PAYNE v. GOLDEN
35947
Supreme Court of Georgia
May 1, 1980
Rehearing Denied May 20, 1980
245 Ga. 784
Undercofler, C. J., and Jordan, P. J., who dissent. ARGUED MARCH 10, 1980 — DECIDED MAY 1, 1980 — REHEARING DENIED MAY 20, 1980. ARGUED MARCH 11, 1980 — DECIDED APRIL 8, 1980.
Ben B. Mills, Jr., for appellee.
JORDAN, Presiding Justice, dissenting.
I would affirm the holding of the Court of Appeals that the defendant-physician‘s motion for summary judgment could not be granted on the basis of his expert testimony alone. See my dissent in Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978).
I would return to the bedrock cases of Ginn v. Morgan, 225 Ga. 192 (2) (167 SE2d 393) (1969) and Harrison v. Tuggle, 225 Ga. 211 (2) (167 SE2d 395) (1969) which clearly hold that summary judgment can never be granted on the basis of opinion evidence alone.
This is a majestic rule that should be followed.
I am authorized to state that Chief Justice Undercofler joins in this dissent.
PER CURIAM.
This court granted certiorari to review the Court of Appeals’ decision in Golden v. Payne, 152 Ga. App. 800 (264 SE2d 292) (1979).
We posed for resolution the following issue: When a plaintiff must produce an expert‘s opinion that the defendant was negligent in order to avoid the grant of a directed verdict in favor of the defendant, must that plaintiff also produce said opinion in order to avoid the grant of summary judgment in favor of the defendant when the defendant moves for summary judgment solely on the basis of his own affidavit, submitted in his capacity as an expert, that he was not negligent?
In the present cause of action, Ellen Golden, plaintiff, sued Dr. Richard A. Payne, defendant, alleging that Dr. Payne had negligently performed his medical duties as the anesthesiologist on Ms. Golden‘s surgical team.
Dr. Payne moved for summary judgment solely on the basis of his own affidavit that he had not negligently performed said medical duties. When Ms. Golden failed to timely produce an expert‘s opinion that Dr. Payne had negligently performed said duties, the trial court granted summary judgment to Dr. Payne.
The Court of Appeals reversed the trial court and held that summary judgment was not properly granted because Dr. Payne had moved for summary judgment solely on the basis of his own affidavit.
Thus, in accordance with our present holding, we reverse the Court of Appeals and affirm the trial court‘s grant of summary judgment in favor of Dr. Payne.
Judgment reversed. All the Justices concur, except Undercofler, C. J., and Jordan, P. J., who dissent.
W. E. Zachary, Sr., for appellant.
Oscar M. Smith, amicus curiae.
Guy M. Michaud, for appellee.
JORDAN, Presiding Justice, dissenting.
I dissent from this holding on the basis of my dissents in Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978), and in Parker v. Knight, 245 Ga. 782 (1980).
I am authorized to state that Chief Justice Undercofler joins in this dissent.