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NETTLES et al. v. LAWS et al.
Medical malpractice. Glynn Superior Court. Before Judge Killian.
James Allen Nettles filed a complaint against William Laws, M.D., for medical malpractice alleging negligent prescription of narcotics. This appeal follows the trial court's grant of summary judgment to Laws.
To avoid summary judgment a plaintiff in a malpractice action must counter the affidavit of a defendant's expert with a contrary expert opinion. Jackson v. Gershon, 251 Ga. 577, 578 (308 SE2d 164) (1983). Appellant countered appellee's affidavit with the affidavit of a Dr. Vaughn, who stated that based on his review of certain records, he was of the opinion that appellant had failed to exercise the appropriate degree of care. The "records" reviewed by Dr. Vaughn referred to a deposition and exhibits purportedly taken in another civil action. These materials were not filed in this case, there was no stipulation permitting the materials to be used in this case, nor were the materials attached to Dr. Vaughn's affidavit. "An affidavit need not attach material upon which it is based if that material is part of the record in the case and is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based." Jones v. Rodzewicz, 165 Ga. App. 635, 637 (4) (302 SE2d 402) (1983); Hughey v. Emory Univ., 168 Ga. App. 239, 240 (308 SE2d 558) (1983). However, since the affidavit offered by appellant was based solely on information not part of the record in this case, the trial court correctly found that the affidavit had no probative value in response to the motion for summary judgment. See OCGA 9-11-56 (e); Jones, supra at 636-37; Hayes v. Murray, 252 Ga. 529 (314 SE2d 885) (1984).
Therefore, as appellant failed to submit the expert testimony essential in a medical malpractice action to counter appellee's affidavit, and the record evidence does not raise a genuine issue of material fact, the trial court did not err by granting summary judgment. Childs v. Christmas, 171 Ga. App. 756 (320 SE2d 629) (1984).
William H. Pinson, Jr., William P. Franklin, Jr., Lee C. Mundell, Wallace E. Harrell, for appellees.
Irwin M. Ellerin, for appellants.
Thursday May 21 18:34 EDT

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