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Bregman-Rodoski v. Rozas6/22/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
Beverly Bregman-Rodoski sued Dr. Kevin Rozas for medical malpractice, alleging that Rozas negligently performed a hysterectomy and bladder-neck suspension surgery. Rozas moved for summary judgment on the grounds that Bregman-Rodoski failed to comply with the expert affidavit requirement. The trial court granted the motion, and this appeal ensued. For reasons that follow, we affirm.
To prevail on a motion for summary judgment, the movant must show that there is no genuine issue of material fact, and that the evidence of record, viewed most favorably to the non-movant, warrants judgment as a matter of law. A defendant can meet this burden simply by pointing to an absence of evidence supporting at least one essential element of the plaintiff's claim. "Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in light most favorable to the non-movant."
Viewed in this manner, the record demonstrates that when Bregman- Rodoski initially filed suit, she attached the affidavit of Dr. Richard Karol in which he stated that the care rendered by Dr. Rozas fell below the standard of care. Rozas's attorney subsequently deposed Karol, who acknowledged under oath that he no longer practiced surgery, that he had never performed the type of surgery at issue, and that he did not feel competent to do such procedure. Rozas's attorney then asked, " ased on the fact that it's been a number of years since you have been in the surgical field, . . . and based on the fact that you are not a . . . urologist[,] . . . how can you competently . . . testify that [Rozas's treatment] was beneath the standard of care?" Karol responded, "I should clarify that I'm making such statement not as an expert witness on this case[,] but only as a physician . . . t is my understanding and, in fact, my insistence . . . that I would not be contacted as an expert witness in this case because . . . I am not currently a practicing surgeon."
Based upon Karol's deposition testimony, Rozas moved for summary judgment, arguing that there was no competent expert testimony that his surgical treatment of Bregman-Rodoski fell below the standard of care, which is required to establish a medical malpractice claim. Rozas attached his own affidavit to the motion in which he avered that "at all times during treatment of . . . Bregman-Rodoski, exercised that degree of care, skill and diligence generally employed by the medical profession in Georgia."
Recognizing that she needed a competent expert witness, Bregman- Rodoski responded to Rozas's motion for summary judgment by providing the affidavit of Dr. Peter Bretan. This affidavit showed that Bretan reviewed the medical records from Rozas's treatment of Bregman-Rodoski. However, the affidavit did not attach certified copies of the medical records, and there are no such copies in the record. Rozas filed a reply brief, asserting that Bretan's affidavit lacked probative value because the requisite medical records had not been attached. The trial court agreed and granted Rozas's motion for summary judgment.
On appeal, Bregman-Rodoski contends that the trial court erred in ruling that the affidavit was insufficient. We disagree. Pursuant to OCGA ยง 9-11-56 (e), on motion for summary judgment, " worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." This code section further provides that
hen a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his respons
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