Skinner v. Coleman-Nincic Urology Clinic, P. A.

Smith, Judge.

On October 26, 1975, Franklin Skinner had an operation for removal of a kidney stone located in his left ureter. The operation was performed at Doctors Memorial Hospital by Drs. Coleman and Nincic of the Coleman-Nincic Urology Clinic, P.A. A No. 8 polyethylene catheter was placed in the ureter during the operation to aid healing. Subsequent to the operation, appellant experienced considerable pain and discomfort in the lower abdominal region. On November 25,1975, an x-ray was taken, revealing that the catheter had migrated into the bladder, where it became twisted and tangled. After an unsuccessful attempt to remove the catheter under local anesthesia, it was removed surgically. Appellant filed a malpractice action, alleging that appellee doctors were negligent in failing to use a catheter that would not migrate. In addition, appellant alleged that appellee doctors were negligent in the post-operative care they provided. It was charged that appellees failed to inform appellant that the catheter had been left inside of him and failed to properly monitor its location. Appellees filed a motion for summary judgment. The trial court granted the motion. We affirm in part and reverse in part.

1. In Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978), the Georgia Supreme Court held “that in those cases where the plaintiff must produce an expert’s opinion in order to prevail at trial [which is typically the case in malpractice actions (Berman v. Rubin, 138 Ga. App. 849, 853 (227 SE2d 802) (1976))] an expert’s opinion in [the defendant’s] favor on motion for summary judgment” will pierce the plaintiffs pleadings. See McCracken v. Gainesville Tribune, Inc., 146 Ga. App. 274, 277 (246 SE2d 360) (1978). Where the defendant produces an expert in his favor and the plaintiff fails to respond with a “contrary expert opinion,” summary judgment in favor of the defendant is appropriate.

While the theoretical underpinnings of Howard are rather unclear,¹ Howard is the law and is applicable to the instant case. However, the following rule is also applicable: “On a motion for summary judgment, the burden is on the movant to produce evidence which eliminates all of the material factual issues in the case, even those which the opposing party would have the burden of proving at trial... Once the movant eliminates all issues, the burden then shifts to the opposing party to show the existence of issues of fact for the jury. See Stephens County v. Gaines, 128 Ga. App. 661 (197 SE2d 424) (1973).” Harris v. White, 148 Ga. App. 862, 863 (253 SE2d 249) (1978). While the expert opinions presented by appellees in this case establish the absence of negligence with respect to the selection and placement of the catheter, they do not pierce appellant’s pleadings with respect to all acts of negligence alleged in the complaint. Under these circumstances, summary judgment was inappropriate.

Specifically, an issue of fact remains as to whether appellee Coleman was negligent in his treatment of appellant on November 25, 1975. At that time, appellee Coleman allegedly attempted to remove the catheter by yanking it out. This procedure caused appellant excruciating pain. Appellant began “bleeding everywhere” and “ruined his pants.” Appellees cite no medical testimony establishing that the November 25 procedure was proper. Thus, the burden had not shifted to appellant to produce a “contrary expert opinion.”

Argued May 8, 1980 Decided December 2, 1980. Robert P. Hoyt, J. C. Rary, for appellant. Robert G. Tanner, for appellees.

In addition, an issue of fact remains as to whether appellee doctors were negligent in failing to properly monitor the location of the catheter and in failing to remove it until November 25, a month after surgery. Appellant contends these omissions contributed to the migration of the catheter into the bladder. He asserts that, if appellees had properly checked on the position of the tube and removed it earlier, he would not have been subjected to the intense pain and suffering that he experienced.

Appellees have not pierced appellant’s pleadings insofar as this theory of recovery is concerned. Although appellee Coleman testified that, in his opinion, the catheter remained in appellant “long enough,” no medical testimony has been presented establishing that appellee-doctors’ post-operative treatment of appellant was in compliance with the “standard [that] should be ... exercised by the medical community generally.” Slack v. Moorhead, 152 Ga. App. 68, 71 (262 SE2d 186) (1979).

2. The physicians in this case determined the operating procedure, selected the catheter used in the operation, and were solely responsible for appellant’s post-operative care. Under these circumstances, there is no claim against appellee Doctors Memorial Hospital (see Minter v. Powell, 152 Ga. App. 449, 451 (263 SE2d 235) (1979)), and the trial court did not err in granting summary judgment in its favor.

3. Appellant’s remaining contentions are without merit and require no discussion.

Judgment affirmed in part; reversed in part.

Deen, C. J., Quillian, P. J., Shulman, Banke and Carley, JJ., concur. McMurray, P. J., Birdsong and Sognier, JJ., dissent.

1 It is most difficult to reconcile the Supreme Court’s ruling in Howard with the well-established rule that an expert opinion “is [not] so authoritative that the Jury are bound to be governed by it.” Choice v. State, 31 Ga. 424, 425 (1860). If expert opinion testimony “is not conclusive or controlling and is submitted for whatever the jury considers it to be worth” (Woods v. Andersen, 145 Ga. App. 492, 494 (243 SE2d 748) (1978)), then it is questionable whether such testimony is sufficient to “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” CPA § 56 (c) (Code Ann. § 81A-156 (c)) Why is a trial court bound by such testimony if a jury is not? See Ginn v. Morgan, 225 Ga. 192 (2) (167 SE2d 393) (1969).

Perhaps there is an implicit holding in Howard that unimpeached, uncontroverted expert opinion testimony produced in cases “where the plaintiff must produce an expert’s opinion in order to prevail at trial” stands generally on the same footing as unimpeached, uncontroverted factual testimony and “cannot be arbitrarily disregarded by the trier of fact...” Nesbit v. Nesbit, 241 Ga. 351, 352 (245 SE2d 303) (1978).

There is authority for such a position. In cases where the plaintiff must produce an expert’s opinion in order to prevail at trial (e.g., a medical malpractice case), the issue under consideration (i.e., a physician’s negligence) is solely within the knowledge of experts. As stated in Truelove v. Hulette, 103 Ga. App. 641, 645 (120 SE2d 342) (1961): “. . . [W]hen the subject under consideration is one solely within the knowledge of experts . . . expert testimony, of necessity, must be believed, if uncontradicted.” If an uncontroverted expert opinion would be binding at trial, it could form the basis for the grant of summary judgment.

However, the majority in Howard at p. 408 appears to reject this analysis. The majority opinion concludes: “Ginn v. Morgan, supra, and its progeny continue to be correct insofar as nonexpert opinion cases are concerned and insofar as motions for summary judgment in favor of plaintiffs are concerned.” (Emphasis supplied.) Under an evidentiary rule whereby uncontroverted expert opinion testimony cannot be disregarded by a jury (or a judge), no rational distinction can be drawn, as the Supreme Court draws, between a plaintiffs and a defendant’s expert witness. Thus, it would appear that Howard v. Walker, supra, is based upon a more elusive rationale.