Payne v. Golden

245 Ga. 784 (1980) 267 S.E.2d 211

PAYNE
v.
GOLDEN.

35947.

Supreme Court of Georgia.

Argued March 11, 1980. Decided April 8, 1980.

W. E. Zachary, Sr., for appellant.

Oscar M. Smith, amicus curiae.

Guy M. Michaud, for appellee.

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 conformity with this court's pronouncements in Parker v. Knight, 245 Ga. 782 (1980), we hold that the present issue must be answered affirmatively.

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.

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.