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Wasdin v. Mager8/3/2005
e more than a mere or bare possibility that the alleged negligence caused the plaintiff's injury. . . . Instead of speaking in terms of possibilities, the expert's testimony must show as an evidentiary threshold that the expert's opinion regarding causation is based, at the least, on the determination that there was a reasonable probability that the negligence caused the injury. . . . The expert also meets this requirement by stating that the only apparent cause of the plaintiff's injury was the defendant's action.
(Citations and punctuation omitted.) Id. at 501.
Here Dr. Dohn testified by affidavit that based on (a) the defendant physicians' failure to inspect or treat the open left fallopian tube during the second sterilization and (b) the results of his dye test showing dye freely spilling from the left fallopian tube but not from the right, the defendant physicians failed to exercise the standard of care needed to treat Wasdin, which "proximately caused Plaintiff to experience a second unplanned pregnancy and the birth of a fourth child." He affirmed this testimony in his deposition, testifying - within a reasonable degree of medical probability - that the pregnancy occurred, not through the completely occluded right tube, but through the open left tube as a result of the physicians' not cauterizing this tube during the second sterilization, and that had the physicians addressed the left fallopian tube, "she wouldn't have had a fourth child." On cross-examination, he repeated "to a reasonable degree of medical certainty that the failure to cauterize the left tube increased the risk of [Wasdin] becoming pregnant," which risk he described as "a lot higher."
Dr. Dohn's testimony, much of which was couched in terms of reasonable medical probabilities and certainties, sufficed to show that the defendant physicians' alleged negligence proximately caused the pregnancy at issue. Dr. Mager's arguments regarding additional statements Dr. Dohn made on cross-examination regarding probabilities are better made to a jury, not to an appellate court considering a summary judgment order. The trial court did not err in denying Dr. Mager's motion for summary judgment on this issue.
Judgments affirmed. Miller and Bernes, JJ., concur.
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