 Ga. App. at 353-354 (2) (a).
Thus, this court must now resolve the question of whether the self-contradictory testimony rule should be extended to expert witnesses.
Our Supreme Court has never addressed this precise issue. Although it denied certiorari in three cases applying
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