Poss v. Callaway Et Al., 185 Ga. App. 247, 363 S.E.2d 782 (1987)
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Summary
Judgments reversed. Banke, P. J., and Benham, J., concur.
Summary
Judgments reversed. Banke, P. J., and Benham, J., concur.
Text
James Lee Ford, for appellant.
Appellees-defendants in this medical malpractice action are Dr. E. Jordan Callaway and his physician's assistant, Mr. Randy Riner. Appellant-plaintiff's complaint alleged appellees' negligence and negligence per se in failing to diagnose and to treat his appendicitis. Appellees answered and subsequently moved for summary judgment, supporting their motion with their own affidavits. As to the negligence claim, the trial court granted appellees' motion, finding that appellant had failed to introduce expert testimony sufficient to counter appellees' affidavits. As to the negligence per se claim, the trial court also granted appellees' motion, finding no evidence that any asserted act of appellees' negligence per se was the proximate cause of the alleged misdiagnosis and improper treatment and, therefore, of appellant's injury. Appellant appeals from the order granting summary judgment in favor of appellees.
1. Construing the evidence most strongly for appellant would show the following: Upon discovering that his regular physician was unavailable, appellant went to appellees' office on a Friday afternoon, expressing complaints of abdominal pain and a belief that he had appendicitis. Appellant, who had never been to appellees' office before, was seen only by appellee Riner, the physician's assistant. Appellee Riner examined appellant and diagnosed him as suffering from epididymitis. Appellee Riner then gave appellant a prescription, filling in a blank form which had been pre-signed by appellee Dr. Callaway. At no point did appellee Riner ever inform appellant that he was not a physician and he never left the examining room or consulted with appellee Dr. Callaway about appellant's case. Appellant believed that appellee Riner was appellee Dr. Callaway. Appellant was told by appellee Riner that he could expect to feel worse before feeling better, but that he would be able to return to work on Monday. Appellant did feel considerably worse during the weekend. When appellant felt no better on Monday, he went to another doctor, who diagnosed appellant as suffering from probable appendicitis, and possibly a ruptured appendix. Appellant was referred to a surgeon. The surgeon operated and found that appellant did have a ruptured appendix and a severe infection.
The initial affidavit that was filed by appellee Dr. Callaway in support of the motion for summary judgment stated that he had, at all times in the treatment of appellant, acted in compliance with the applicable standard of care for physicians. The affidavit that was filed by appellee Riner stated that he had, at all times in the treatment of appellant, acted in compliance with the applicable standard of care for physician's assistants. However "[n]either affiant limited his . . . averments merely to that conclusory expert opinion. Each affiant also stated the factual basis upon which the opinion of non-negligence was based: Both opinions were premised upon additional factual averments that [appellee Riner had consulted with appellee Dr. Callaway as to the diagnosis of appellant's condition, that appellee Dr. Callaway had concurred in the diagnosis of epididymitis, and that appellee Dr. Callaway then signed a prescription]." Cherokee County Hosp. Auth. v. Beaver,
Were the evidence to be construed most strongly for appellees, then their affidavits would be sufficient to mandate summary judgment in their favor. However, on this motion for summary judgment, the evidence must be construed most strongly in favor of appellant as the non-movant. Construing the evidence most favorably for appellant, appellees' conduct did not comport with the standard which their own testimony implicitly showed to be applicable. Accordingly, the trial court erred in granting summary judgment in favor of appellees.
2. With regard to the proximate cause issue, appellee Dr. Callaway did file a subsequent affidavit wherein he opined that "no act or omission on [appellee] Mr. [Riner's] part caused or contributed in causing any injury or damage allegedly sustained by [appellant]." Appellee Dr. Callaway did not, however, offer an opinion as to what he did consider the proximate cause of appellant's injuries to be. Compare Stewart v. Palmyra Park Hosp.,
Sidney F. Wheeler, Arnold E. Gardner, Robert D. Roll, for appellees.
1987
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