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Posted by Susan J. Levy

In Roberts v. Nessim, 2009 Ga. App. LEXIS 428 (March 10, 2009), Plaintiff’s husband died a few days after Defendant physician ordered a nasogastric feeding tube to be placed in his stomach. Plaintiff filed suit against Dr. Nessim and the hospital, asserting professional negligence and fraud. In support of her claims of medical malpractice and in opposition to Dr. Nessim’s motion for summary judgment, Plaintiff submitted the affidavit of her expert, Dr. Tidswell. Dr. Tidswell averred that Dr. Nessim breached the applicable standard of care when he:

1. failed to suspect that the decedent aspirated after he choked;

2. ordered the continued use of the feeding tube;

3. failed to ensure that Plaintiff’s decedent received a pulmonary consult he had ordered;

4. failed to diagnose and treat the aspiration;

5. failed to treat the decedent’s pneumonia; and

6. “as a result of the lack of treatment, Mr. Roberts died.”

Id. at *5.

Dr. Nessim submitted his own affidavit stating that his treatment of the decedent did not fall below the standard of care and that nothing he did or did not do contributed to the decedent’s injuries.

Proof of negligence alone is insufficient. In order to recover, Plaintiff must prove negligence and that the physician’s negligence was the proximate cause of the injury. If the Defendant physician, in conjunction with his motion for summary judgment, provides a medical affidavit that states a medical opinion that the alleged deviation from the standard of care has no causal connection with the injury, then he has refuted causation and shifted the burden back to the Plaintiff.

Consequently, in this case, Dr. Nessim refuted causation with his own affidavit thereby piercing the pleadings and putting the proverbial ball back in Plaintiff’s court to create a material issue of fact:

When causation is involved, plaintiff has a more complex dilemma where the defendant has given expert testimony that there was no proximate cause, because to merely show a causal link does not refute the defendant’s denial of causation and leaves an examination upon the entire record that the evidence does not create a triable issue as to the essential elements of causation, requiring the grant of summary judgment. Thus, the plaintiff must present medical expert opinion as to causation which may be aided by other medical or non-medical evidence that, in totality, shows causation, even though the medical opinion is weak, i.e., showing a reasonable possibility rather than a probability.

Id. (quoting Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706 (1998)).

Here, the Court found that the record was devoid of non-expert evidence of causation, that Plaintiff’s expert’s affidavit was conclusory, and therefore insufficient to establish causation. But, the Court lent a hand to future Plaintiffs by providing a roadmap for an expert attempting to craft an affidavit that would survive a motion for summary judgment on causation.

The Court said that Dr. Tidswell could have provided specifics regarding defendant’s purported negligence, testimony as to proper treatment in cases such as these, comparisons of this case and what should have been done, testimony as to how the defendant’s actions or inactions were the only apparent cause of the decedent’s injuries, and what specific precautions Dr. Nessim should have taken and how those failures proximately caused the decedent’s death. Roberts, 2009 Ga. App. LEXIS at *10 & *11.

Health care providers should applaud both the trial and appellate courts’ willingness to put the Plaintiff to her proof in this case. The courts found that Plaintiff’s reliance on a conclusory expert affidavit was insufficient to create a genuine issue of fact as to causation and, therefore, merited summary judgment in the physician’s favor.