Certiorari was granted to review the decision of the Court of Appeals affirming a grant of summary judgment for appellee physician in this medical malpractice action. We reverse.
Appellant Irma Jackson was admitted to Paulding County Memorial Hospital on September 11, 1980, complaining of severe lower back pain and blood in her urine. Appellee Gershon, a urologist, first saw her on September 13 and recommended conducting a cystoscopy, a relatively simple procedure in which a “lighted telescope” is inserted through the urethra 1 into the bladder for inspection of the bladder’s interior. Appellant agreed to undergo a cystoscopy, and an x-ray of appellant’s urinary tract was taken that day. Two days later, on September 15, Dr. Gershon for the first time reviewed this x-ray and noted the presence of three small non-obstructive kidney stones in appellant’s left kidney, as well as an obstruction, of unknown origin, in appellant’s right ureter. 2
A cystoscopy wаs performed on September 15. Dr. Gershon found nothing unusual inside appellant’s bladder. After completing the normal cystoscopy procedure, and without consulting аppellant or conducting further tests or x-rays, he inserted a “stone basket” device up appellant’s right ureter in an attempt to clear up the blockage there. This procedure caused a break in the ureteral wall, 3 which in turn necessitated an extensive operation to repair damage to appellant’s ureter and reimplant the ureter in her bladder.
*578 Following the operation, appellant continued to experience extreme pain in her right side. She сonsulted a second physician, Dr. Roper, who operated on appellant in February 1981 to remove extensive scar tissue which had formed around apрellant’s right ureter as a result of the first operation. Dr. Roper also reimplanted appellant’s right ureter in the bladder in order to correct a faulty reimplantation by Dr. Gershon. This action was necessary, testified Dr. Roper, to prevent scar tissue from reforming around the ureter and to improve drainage through it.
Appellant sued Dr. Gershon for malpractice in the performance of the cystoscopy, alleging negligence and breach of an implied contract to perform skilled professional services. Dr. Gershon moved for summary judgment, presenting his own affidavit and deposition as expert testimony to the effect that his treatment of appellant comported with accepted medical standards and was, therefore, non-negligent. Appellant responded with the deposition of Dr. Roрer stating that, while he would have approached appellant’s problem more conservatively, Dr. Gershon’s treatment was within the standards of adequate mеdical care. More specifically, Dr. Roper testified that he personally disapproved of “diagnostic” use of the stone basket device and would nоt have employed the procedure on appellant without first conducting further tests. Based on this testimony, the trial court granted summary judgment for Dr. Gershon, and the Court of Aрpeals affirmed.
Jackson v. Gershon,
Appellant’s expert testimony raised a factual issue as to Dr. Gershon’s alleged negligence in (1) proceeding with the “stone basket” for “diagnоstic” use without first conducting further tests to determine whether, in fact, there was a kidney stone blocking appellant’s right ureter; and (2) performing surgery on appellant’s uretеr and bladder without first attempting to intubate the ureter.
It is true, as stated by the Court of Appeals in its opinion, that to avoid summary judgment a plaintiff in a malpractice aсtion must counter a defendant’s expert affidavit with a contrary expert opinion. See
Howard v. Walker,
None of the conservative, preventative measures described by appellant’s expert were аttempted by Dr. Gershon in this case. Appellant’s evidence created a factual question as to whether Dr. Gershon’s ill-fated foray into her ureter was medically nеcessary, and this is all that was required to avoid summary judgment on the issue of Dr. Gershon’s alleged negligence in treating appellant. It is true that appellant’s expert nеver accused Gershon of negligence. But when stripped of the magic words “in accordance with standard medical practice,” “standard practicе,” and the like, Dr. Roper’s testimony showed that he had grave doubts about whether Gershon’s surgery was conducted properly. Magic words alone, no matter how often repeated, do not make a fact. Rather the facts in the record must be sufficient to meet the legal standard embodied in the magic words. It is asking too much of an еxpert witness to expect him to state point-blank about a professional colleague, “He was negligent.” See Kelner, The Silent Doctors—The Conspiracy of Silence, 5 U. Rich. L. Rev. 119 (1970). “Although none of the nonparty physicians specifically opined that the defendant here was negligent, such explicit conclusory pronouncements out of the mouths of those clothed with the mantle of evidentiary expertise are not essential.” Lawrence v. Gardner, supra at 724.
When considered in the context of a motion for summary *580 judgment, Dr. Roper’s testimony raised material issues of fact to be resolved by a jury. As stated in Lawrence v. Gardner, supra at 724: “Here there was expert testimony elicited on cross examination .. . which was not inconsistent with plaintiffs contention that defendant failed to exercise the requisite professional care, skill and diligence. ‘Summary judgments should only be granted where, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome.’ (Emphasis supplied.)” Thus the trial court’s grant of summary judgment was erroneous.
Judgment reversed.
Notes
The urethra is a canal which carries urine from the bladder to the exterior of the body.
The ureter is a tube, about 16 inches long, which connects the kidneys and bladder.
It is unclear whether the “stone basket” itself or a catheter later inserted by Dr. Gershon actually punctured appellant’s ureter.