 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Jones v. Orris6/27/2005
ch of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained."
In order to establish proximate cause by a preponderance of the evidence in a medical malpractice action, the plaintiff must use expert testimony because the question of whether the alleged professional negligence caused the plaintiff's injury is generally one for specialized expert knowledge beyond the ken of the average layperson. Using the specialized knowledge and training of his field, the expert's role is to present to the jury a realistic assessment of the likelihood that the defendant's alleged negligence caused the plaintiff's injury.
Expert testimony is also required in simple negligence cases where medical questions are raised that are beyond the common knowledge of a layperson. As this is such a case, expert testimony was required to establish that Southeast Permanente's negligence was the proximate cause of Jones's injuries.
In this case, Dr. Graham's second affidavit, filed in opposition to the motion for summary judgment, provides the only expert testimony on the issue of proximate cause. However, certified copies of the medical records he reviewed were not attached to his affidavit as required by OCGA ยง 9-11-56 (e). This omission does not, by itself, automatically preclude consideration of Dr. Graham's affidavit in our summary judgment analysis. "An affidavit need not attach the material upon which it is based if that material is part of the record in the case that is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based." As a result, the Supreme Court of Georgia has found that medical records produced and authenticated by a defendant physician in his deposition and appended to the deposition as an exhibit were part of the record and sufficient to support the opposing expert's affidavit. Although not expressly stated in its opinion, the Supreme Court presumably found that such documents were sufficiently authenticated as to be admissible in evidence, as only admissible evidence may be considered when evaluating a motion for summary judgment.
An expert's reliance on other evidence in the record, in addition to uncertified medical records, can sometimes render the affidavit sufficient for a trial court's consideration of whether summary judgment is appropriate. This is true only if the other evidence contains sufficient facts on which the expert can base his opinions. Other evidence properly in the record, but not expressly relied upon by the expert in forming his opinions, cannot be used to find a sufficient basis for the expert's opinions.
With these considerations in mind, we find that the following documents were sufficiently identified by Dr. Graham as forming the basis for his opinion and are properly in the record: (1) Southeast Permanente's records documenting Jones's August 20, 1999 visit to Dr. Koralewski that were produced by Dr. Koralewski during his deposition and attached as exhibits to his deposition; (2) Jones's medical records produced by Dr. Mitchell-Leef that were attached to and referenced in her deposition; and (3) the deposition of Dr. Mitchell-Leef.
After examining these documents properly in the record and relied upon by Dr. Graham, and viewing every inference in favor of Jones, we find that Dr. Graham's proximate cause opinions are not adequately supported. These documents provide no information about Jones's second visit to the emergency room, the timing of the discovery of her ruptured appendix, or the exploratory surgery that resulted in her appendectomy. While the patient history in Dr. Mit
Page 1 2 3 4 5 Georgia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|