Bregman-Rodoski v. Rozas

Citations: 616 S.E.2d 171; 273 Ga. App. 835; 2005 Fulton County D. Rep. 1954; 2005 Ga. App. LEXIS 632Docket: A05A0178

Court: Court of Appeals of Georgia; June 22, 2005; Georgia; State Appellate Court

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Beverly Bregman-Rodoski filed a medical malpractice lawsuit against Dr. Kevin Rozas, claiming negligent performance of a hysterectomy and bladder-neck suspension surgery. Rozas sought summary judgment, arguing that Bregman-Rodoski failed to provide a sufficient expert affidavit demonstrating that his care fell below the required standard. The trial court granted Rozas's motion, leading to this appeal.

To succeed in a summary judgment motion, the moving party must show no genuine issue of material fact exists, and the evidence must allow for judgment as a matter of law. Rozas's defense relied on the deposition of Dr. Richard Karol, who initially supported Bregman-Rodoski's claim but later stated he was not competent to serve as an expert witness because he no longer practiced surgery and had never performed the specific procedure in question. Subsequently, Rozas submitted his own affidavit asserting that he adhered to the appropriate standard of care during Bregman-Rodoski's treatment.

In response to Rozas's summary judgment motion, Bregman-Rodoski provided an affidavit from Dr. Peter Bretan, who claimed to have reviewed the medical records related to her treatment. However, Bretan's affidavit failed to include certified copies of these medical records, which are required under OCGA § 9-11-56(e) for a valid summary judgment response. The trial court found Bretan's affidavit lacked probative value due to this omission and granted Rozas's motion for summary judgment. On appeal, Bregman-Rodoski argued the trial court erred, but the appellate court affirmed the decision, upholding the necessity of competent expert testimony and adherence to procedural rules regarding evidence in summary judgment motions.

Failure to respond appropriately to a motion for summary judgment may result in judgment being entered against the non-responsive party. Rozas filed for summary judgment citing the absence of competent expert testimony from Bregman-Rodoski. To contest this, Bregman-Rodoski needed to provide competent evidence demonstrating a genuine factual issue for trial. The court emphasized that an expert's opinion must be based on sworn or certified medical records or personal knowledge, detailing specific negligence in treatment. Bregman-Rodoski did not attach certified records to her affidavit, and no certified records were found, which is essential for her claim. Although Bregman-Rodoski argued that summary judgment was premature due to incomplete discovery, the court noted that it is not obligated to delay a ruling if the case is ready. The record indicated that Bregman-Rodoski's attorney acknowledged uncertainty about receiving certified records, while Rozas's attorney confirmed their provision. The court found no merit in Bregman-Rodoski's claims against the summary judgment. Additionally, Bregman-Rodoski did not request permission to amend her complaint, nor did she provide legal support for such a requirement from the court. Finally, the court ruled that Dr. Karol's testimony, based solely on medical records, did not offer sufficient evidence against the summary judgment. Consequently, the court affirmed the decision in favor of Rozas.

A plaintiff in medical malpractice cases is typically required to present expert testimony to establish that the defendant did not meet the applicable standard of care, as indicated in OCGA § 9-11-9.1(a) and supported by case law, including Tucker v. Thomas C. Talley, M.D. P.C. and Cherokee County Hospital Authority v. Beaver. In summary judgment proceedings, when the moving party provides sufficient evidence demonstrating a legal entitlement to judgment, the burden shifts to the opposing party to present rebuttal evidence. This requirement is underscored by cases such as Hailey v. Blalock and others, which clarify that the opposing party cannot rely solely on pleadings but must respond with affidavits or other evidence. Additionally, specific records referenced in Dr. Karol's affidavit were neither attached to the affidavit nor presented during the summary judgment hearing.