author:
Sognier, Chief Judge.
      Andrews, Judge,

text:
    A91A1485.
    CHANDLER v. KOENIG et al.
    (417 SE2d 715)
   Sognier, Chief Judge.

Terrie Jo Chandler brought a medical malpractice suit against Ronald Koenig, M.D., Mark Kozinn, M.D., and The Atlanta Neurological Institute, P.C. Pursuant to OCGA § 9-11-9.1 (a), she submitted the affidavit of Jerry Buccafusco, Ph.D., Professor of Pharmacology and Toxicology at the Medical College of Georgia. All defendants raised as a defense the failure of Chandler to comply with OCGA § 9-11-9.1, and the trial court granted their motion to dismiss based on that defense. Chandler appeals.

OCGA § 9-11-9.1 (a) provides that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” The question in this appeal is who is “an expert competent to testify” for purposes of OCGA § 9-11-9.1 (a).

We hold that for an affiant to constitute “an expert competent to testify” under OCGA § 9-11-9.1 (a), the affiant’s expertise must include knowledge of the standard of care applicable to the defendant-physician as to at least one of the matters on which the plaintiff’s malpractice claim is based.. This holding is mandated by the language of the statute that the expert affidavit submitted by the plaintiff must specifically set forth “at least one negligent act or omission” allegedly committed by the defendant-physician. To support a claim of medical malpractice, any such “negligent act or omission” must have been the result of the defendant-physician’s breach of a duty owed the plaintiff-patient by failing to exercise the requisite degree of skill and care. Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200-201 (1) (345 SE2d 904) (1986). See McDaniel v. Hendrix, 260 Ga. 857, 859 (1) (401 SE2d 260) (1991). Since an affiant whose expertise does not encompass the standard of care applicable to the defendant-physician in the performance of one of the challenged acts or omissions does not possess the knowledge to opine whether malpractice existed in the defendant-physician’s performance, as alleged by the plaintiff, such an affiant would not qualify as an “expert competent to testify” under OCGA § 9-11-9.1 (a).

Our interpretation is consistent with opinions holding that the mere fact an affiant is an expert in his or her school of knowledge does not necessarily mean the expert is “competent to testify” under OCGA § 9-11-9.1 (a). See Piedmont Hosp. v. Milton, 189 Ga. App. 563 (377 SE2d 198) (1988) (rejecting a medical doctor’s affidavit against nursing personnel in part because it did not show that the medical doctor was an expert competent to testify “in the field of nursing”); Milligan v. Manno, 197 Ga. App. 171 (397 SE2d 713) (1990) (setting forth the general rule that a member of a school of practice other than that to which the defendant belongs is not competent to testify as an expert in a malpractice case). This result is also in accord with our opinion in 0-1 Doctors &c. Co. v. Moore, 190 Ga. App. 286 (378 SE2d 708) (1989), in which we interpreted OCGA § 9-11-9.1 to mean that when the affiant is “competent to testify,” there is no need to set forth in the affidavit the standard of care or the expert affiant’s familiarity with the standard of care to fulfill the requirements of OCGA § 9-11-9.1 (a). 0-1 Doctors, supra at 287.

In Milligan, supra, this court discussed in the context of the OCGA § 9-11-9.1 affidavit the general rule excluding practitioners of one school of medicine from testifying against members of other schools and the exception to that rule, as set forth in Sandford v. Howard, 161 Ga. App. 495, 497 (5) (288 SE2d 739) (1982), that “ ‘[w]here there is proof by competent evidence that the methods of treatment are the same despite the difference in the nomenclature of the schools involved, the witness is competent to testify.’ [Cit.]” The Milligan court then applied that exception to the affidavit required by OCGA § 9-11-9.1 and held that where the affidavit “establishes that the witness is a member of a different school of medicine than that practiced by the defendant but contains no evidence that the methods of treatment of plaintiff’s condition are the same so as to bring the witness within the exception to the general rule that he is incompetent to testify[, then] the affidavit is legally insufficient.” Id. at 172. We find no conflict between Milligan and our holding in 0-1 Doctors &c., supra, because 0-1 Doctors &c. is distinguishable on the basis that it involved an expert affiant who was a member of the same school of medicine as that practiced by the defendant-physicians.

The general rule and its exception, as discussed in Milligan, supra, are addressed to and have been applied only in cases involving expert witnesses in health care professions who treat patients. Likewise, McCormick v. Avret, 154 Ga. App. 178, 179 (267 SE2d 759) (1980), cited by the dissent, involved testimony by one health care professional (a licensed nurse) against another (a medical doctor), and thus is consistent with (though not referencing) the general rule and its exception. In the case sub judice, it is uncontroverted that appellant’s expert, Dr. Buccafusco, is a pharmacologist, not a licensed practitioner of any school of medicine or a licensed practitioner of any related field, such as pharmacy. However, we need not here determine whether affiants such as Dr. Buccafusco who are not licensed professionals in the health care field are competent to testify to the standard of care of defendants who are practicing licensed health care professionals, because even assuming, arguendo, that a pharmacologist can derive from education and training the knowledge sufficient to render him an expert on the standard of care required of a medical doctor, the facts as set forth in the affidavit of appellant’s expert are insufficient to establish his expertise on this subject.

In his affidavit Dr. Buccafusco set forth his fields of specialty, the scientific and professional societies to which he is a member, and averred that he trains medical students and postgraduates in regard to the properties and interactions of drugs as part of his duties as a professor of pharmacology at MCG. Dr. Buccafusco also opined that he was “familiar [with the] standard of care required and the properties and interactions of the drugs prescribed to [appellee] by [appellants] and with their recommended use” and was “competent to testify regarding the standards of care and recommended use” of those drugs. However, “ [competency as an expert is not demonstrated by mere familiarity. During the course of one’s education, training, or experience as a [pharmacologist], it is possible to become ‘familiar’ with the standard of care and treatment generally employed by [medical doctors]. Such familiarity would not, however, qualify one as an expert in that regard. An expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of science or skill to which his testimony relates. Absent some evidence to show that the affiant’s education, training, or experience as a [pharmacologist] would likewise demonstrate his similar expert qualifications as to [the prescribing of drugs by a medical doctor], the ‘exception’ in [Milligan, supra] would not be shown.” (Citations and punctuation omitted.) Bethea v. Smith, 176 Ga. App. 467, 469 (336 SE2d 295) (1985).

Dr. Buccafusco’s affidavit establishes that he is an internationally recognized pharmacologist and possesses expertise in that area which probably far exceeds that of the average medical doctor. However, other than Dr. Buccafusco’s bare assertion that he is familiar with the applicable standard of care, nothing in Dr. Buccafusco’s affidavit explains how his pharmacological education or his professorial duties has provided him with expert knowledge of the standard of care in the prescribing of drugs ordinarily employed throughout the general medical profession by physicians who are years removed from the intensive pharmacological training they received in medical school and for whom the prescribing of drugs is but one facet of their practice. Bethea, supra. Because there is no showing of a professional overlap of expertise in at least' one matter alleged by appellant to constitute malpractice, compare McCormick, supra at 179, Dr. Buccafusco could not come within the exception to the general rule that he is incompetent to testify. Milligan, supra at 172. Therefore, appellant’s affidavit did not meet the requirement of OCGA § 9-11-9.1 (a), and the trial court did not err by granting appellees’ motion to dismiss.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Carley, P. J., and Johnson, J., concur. Pope, Beasley, Cooper and Andrews, JJ., dissent.

Andrews, Judge,

dissenting.

Chandler’s expert affiant was not a medical doctor, but a pharmacologist. OCGA § 9-11-9.1 (a) sets forth a pleading requirement which provides that: “In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

In determining whether the pharmacologist’s affidavit satisfied this requirement, the allegations of the complaint must first be examined. In count one, the complaint alleges that, given Chandler’s physical and mental condition and prior medical history, the defendants negligently prescribed various drugs and combinations thereof, failed to recognize and warn her of risks associated with the drugs, and failed to properly monitor her reactions to the drugs. As a result, the complaint alleges she suffered a life-threatening reaction culminating in respiratory arrest and coma, and that she suffers from continuing effects physically and mentally. Count two alleges the same negligent acts and omissions, but is characterized as a breach of implied contract claim.

The affidavit of Chandler’s expert indicates that he holds a doctoral degree and is a professor of pharmacology and toxicology at the Medical College of Georgia. He has written and been published extensively in various scientific books and periodicals concerning his field of specialty in neuropharmacology and the pharmacology of drugs of abuse. His duties at the Medical College include training medical students and postgraduates in this area. Judicial notice may be taken of the general agreement of medical authorities as to the definition of pharmacology. Genesco, Inc. v. Greeson, 105 Ga. App. 798, 800-801 (125 SE2d 786) (1962) (doctrine of judicial notice utilized in ruling on demurrer where no conflict as to medical definition). The 25th edition of Dorland’s Illustrated Medical Dictionary defines pharmacology as “the science which deals with the study of the action of drugs on living systems,” while the Sloane-Dorland Annotated Medical-Legal Dictionary (1987 ed.) defines it as “the science that deals with the origin, nature, chemistry, effects, and uses of drugs; it includes pharmacognosy, pharmacokinetics, pharmacodynamcis, pharmacotherapeutics, and toxicology.”

In his affidavit, the plaintiff’s expert pharmacologist states that he is familiar with the properties, interactions and recommended use of the drugs prescribed to the plaintiff and with the standard of care required in the prescription of these drugs. He expressly states that he is “familiar with the . . . standard of care required ... by the defendants” in regard to the prescription of such drugs. He states that based on information he obtained by reviewing the plaintiff’s medical records and the allegations of the complaint it was his opinion that the defendants deviated from the required standard of care by prescribing the following drugs to the plaintiff: (1) prescribing Elavil and Midrin in combination to a patient with a history of cardiovascular problems without cardiovascular monitoring; (2) prescribing Elavil to a patient with a history of alcohol abuse and mental problems, without warning the patient of the danger of consuming alcohol while taking Elavil; and, (3) prescribing Fiorinal in combination with Elavil to a patient with such a history. In short, the pharmacologist stated that, given the plaintiff’s history, the drugs prescribed were inappropriate, especially when given without appropriate warnings and monitoring, and that this caused the injury. In giving the affidavit the expert is not required to demonstrate personal knowledge of the facts, but may base the opinion on an assumption that facts in the medical record or factual allegations in the complaint are true. Druckman v. Ethridge, 198 Ga. App. 321, 322 (401 SE2d 336) (1991).

OCGA § 9-11-9.1 (a) does not require that the affidavit address the issue of causation, but only that an expert competent to testify give the factual basis for at least one negligent act or omission of the defendant claimed in the complaint. 0-1 Doctors Memorial Holding &c. v. Moore, 190 Ga. App. 286, 288 (378 SE2d 708) (1989); Candler Gen. Hosp. v. Lamb, 200 Ga. App. 314, 317 (408 SE2d 416) (1991) (Pope, J., concurring specially), rev’d on other grounds, 262 Ga. 70 (413 SE2d 720) (1992). The affidavit is insufficient if it fails to show that the expert is competent to testify in the case as to at least one alleged negligent act or omission of the defendants. Milligan v. Manno, 197 Ga. App. 171, 172 (397 SE2d 713) (1990); Piedmont Hosp. v. Milton, 189 Ga. App. 563, 564 (377 SE2d 198) (1988). “Generally speaking, nothing more is required to qualify a witness as an expert than to show that, through education, training, or experience he has special knowledge concerning the matter of science or skill to which his testimony relates.” Queen v. McDaniel, 178 Ga. App. 504, 505 (343 SE2d 783) (1986). Although “[ojrdinarily, only a medical doctor has the training and experience necessary to provide meaningful testimony on the question of due care in a medical malpractice case,” non-physician experts may be competent to testify where their expertise clearly overlaps with a physician on the standard of care at issue. McCormick v. Avret, 154 Ga. App. 178, 179 (267 SE2d 759) (1980). For example, in McCormick, supra at 179 the court concluded in a medical malpractice case that a nurse whose expertise on the procedure at issue overlapped with that of a physician, was qualified “to testify as to the standard of reasonable care in keeping sterile a hypodermic needle used to draw blood from a patient.” However, the court emphasized that the testimony was not offered on issues beyond the expertise of a nurse to establish the standard of care in the drawing of blood or in the diagnosis or treatment of an illness or injury. Id. at 179. “ ‘Medical experts are persons possessing technical and peculiar knowledge, and any person learned in medical or physiological matters is qualified to testify as an expert thereon, even though he is not a medical practitioner.” (Punctuation and citation omitted.) Avret v. McCormick, 246 Ga. 401 (271 SE2d 832) (1980). Of course, with respect to matters exclusively within the professional expertise of medical doctors, it follows that one who is not a physician is not competent to testify.

The narrow issue presented here is whether the complaint is subject to dismissal for failure to state a claim because the affidavit fails to show that the pharmacologist is competent to testify in this case to at least one negligent act or omission of the defendants alleged in the complaint. Milligan, supra at 172. As to the competency of the expert, the underlying issue is whether the acknowledged expertise of the pharmacologist on the action, effects and uses of drugs overlaps in this case with the expertise of a medical doctor on at least one alleged negligent act or omission.

In medical and other professional malpractice claims, a negligent act or omission is demonstrated by showing that there was a deviation from the general standard of care employed by others in the profession under like circumstances. Razete v. Preferred Research, 197 Ga. App. 69, 70 (397 SE2d 489) (1990). The gravamen of the present action is that, given the plaintiff’s condition, the defendant doctors negligently prescribed various drugs. After a physician diagnoses the medical condition of a patient, at least part of the medical treatment applied by the physician may be the prescription of drugs to the patient. Pharmacologists do not possess the medical expertise to diagnose or treat patients. By definition, pharmacology encompasses a body of scientific knowledge regarding the action, uses and effects of drugs on the human body. The affidavit demonstrates that the pharmacologist is an expert possessing scientific or technical knowledge which overlaps in a specific area with that of medical doctors as to the uses of drugs and their effects on the human body. Accordingly, when medical doctors prescribe drugs for a patient to use, the standard of medical care applying to this aspect of the patient’s treatment arises from the same body of scientific knowledge which is the basis of the pharmacologist’s expertise. The fact that the pharmacologist’s expertise may be based solely on education and training, and does not extend to other aspects of diagnosis and treatment of patients, does not render the pharmacologist less qualified to give an opinion in the specific area of his expertise. See Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219, 220 (312 SE2d 386) (1983). He may base his opinion on hypothetical facts regarding the medical condition of the patient when the drugs were prescribed. Druckman, supra at 322.

In diagnosing and treating patients, medical doctors use not only their scientific knowledge, but also employ skills which are exclusively within the scope of their expertise. Smith v. Hosp. Auth., 161 Ga. App. 657, 660 (288 SE2d 715) (1982). However, in some cases a specific allegation of medical malpractice may involve only a standard of care lying wholly within an area of expertise mutually shared by physicians with a non-physician. See Avret, supra at 401 (nurse qualified to testify in medical malpractice case to establish medical standard of care in keeping needle sterile because expertise of nurses and doctors wholly overlapped on standard of care at issue); Bethea v. Smith, 176 Ga. App. 467, 470 (336 SE2d 295) (1985) (discussing non-physician’s overlapping expertise with medical doctor on specific standard of medical care). It follows that the pharmacologist would be competent to testify in this case that the physicians negligently deviated from a standard of medical care if the evidence shows that a specific standard at issue is based not in part but wholly on a body of scientific knowledge which forms the mutual basis of the pharmacologist’s and physicians’ expertise.

OCGA § 9-11-9.1 has been construed as an exception to the liberal pleading requirements of the Civil Practice Act. 0-1 Doctors, supra at 288; Brake v. Mintz, 193 Ga. App. 662, 667 (388 SE2d 715) (1989). In order to satisfy the requirement that the affidavit be given by “an expert competent to testify” the affidavit must contain allegations showing the affiant is competent to testify as to at least one alleged negligent act or omission. Milligan, supra at 172. If the affidavit of a non-physician expert is relied upon to satisfy the requirements of OCGA § 9-11-9.1 (a) in a medical malpractice action against a physician, the affidavit must contain evidence sufficient to show that the affiant is competent to testify that the defendant physician deviated from the standard of medical care applicable to at least one negligent act or omission alleged in the complaint. This requires that the affidavit contain evidence showing that at least one standard of medical care placed in issue by the allegations of the complaint is based not in part but wholly on an area of expertise mutually shared by the affiant with physicians.

The affidavit of the pharmacologist was sufficient under the facts of this case because his conclusions as to the standard of medical care in prescribing certain drugs under certain assumed conditions are based wholly on the body of scientific knowledge mutually shared by pharmacologists with physicians. However, satisfaction of the pleading requirements of OCGA § 9-11-9.1 does not mean that the testimony of the pharmacologist alone would be sufficient to carry the evidentiary burden at trial to establish the physicians actually deviated from the specific standard of medical care addressed in the affidavit, or to establish that any such deviation caused the alleged injuries. This is so because, in giving his opinion in the affidavit, the pharmacologist is allowed to assume as true certain hypothetical facts relating to the medical condition of the patient when the drugs were prescribed. See Druckman, supra at 322. Proof of these essential facts may raise other medical issues and standards of care involving diagnosis and treatment beyond the expertise of a pharmacologist. “The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.” 0-1 Doctors, supra at 288; Druckman, supra at 322. The affidavit contained sufficient evidence of overlapping expertise as to a relevant standard of medical care to satisfy the pleading requirements of OCGA § 9-11-9.1, and accomplish the purpose of the statute to reduce frivolous professional malpractice suits by requiring the plaintiff to show up front by expert testimony that she has some evidence of malpractice. Gillis v. Goodgame, 199 Ga. App. 413, 416-417 (404 SE2d 815) (1991), rev’d on other grounds, 262 Ga. 117 (414 SE2d 197) (1992). Accordingly, the trial court erred by finding the affidavit was insufficient and dismissing the complaint.

I am authorized to state that Judge Pope, Judge Beasley and Judge Cooper join in this dissent.

Decided March 19, 1992

Reconsideration denied April 2, 1992

Roger C. Plichta, for appellant.

Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., Michael A. Pannier, for appellees.

       E.g:, Milligan, supra (affidavit by osteopathic physician submitted in suit against allopathic physician); Hicks v. Mauldin, 190 Ga. App. 660, 661-662 (4) (379 SE2d 806) (1989) (osteopathic pediatrician testified against allopathic general practitioner); Bethea v. Smith, 176 Ga. App. 467, 468-470 (2) (336 SE2d 295) (1985) (affidavit by podiatrist against orthopedic surgeon); Sandford, supra (orthopedist’s testimony against podiatrist).

       Whether a pharmacologist or similar expert is competent to testify in a medical malpractice action that a physician deviated from the standard of medical care in the prescription and use of drugs has been variously decided in other jurisdictions. See Garvey v. O’Donoghue, 530 A2d 1141, 1146-1147 (D.C. App. 1987) (pharmacologist competent to testify as to standard of care in medical malpractice action alleging negligent prescription of drug); Thompson v. Carter, 518 S2d 609, 613-615 (Miss. 1987) (pharmacologist/toxicologist qualified to testify in medical malpractice action as to medical standard of care with respect to use and administration of drugs); Karasik v. Bird, 470 NYS2d 605-608 (A.D. 1 Dept. 1984) (in wrongful death case based on medical malpractice, pharmacologist competent to testify to effect of drugs); Pratt v. Stein, 444 A2d 674, 706 (Pa. Super. 1982) (pharmacologist qualified to testify in medical malpractice case that administration of drug was below standard of medical care). But see Rodriguez v. Jackson, 574 P2d 481 (Ariz. App. 1978) (pharmacologist not competent to testify to physician’s deviation from medical standard of care); Bell v. Hart, 516 S2d 562 (Ala. 1987) (pharmacist not competent to testify in medical malpractice case that administration of drug was below standard of medical care); Young v. Key Pharmaceuticals, 770 P2d 182, 190 (Wash. 1989) (physician’s standard of care regarding prescription of medication not within the scope of competence of pharmacist).
      Where the expertise of the pharmacologist or other non-physician expert does not wholly overlap with a physician on the specific standard of care at issue, they are not competent to state that the standard was breached, but their testimony may nevertheless be relevant and admissible for a more limited purpose. See Goodman v. Lipman, 197 Ga. App. 631-634 (399 SE2d 255) (1990); Jordan v. Santa Fe Engineering, 198 Ga. App. 600, 602-603 (402 SE2d 304) (1991).


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A1507.
    HAYES v. GARY BURNETT TRUCKING, INC. et al.
    (417 SE2d 676)
   Cooper, Judge.

Appellant was injured when her car was struck in the rear by a truck, and she subsequently filed a lawsuit against appellees, the truck company and the driver. Appellees denied liability and contended that the accident was the result of a sudden brake failure. Among appellant’s theories of liability were that the brakes on the truck were not maintained in good working order and the appellees were negligent in failing to adequately inspect and service the braking system of the truck. The case was brought to trial before a jury, and a verdict was returned in favor of appellees. Appellant appeals from the judgment entered on the jury verdict.

1. Appellant contends in her first three enumerations of error that the trial court erred in excluding from evidence a statement made by the driver at the scene of the collision about prior brake problems and the condition of the truck’s brakes. Prior to trial, appellees moved in limine to exclude evidence that four to six months before the accident with appellant, one of the two trucks owned by the company had a problem with a part of the braking system known as the diaphragm but that problem had been corrected. Appellees contended that in the accident involving appellant, the problem with the truck’s brakes did not involve the diaphragm but occurred as a result of a broken screw in the braking system. The trial court granted appellees’ motion in limine. At the end of the first day of trial, appellant made an offer of proof during which appellant stated that immediately after the collision, the driver of the truck approached her and said, “I knew I had problems with my brakes, and I told my boss.” Appellant further testified that the day after the accident, the driver called her and said that about three months earlier he had a problem with a blown diaphragm on the truck. As part of her offer of proof, appellant also offered the deposition testimony of the truck driver who stated that other than the accident involving appellant, the only other brake failure on the truck involved the problem with the diaphragm. The trial court rejected appellant’s offer of proof, which was renewed at the beginning of the second day of trial and again rejected.

Appellant contends that the statement made by the driver at the scene was admissible as part of the res gestae. Although the driver’s statement may have constituted res gestae evidence, it was not relevant to the issues in the case to the extent that it referred to the brake problem which occurred in the truck several months earlier. Appellant failed to offer any evidence to show that the driver’s statement referred to any problem other than the one he described as occurring several months earlier. In fact, appellant’s offer of proof showed that the prior problem was the only other problem the driver had experienced with the brakes on the truck, and appellant failed to demonstrate that the prior brake problem caused her accident. “ ‘Questions of relevancy of evidence, which includes the issue of materiality, are for the court, and in the absence of an abuse of judicial discretion, this court will not interfere. (Cit.)’ ” Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264 (4) (387 SE2d 593) (1989). Furthermore, “ ‘ “[wjhile the relevancy of other occurrences is ordinarily within the sound discretion of the court, ‘it is necessary that the conditions of the things compared be substantially similar.’ (Cit.)” [Cit.]’ [Cits.]” Cooper v. Baldwin County School Dist., 193 Ga. App. 13 (1) (386 SE2d 896 (1989). Even if we assume that the statement of the driver had some marginal relevance, it was excludable if its probative value was outweighed by its potentially prejudicial impact and its tendency to confuse the issues. Accordingly, we find no error with the trial court’s exclusion of the statement. Hendricks, supra at 266.

2. Appellant also enumerates as error the trial court’s denial of her motion in limine to exclude evidence of collateral benefits available to appellant or in the alternative, the denial of her motion to bifurcate the trial pursuant to OCGA § 9-11-42 (b) as to liability and damages.

OCGA § 51-12-1 (b), in effect at the time appellant’s cause of action arose, authorized the trial court to admit evidence of collateral benefits received by appellant relative to her alleged damages. While appellant’s notice of appeal was pending, the Supreme Court of Georgia held in Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991) that OCGA § 51-12-1 (b) was unconstitutional. “(A)n appellate court must apply the law in effect at the time it renders its decision.” (Cits.) While there well might be an exception to the rule to prevent “manifest injustice,” (cit.), this equitable exception does not reach a private civil suit where the change (in the law) does not extinguish a cause of action but merely requires a retrial on damages before a properly instructed jury. (Cit.)’ [Cits.]” Anepohl v. Ferber, 202 Ga. App. 552 (415 SE2d 9) (1992). Accordingly, under Denton, it was error for the trial court to allow the collateral source evidence.

Appellees argue that the collateral source evidence was admissible because of appellant’s injection into the trial of issues related to the financial hardship she suffered as a result of the accident and appellant’s explanation that a gap in treatment by one of her physicians was due to her inability to continue to pay for the medical treatment. It is “permissible to cross-examine a plaintiff on the availability of insurance benefits ‘to test his averment that he did not return to see a certain physician . . . because he was unable to pay for the physician’s services.’ [Cit.]” Bridges v. Schier, 195 Ga. App. 583 (2) (394 SE2d 408) (1990). However, we cannot conclude that by raising matters related to her financial condition after the accident, appellant opened the door for the admission of the collateral source evidence introduced by appellees. To allow such would enable appellees to get in through the back door the same prejudicial matter that the Supreme Court ruled in Denton to be inadmissible.

Appellees also argue, citing U. S. Indus. v. Austin, 197 Ga. App. 74 (397 SE2d 469) (1990) and Malloy v. Elmore, 191 Ga. App. 564 (382 SE2d 395) (1989), that the error was harmless because a verdict was returned for appellees. We disagree. In the case sub judice, contrary to U. S. Indus. and Malloy, the record does not reflect that any limiting instructions were given to the jury on the purpose for which collateral source evidence, could be considered. Thus, we cannot conclude that merely because a verdict was returned in favor of appellees, the admission of the collateral source evidence was harmless error.

We note that the trial court could have avoided any possible prejudice to appellant by granting appellant’s motion for a bifurcated trial. We recognize that “ ‘[severance is largely a matter of discretion for the trial judge, and absent clear and manifest abuse of that discretion, it will not be interfered with on appeal.’ [Cits.]” Parks v. Consolidated Freightways, 187 Ga. App. 576 (1) (370 SE2d 827) (1988). We do not .find that the trial court clearly abused its discretion. However, considering that a constitutional challenge to OCGA § 51-12-1 (b) was pending in the Supreme Court of Georgia at the time of appellant’s trial and given the likelihood that the admission of the collateral source evidence could pervade the jury’s verdict, the better practice would have been to bifurcate the trial as to the issues of liability and damages.

For the foregoing reasons, we conclude that the trial court erred in denying appellant’s motion in limine to exclude the collateral source evidence, thereby entitling appellant to a new trial.

Judgment reversed.

Birdsong, P. J., and Pope, J., concur.

Decided March 11, 1992

Reconsideration denied April 2, 1992

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellant.

Long, Weinberg, Ansley & Wheeler, Lance D. Lourie, Debra E. Levorse, for appellees.


author: Andrews, Judge. McMurray, Presiding Judge, Beasley, Judge,

text:
    A91A1547.
    FIRST COMMUNITY BANK OF CHEROKEE v. BRYAN STARR & ASSOCIATES, INC.
    (417 SE2d 330)
   Andrews, Judge.

1. In its first enumeration of error, defendant/appellant First Community claims that the trial court committed procedural error in granting plaintiff/appellee Bryan Starr & Associates, Inc. (Starr & Associates) motion for summary judgment in this action involving a lien arising out of the following facts. Starr & Associates served by mail a motion for summary judgment and a supporting affidavit on January 16, 1991. On February 14, 1991, the superior court granted defense counsel’s motion for a leave of absence from February 19, 1991, through February 28, 1991. On February 22, 1991, prior to the end of this leave, the superior court granted Starr & Associates’ renewed motion for summary judgment.

The response to the motion for summary judgment was due 33 days after service of the motion, on February 18, 1991, which was a legal holiday. See generally Rule 6.2 of the Uniform Rules for the Superior Court; OCGA §§ 9-11-56; 9-11-5 (b); 9-11-6 (e); Pyramid Constr. Co. v. Star Mfg. Co., 195 Ga. App. 644 (394 SE2d 598) (1990). Thus, the period within which First Community was required to respond to the motion was extended by one day to February 19, 1991, which date fell within defense counsel’s leave of absence. See OCGA § 9-11-6 (a).

First Community argues that the superior court’s order granting Starr & Associates’ motion for summary judgment was improper since such motion was granted during its leave of absence. First Community cites Rule 16 of the Uniform Rules for the Superior Court which provides: “[a] leave when granted shall relieve any attorney from all trials, hearings, depositions and other legal proceedings in that matter.” First Community claims that the leave of absence extended the period of time allowed to respond to the motion for summary judgment.

We cannot accept First Community’s argument since we do not interpret the “proceedings” from which an attorney is excused by a leave of absence to include filing deadlines. Few Georgia cases interpret Rule 16 and no cases directly address the obligations from which an attorney is relieved by a leave of absence. See generally Dial v. Turner, 179 Ga. App. 689 (347 SE2d 305) (1986); Birts v. State, 192 Ga. App. 476 (385 SE2d 120) (1989); Bryant v. BMC of Ga., 188 Ga. App. 124 (372 SE2d 280) (1988). Nonetheless, we interpret the “legal proceedings” from which an attorney is excused by a leave of absence to mean appearances before a court, not filing deadlines.

This conclusion is supported by statutory authority which demonstrates that a leave of absence is not the mechanism for extending filing guidelines. OCGA § 9-11-6 (b) specifically outlines the procedure by which an attorney may extend the period for filing a summary judgment responsive brief. Thus, in order to extend the response period, First Community should have followed the statutory provisions regarding that situation.

We have fully examined the record and conclude that First Community’s remaining arguments regarding alleged error in the trial court’s granting of summary judgment are without merit, or are improperly before this court.

2. First Community’s second enumeration of error, which claims that the trial court erred in denying its motion for reconsideration, or, in the alternative, its motion to set aside judgment, is also without merit.

Judgment affirmed.

Sognier, C. J., Carley, P. J., Pope, Cooper, JJ., and Judge Arnold Shulman concur. McMurray, P. J., Birdsong, P. J., and Beasley, J., dissent.

McMurray, Presiding Judge,

dissenting.

I cannot agree with the constricted construction, adopted by the majority, of Rule 16 of the Uniform Rules for the Superior Court. The plain purpose of a provision for a leave of absence for counsel is so that the attorney may briefly turn his back on the practice of law without endangering the rights of a client. Whether the reason for a leave of absence is as pleasant as a well earned vacation or as tragic as a medical emergency, the purpose is not well served if the clock continues to run on a myriad of deadlines and rights are deemed to expire during the leave of absence. Under the view adopted by the majority, the term “leave of absence” is a serious misnomer as any perception of relief from the attorney’s responsibilities is in large part illusory.

I would broadly construe the reference in Rule 16 to “other legal proceedings,” and would hold that, subsequent to the filing of the complaint and initial appearance on behalf of defendant, a leave of absence extends filing deadlines. It follows, that in - my view, the mechanisms set forth in OCGA § 9-11-6 (b) for extending the time for filing a responsive brief to a motion for summary judgment should be viewed as a “legal proceeding” from which counsel is excused during a leave of absence, thereby precluding the expiration of time for filing a responsive brief and grant of summary judgment during the period of time covered by the leave of absence.

Beasley, Judge,

dissenting.

This court does not have jurisdiction in this case to address the issue of whether a leave of absence forestalls the time for filing a response to a motion for summary judgment.

That is an issue which was raised in defendant’s motion for reconsideration or, in the alternative, motion to set aside judgment under OCGA § 9-11-60 (d). The motion was filed a little over six weeks after defendant filed a notice of appeal from the grant of summary judgment, which judgment the motion attacked. The court below was deprived by defendant’s action in filing the notice of appeal from reconsidering any matters in the case other than those collateral to the issues on appeal. See Argonaut Ins. Co. v. Atlantic Wood Indus., 187 Ga. App. 477 (370 SE2d 770) (1988) (physical precedent) for a recitation of the scope of the trial court’s jurisdiction following filing of a notice of appeal. The trial court did not dismiss the motion, but it did deny it without addressing the merits, albeit for a different reason than stated above.

Defendant did not move for an extension of time for filing the notice of appeal, OCGA § 5-6-39, which could have been done to allow more time for the effort to eliminate the judgment, if 30 days from the entry of the judgment on February 22 was insufficient for considering and preparing the motion. Of course, a timely motion to set aside the judgment on the jurisdictional defect of lack of notice of the renewed motion for summary judgment would have extended the time of filing the notice of appeal from the judgment. In Cambron v. Canal Ins. Co., 246 Ga. 147 (1) (269 SE2d 426) (1980), the Supreme Court acknowledged that a motion to set aside would be a proper vehicle to test an allegation of lack of notice. See Intertrust Corp. v. Fischer Imaging Corp., 198 Ga. App. 812 (1) (403 SE2d 94) (1991). In Littlejohn v. Tower Assoc., Ltd., 163 Ga. App. 37 (293 SE2d 33) (1982), it was pointed out that a motion to set aside will extend the time for filing a notice of appeal. This is in addition to the time-extending motions in OCGA § 5-6-38 (a). Johnson v. Barnes, 237 Ga. 502, 504 (1) (229 SE2d 70) (1976). Compare the three-year rule in OCGA § 9-11-60 (f).

The notice of appeal in this case brings to our review only the order and judgment of the trial court entered February 22, establishing the priority of plaintiff’s lien over that of defendant/appellant bank and granting judgment against the other defendant, which is not a party to this appeal.

Decided January 29, 1992

Reconsideration denied April 2, 1992

William R. Harp, Henning, Aitkens, Snellings & Kearns, Stanley T. Snellings, for appellant.

Freed, Lester & Freed, Gary S. Freed, Janice A. Singer, Ross J. Adams, for appellee.

In addition to the merits of the motion for reconsideration and/or set aside being unaddressable by this court because the trial court’s jurisdiction had been ousted in the first place and because it did not rule on the merits in the second place, this court has no jurisdiction to decide the merits because defendant/appellant bank did not file an application for appeal of the order denying the motion. See OCGA § 5-6-35 (a) (8); Lewis v. Sun Mgmt., 187 Ga. App. 591 (370 SE2d 840) (1988). It has been held that an application is necessary even when appellant is appealing, and has a right to appeal, another order or judgment in the case such as the grant of summary judgment here. See Brooks v. Fed. Land Bank of Columbia, 193 Ga. App. 591 (388 SE2d 704) (1989) (physical precedent). That is to say, amending the original notice of appeal would not be sufficient. In this case, appellant did not even do that. It merely supplemented the record with the post-judgment proceedings. The issues documented in that supplemental record, including the one addressed by the majority and the dissent of my brethren, are not properly before the Court.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.

       For right to direct appeal of grant of summary judgment, see OCGA § 9-11-56 (h).


author: Johnson, Judge.

text:
    A91A1564.
    EVANS v. WILLIS et al.
    (418 SE2d 73)
   Johnson, Judge.

The appellees, L. D. and Marilyn Willis, sued the appellant, William L. Evans, d/b/a Deluxe Cleaners, seeking to recover damages for the latter’s alleged conversion of a wedding dress which the Willises had left at his retail dry cleaning establishment in 1965. In addition to damages for the loss of the dress itself, the Willises sought actual and punitive damages for intentional infliction of emotional distress, plus attorney fees based on Evans’ alleged stubborn litigiousness in refusing to pay the claim.

The complaint was filed on November 20, 1987, and was served upon Evans on December 9, 1987, with the result that the 30-day period within which he was required to file his responsive pleadings expired on January 8,1988. See generally OCGA § 9-11-12 (a). Although Evans’ answer contains a certificate of service specifying it was served upon opposing counsel by mail on that date, the answer was not actually filed with the clerk’s office until the next business day, January 11, 1988. More than 30 months later, on July 23, 1990, the Willises filed a “motion to strike and for entry of default judgment.” Evans responded on September 19, 1990, by filing a motion to open the default, accompanied by payment of costs and by his affidavit verifying the previously filed answer. However, following a hearing, the trial court denied Evans’ motion and entered judgment against him with respect to liability, reserving the issue of damages for trial. A jury subsequently awarded the Willises $1,000 each as actual damages for the conversion of the dress, $500 each as damages for emotional distress, and $1,421.50 each as attorney fees. This appeal followed.

1. “Under OCGA § 9-11-55 (b), ‘a prejudgment default (may) be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause; (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath; (2) offer to plead instanter; (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. (Cits.)’ [Cit.]” Grayson & Hollingsworth v. C. Hennings Studios, 194 Ga. App. 531, 532 (391 SE2d 8) (1990). There appears to be no dispute that the four “conditions” were met in this case. In particular, Evans offered testimony under oath which, if believed, would establish a meritorious defense to the complaint. Stinson v. Ga. Dept. of Human Resources, 171 Ga. App. 303 (5) (319 SE2d 508) (1984). The dispute is over whether the trial judge abused its discretion in concluding that Evans had failed to make a “proper case” for opening the default.

“ ‘The rule permitting opening of default is remedial in nature and should be liberally applied (cit.), for default judgment is a drastic sanction that should be invoked only in extreme situations. (Cits.) Whenever possible cases should be decided on their merits for default judgment is not favored in law. . . . Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense. (Cit.)’ [Cit.]” Whitley v. Bank South, N.A., 185 Ga. App. 896, 898 (366 SE2d 182) (1988).

In West v. Smith, 196 Ga. App. 69 (395 SE2d 302) (1990) (cert. denied), this court held that where, as here, the defendant’s responsive pleadings were timely served but filed a day late, the plaintiff made no issue of the lateness of the answer until it was too late for the default to be opened as a matter of right, pursuant to OCGA § 9-11-55 (a), and the defendant offered evidence under oath which, if believed, would establish a meritorious defense to the complaint, the trial court abused its discretion in refusing to open the default. In accordance with that decision, we likewise hold that the trial court erred in refusing to open the default in the present case.

Decided March 17, 1992

Reconsideration denied April 2, 1992

Edward J. Magner, Jr., for appellant.

Walter C. Herin, Jr., for appellees.

2. Evans’ remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1643, A91A1644.
    SEWELL v. OK OIL, INC.; and vice versa.
    (417 SE2d 408)
   Johnson, Judge.

OK Oil, Inc., sued Sewell seeking to enjoin him from violating a restrictive covenant which allegedly encumbered certain real property he had recently purchased. According to the complaint, this covenant “granted and conveyed unto [OK Oil] for thirty years the exclusive right to provide gasoline and diesel fuel for retail sales at the said location. . . .” Sewell counterclaimed, demanding, among other things, that OK Oil be required to remove from the premises any personal property it claimed to own and to furnish him with “the appropriate Environmental Protection Certificates and other certifications relative to said property upon the removal of ,said personal property as required by the rules and regulations of the Environmental Protection Agencies of the State of Georgia and the United States of America.”

The trial judge denied cross motions for summary judgment filed by the parties, whereupon each filed an application for interlocutory appeal, with OK Oil directing its application to the Supreme Court and Sewell directing his to this court. Because the relief sought in the action is equitable in nature, we transferred Sewell’s application to the Supreme Court; however, the Supreme Court transferred it back to us, along with OK Oil’s application. We then granted both applications.

Sewell had purchased the. property at issue from Ms. Patricia Waggoner on August 14, 1990, receiving from her a warranty deed which contained no reference to any restrictive covenant or other encumbrance. Some three years prior to this transaction, on June 8, 1987, Ms. Waggoner had entered into a contract with OK Oil whereby OK Oil had agreed both to furnish petroleum products to the property and to install and maintain tanks, pumps and other equipment necessary to the operation of a self-service retail gasoline outlet, and she had agreed not to market any other company’s petroleum products at that location. The contract specified that OK Oil would retain title to the equipment which it supplied to the property, that such equipment would not become part of the realty, that it would have “unlimited access to its equipment at the location to deliver product, read pumps or tanks, etc.,” and that it would pay “all state, county or city ad valor [e]m taxes and assessments, general and special, upon its property at the location.”

Contemporaneously with the execution of this contract, Wag-goner and OK Oil executed a separate document, denominated an “indenture,” which contained a legal description of the realty and specified, with reference to that description, as follows: “That [Wag-goner], in consideration of the terms, covenants, conditions, and agreements on the part of [OK Oil] that are mentioned, demises and encumbers to [OK Oil], and [OK Oil] acquires rights therein from [Waggoner], to the following property (the demised premises) ... To have and to hold the premises for the term commending (sic) on the 8th day of June 1987 and ending on the-day of September, 2008, or upon the completion of the term as prescribed, upon the terms, covenants and conditions contained in a certain collateral agreement between the parties bearing the same date as this instrument and executed contemporaneously herewith.” Although Waggoner’s signature on this “indenture” does not appear to have been properly attested (see generally OCGA § 44-5-30), OK Oil recorded it in the county deed records; and it is apparently not disputed that Sewell had actual knowledge of its existence at the time he purchased the property from Waggoner. The issue before us is whether the covenant between OK Oil and Waggoner was purely personal or whether it created an encumbrance which was enforceable against a subsequent purchaser of the property.

The Supreme Court has held that in order for a covenant to run with the land, “ ‘its performance or nonperformance must affect the nature, quality, or value of the property demised, independent of collateral circumstances, or it must affect the mode of enjoyment, and there must be a privity between the contracting parties.’ ” Copelan v. Acree Oil Co., 249 Ga. 276, 277-278 (290 SE2d 94) (1982), quoting from Atlanta Consolidated St. R. Co. v. Jackson, 108 Ga. 634, 638-639 (34 SE 184) (1899). “An agreement restricting the use of real estate not resulting from ‘privity of estate’ is not a covenant running with the land but a personal obligation of the parties not binding upon their assignees.” Johnson v. Myers, 226 Ga. 23 (172 SE2d 421) (1970). The Court indicated in Johnson, supra, that for privity of estate to exist, ‘“there must first be an interest or estate therein granted, the covenant must relate to the interest or estate granted, and the act to be done must concern the interest created or title conveyed.’ ” Id. at 26, quoting from Grant-Jeter Co. v. American Real Estate Co., 159 Ga. 80, 83 (125 SE 73) (1924). However, in Rosen v. Wolff, 152 Ga. 578, 585-586 (110 SE 877) (1922), the Supreme Court stated: “There is a growing tendency to incorporate equitable doctrines with common-law rules, and, in equity, covenants relating to land, or its mode of use or enjoyment, are frequently enforced against subsequent grantees with notice, whether named in the instrument or not, and though there is no privity of estate. It is immaterial in such cases whether the covenant runs with the land or not, the general rule being that it will be enforced according to the intention of the parties. It is only necessary, that the covenant concern the land or its use, and that the subsequent grantee has notice of it. Covenants are so enforced on the principle of preventing a party having knowledge of the just rights of another from defeating such rights.” Accord Guerin v. Webster, 233 Ga. 521 (1) (212 SE2d 352) (1975).

The issue in Copelan v. Acree Oil Co., supra, as in the present case, was whether an exclusive marketing arrangement pertaining to the operation of a gas station constituted a covenant running with the land so as to bind a successor in title. There, a gas station owner had entered into a “lease” agreement with a wholesale distributor of petroleum products wherein he had agreed to continue operating a gas station on the property during the term of the “lease,” selling only the petroleum products of the distributor. The property was subsequently sold to another individual, who signed a similar contract with the distributor, and was thereafter purchased by a bank at a foreclosure sale. The bank then sold it to Copelan, warranting title “except as to . . . any claim of leaseholder rights and interests of [the distributor].” The Supreme Court concluded that “no estate for years and no interest in land [had been] created” by the agreement between the distributor and Copelan’s predecessor in title because, “though denominated a ‘lease’ by the parties, [it] convey[ed] no right of occupancy or control by the ‘lessee,’ but the owner, denominated as ‘lessor,’ retained] the full enjoyment of the property.” Id. 249 Ga. at 278. Without discussing the equitable principles set forth in Rosen v. Wolff, supra, the Court held that under these circumstances the agreement could not “be amplified so as to constitute a covenant running with the land” which would operate to bind Copelan as a successor in title. Copelan, supra at 278.

In the present case, unlike Copelan, the prior property owner did not retain “the full enjoyment of the property” but rather conveyed to the oil company both the right to install and maintain such tanks, pumps and other equipment on the property as were necessary to the operation of a self-service retail gasoline outlet at that location and the right of “unlimited access to its equipment at the location to deliver product, read pumps or tanks, etc.” We conclude that this was a sufficient “right of occupancy or control” to create a “privity of estate” between the prior property owner and the oil company, thereby rendering the covenant enforceable against a subsequent purchaser of the property acquiring title with notice of its existence. Moreover, under the rationale of Rosen v. Wolff, supra, the covenant would appear to be enforceable in equity against Sewell whether it “runs with the land” or not. Accordingly, we hold that the trial court erred in denying OK Oil’s motion for summary judgment, though not in denying Sewell’s motion for summary judgment.

Decided March 18, 1992

Reconsideration denied April 2, 1992

Jack F. Witcher, Maryellen S. Mitchell, for appellant.

Tisinger, Tisinger, Vance & Greer, J. Thomas Vance, Robert H. Sullivan, for appellee.

Judgments affirmed in part and reversed in part with direction.

Carley, P. J., and Beasley, J., concur.


author: Pope, Judge.

text:
    A91A1708.
    AUSTIN et al. v. KAUFMAN et al.
    (417 SE2d 660)
   Pope, Judge.

Jessie Mae Austin, a 60-year-old woman, underwent a routine lumbar diskectomy for correction of a herniated disc at the L4-L5 level. During the course of the operation, defendant Dr. G. Phillip Kaufman severed the patient’s left iliac artery and extensively injured the left iliac vein. Mrs. Austin began hemorrhaging during surgery, and after several unsuccessful surgical attempts were undertaken to repair the damage to her vascular system, Mrs. Austin died. This medical malpractice action was brought against Dr. Kaufman and Cobb Neurological Associates, P.C., by the decedent’s husband Jessie R. Austin, individually and in a representative capacity for the couple’s nine children, and Carolyn Austin, administratrix of the decedent’s estate. The case was tried before a jury and a verdict in favor of plaintiffs was returned. Defendants moved for a judgment n.o.v. and, in the alternative, for a new trial. The trial court granted both motions, and plaintiffs appeal.

1. In its order granting defendants’ motion for judgment n.o.v., the trial court determined that plaintiffs failed to offer expert testimony establishing negligence on the part of Dr. Kaufman; rather plaintiffs’ expert witness merely inferred negligence based on the fact that an injury to Mrs. Austin occurred during the procedure. The trial court further determined that because plaintiffs’ expert witness failed to set forth with particularity how and in what way Dr. Kaufman deviated from the parameters of standard conduct for this procedure (i.e., whether he used the wrong surgical instrument, rushed the procedure, used the wrong surgical technique, etc.), the expert witness’ conclusion that Dr. Kaufman was negligent in this instance could only have been based upon the fact that an injury resulted; that is, res ipsa loquitur.

Res ipsa loquitur is not applicable in medical malpractice cases in Georgia. “In a medical malpractice case, ‘the general rule is that medical testimony must be introduced to inform the jurors what is a proper method of treating the particular case. “The . . . jury must have a standard measure which they are to use in measuring the acts of the doctor in determining whether he exercised a reasonable degree of care and skill.” ’ [Cits.]” Horney v. Lawrence, 189 Ga. App. 376, 377 (2) (375 SE2d 629) (1988). Expert testimony must also set forth how or in what way the defendant deviated from the parameters of the acceptable professional conduct. Loving v. Nash, 182 Ga. App. 253 (1) (355 SE2d 448) (1987).

During the trial of the case, plaintiffs’ expert witness testified on direct examination that, during a procedure of this kind, there is an implied requirement that the surgeon confine himself to the operative field and not stray from the field of surgery into a body cavity where he has no business being. From this testimony, the parameters of acceptable professional conduct for this procedure were clearly established — a doctor should not stray from the operative field and enter the abdominal cavity where he can injure the patient’s vascular system. The expert witness also testified that in his opinion Dr. Kaufman deviated from the applicable standard of care.

The trial court erred in holding that plaintiffs improperly relied on the doctrine of res ipsa loquitur to establish negligence in this case. Plaintiffs did not themselves raise the doctrine to establish an inference of negligence in this case. Cf. Young v. Yarn, 136 Ga. App. 737 (2) (222 SE2d 113) (1975). Rather, plaintiffs produced an expert witness who testified to the parameters of acceptable professional conduct for this procedure; that is, a surgeon should not leave the surgical field of operation, enter an abdominal cavity, or lacerate an iliac artery or vein during the course of this procedure. Furthermore, in this case there is no dispute concerning whether Mrs. Austin’s injuries or subsequent death were caused by Dr. Kaufman. Cf. Fox v. Co hen, 160 Ga. App. 270 (287 SE2d 272) (1981). The sole issue is whether Dr. Kaufman’s act of injuring Mrs. Austin’s iliac vein and artery constituted actionable negligence. Finally, other testimony was presented, particularly the cross-examination of Dr. Kaufman, from which a jury could determine that defendant negligently performed this procedure. Cf. Hayes v. Brown, 108 Ga. App. 360 (3) (133 SE2d 102) (1963).

“Negligence, like any other fact, may be proved by circumstantial evidence as well as by direct testimony. Although expert opinion testimony may be required in a medical malpractice case to prove the applicable standard of care and a breach thereof, we are aware of no rule which prevents circumstantial evidence from being used to prove those facts upon which the expert relies in formulating his opinion that such negligence occurred. It is for the jury to determine whether the facts upon which the expert bases his opinion do exist and, if so, whether the expert’s opinion that those facts constituted medical malpractice should be accepted. In determining medical malpractice, the jury may consider all the attendant facts or circumstances which may throw light on the ultimate question. . . . And where, measured by the method shown by medical witnesses to be negligence, the evidence shows a bad result, it is the province of the jury to say whether the result was caused by negligence.” (Emphasis in original; citations and punctuation omitted.) Packer v. Gill, 193 Ga. App. 388, 390 (5) (388 SE2d 338) (1989). After reviewing the entire transcript of the trial, particularly the cross-examination of Dr. Kaufman, we do not agree with the trial court’s conclusion that the evidence in this case demanded, as a matter of law, a determination that Dr. Kaufman was not negligent in performing this procedure. See Horney v. Lawrence, supra at 377.

The trial court also concluded that because Dr. Kaufman and the other expert witnesses testifying on his behalf agreed that injury to the iliac vein and artery is a recognized complication of this procedure, Dr. Kaufman could not, as a matter of law, have been negligent in causing Mrs. Austin’s injury. In support of this position, the trial court also referred to plaintiffs’ expert witness’ testimony on cross-examination, in which he stated he could not teach defendant how to avoid the injury, this injury could be caused by a careful neurosurgeon, and he had never caused such an injury because he had been lucky. Yet, the plaintiffs’ expert witness, Dr. Kaufman, and one of defendants’ expert witnesses indicated that this kind of injury to the vascular system was extremely rare, and in most instances, a lumbar diskectomy is performed without any injury occurring to a patient’s iliac vein or artery. This expert testimony created a factual dispute as to whether Mrs. Austin’s injury and death were merely expected complications of the procedure which under any set of circumstances could not have resulted from the negligence of Dr. Kaufman, or whether her injury resulted, in this instance, from Dr. Kaufman’s failure to conform to the applicable standard of care for this procedure. See Messex v. Lynch, 255 Ga. 208, 210 (336 SE2d 755) (1985); Horney v. Lawrence, supra at 378.

“[A] motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” (Citations and punctuation omitted.) Famiglietti v. Brevard Medical &c., 197 Ga. App. 164 (1) (397 SE2d 720) (1990). We cannot say that the evidence demanded a verdict for defendants in this instance. Accordingly, the trial court’s grant of defendants’ motion for judgment n.o.v. was in error.

2. We next address the trial court’s grant of a new trial to defendants. “ ‘While ordinarily the first grant of a new trial will not be disturbed by this court, where . . . the first grant of a new trial is based on a special ground involving a question of law, the trial court’s order is reviewable on appeal.’ [Cit.]” Famiglietti v. Brevard Medical &c., supra at 169. Because defendants’ motion for new trial raised eight specific allegations of error authorizing the grant of a new trial, none of which was the general grounds, we conclude that the trial court’s order granting a new trial in this case is reviewable by this court.

We reject defendants’ argument that the trial court’s order impliedly contained a grant of new trial on the general grounds. “In all civil cases in which a new trial is granted, if the grant of a new trial is based on the discretion of the judge, the judge shall set forth by written order the reason or reasons for the exercise of his discretion.” OCGA § 5-5-51. Because the trial court’s order contains no reference to the reasons for the exercise of its discretion, we must conclude that a new trial was granted on the special grounds raised by defendants. Thus, we will review each of the special grounds raised below.

3. Defendants first argued the trial court erred in submitting evidence to the jury in the form of res ipsa loquitur. In accordance with our holding in Division 1 of this opinion, this argument is without merit.

4. Defendants next contended the trial court erred by allowing testimony concerning the issue of informed consent and indicating that Dr. Kaufman was required to disclose to Mrs. Austin the risks of this procedure. The challenged testimony was admitted during cross-examination of Dr. Kaufman, in response to his assertion on direct examination that injury to the iliac veins and arteries is a known risk of the surgery performed on Mrs. Austin. Plaintiffs’ counsel cross-examined Dr. Kaufman at great length as to whether the defendant had, in fact, explained this particular risk to Mrs. Austin (i.e., injury to the vascular system possibly resulting in death), and about his notation on Mrs. Austin’s medical records that he had discussed with the patient the risks, goals and alternatives of treatment “in depth.”

Defendants asserted that at the time of Mrs. Austin’s surgery, the informed consent doctrine was not a viable principle of law in Georgia because the general rule at that time was that an executed consent form was conclusively presumed to be valid. (Holbrook v. Schatten, 165 Ga. App. 217, 218 (299 SE2d 128) (1983); Young v. Yarn, supra at 738). Consequently, defendants argued, any testimony touching upon the issue of informed consent was improper. “If evidence can be duly admitted under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories; that is, evidence should be admitted if it is admissible for any purpose. [Cits.]” Weaver v. Ross, 192 Ga. App. 568, 570 (1) (386 SE2d 43) (1989). Since the testimony in question was not offered to prove the elements of a cause of action based upon informed consent, but rather to impeach Dr. Kaufman’s assertion that the complications suffered by Mrs. Austin were a known risk of the procedure, the trial court did not err in allowing this evidence. Cf. Padgett v. Ferrier, 172 Ga. App. 335 (1) (323 SE2d 166) (1984).

5. Defendants also contended that the trial court erred by allowing testimony which put before the jury the issue of fraudulent misrepresentation. Mrs. Austin’s surgery occurred on August 24, 1987, which was prior to the effective date of OCGA § 31-9-6.1. At that time, a duly executed consent to surgery which disclosed the general terms of the treatment given was “conclusively presumed to be a valid consent in the absence of fraudulent misrepresentations of material facts in obtaining the same.” OCGA § 31-9-6 (d). After Dr. Kaufman testified on direct examination that injury to the iliac veins and arteries is a recognized risk of the procedure performed on Mrs. Austin, plaintiffs’ counsel cross-examined Dr. Kaufman regarding his notation on Mrs. Austin’s medical records that he had discussed with the patient the risks, goals and alternatives of treatment “in depth.” Mrs. Austin’s daughter was called as a witness to testify that she had been present during Mrs. Austin’s conference with Dr. Kaufman and had not heard him discuss the risk of bleeding and death with her mother. In support of their motion for new trial, defendants sought to persuade the trial court, based on Kelly v. Reid, 186 Ga. App. 89 (366 SE2d 315) (1988), that any evidence on the subject of fraudulent misrepresentation was improper because Georgia law imposed no duty on Dr. Kaufman to inform Mrs. Austin of the risks of this procedure. We conclude the trial court did not err by allowing this testimony. The testimony in question was not offered to prove fraudulent misrepresentation under OCGA § 31-9-6 (d), but rather to impeach Dr. Kaufman’s assertion that the risks of this procedure were discussed with the patient “in depth.” Weaver v. Ross, supra at 570.

6. Defendants also claimed the trial court erred in refusing to allow defendants during trial to produce and refer to the medical literature upon which Dr. Kaufman based his expert opinion that he had not negligently performed this procedure. Defendants contended that the medical literature should have been admissible as evidence. “An expert may testify as to his opinions derived from a book, [cit.], and his credibility may be tested by reference to a standard treatise in his field of expertise. [Cit.]” Dean v. State, 250 Ga. 77, 82 (4) (295 SE2d 306) (1982). However, medical articles are not themselves admissible as evidence. Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770 (14) (278 SE2d 653) (1981). Thus, the trial court did not err in excluding this evidence.

7. Defendants next argued the trial court erred in allowing expert testimony from the medical examiner who signed Mrs. Austin’s death certificate. The medical examiner had not been identified by plaintiffs as an expert witness during discovery but had been identified as an expert witness on the pretrial order. OCGA § 9-11-26 (b) (4) (A) (i) requires a party to identify during discovery each expert who will appear at trial, provide a summary on which the expert is expected to testify, and state the substance of the facts and opinions to which the expert is expected , to testify and a summary of the grounds for each opinion. However, this court has held that the requirements of this Code section apply only to experts whose knowledge of the facts and opinions held were acquired or developed in anticipation of litigation or for trial, and not to an expert witness who is in fact an actor or observer of the subject matter of the suit. Candler General Hosp. v. Joiner, 180 Ga. App. 455 (2) (349 SE2d 756) (1986). The medical examiner in this case, by virtue of signing Mrs. Austin’s death certificate, was an actor or observer of the subject matter of the suit. Consequently, the trial court did not err in allowing his testimony.

8. Defendants also raised as error the trial court’s refusal to give defendants’ requested charges 12, 13, 14 and 17. However, we find that each of these requests was adequately covered by the court in its own charge to the jury. Skipper v. Dept. of Transp., 197 Ga. App. 634 (5) (399 SE2d 538) (1990). Accordingly, the trial court did not err by failing to give defendants’ requested charges in the exact language requested.

9. Defendants also urged the trial court to grant a new trial because the trial court included plaintiffs’ request to charge concerning fraudulent misrepresentation at the end of the charge to the jury. The record indicates that defendants submitted a request to charge that portion of OCGA § 31-9-6 (d) which provides that a physician does not have a duty to disclose to his patient the risks of treatment, but only the general terms of treatment. Plaintiffs’ disputed request to charge requested the trial court to charge the remaining portion of OCGA § 31-9-6 (d): “If a physician undertakes to warn the patient of the risks of the proposed procedure in response to a patient’s inquiry, he is required to be truthful and accurate. A consent for surgical treatment is not valid if it was obtained by fraudulent misrepresentation of fact.” Because plaintiffs sought recovery against defendants in negligence and not battery or fraudulent misrepresentation, defendants argued that the inclusion of this charge and its placement at the end of the court’s charge were extremely prejudicial to defendants. We agree.

“ ‘A charge which injects into the case and submits for the jury’s consideration issues not made by the pleadings or the evidence tends to confuse the jury as to the true issue in the case, is probably harmful to [defendants], and is error requiring the grant of a new trial.’ [Cit.]” (Citations and punctuation omitted.) McCoy v. Alvista Care Home, 194 Ga. App. 599, 601 (391 SE2d 419) (1990). Plaintiffs in this case did not initially allege a cause of action for battery or fraudulent misrepresentation and were not permitted by the trial court to amend their pleadings during trial to include these claims. Yet, the trial court’s charge on informed consent and fraudulent misrepresentation clearly presented those issues for jury determination. In the absence of limiting instructions by the trial court explaining that the only issue before the jury for consideration was whether or not defendants were negligent, “[we] cannot say that charging the jury concerning [OCGA § 31-9-6 (d)] did not confuse them as to whether the issue[s] of [informed consent and fraudulent misrepresentation were also] to be considered by them.” Koppar Corp. v. Robertson, 186 Ga. App. 856, 858 (1) (368 SE2d 807) (1988). See also Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109 (2) (387 SE2d 144) (1989). Thus, the trial court’s charge on both portions of OCGA § 31-9-6 (d) was error, and the trial court’s grant of a new trial on this ground was proper.

10. Defendants lastly argued the trial court erred because the jury verdict form did not contain special interrogatories on the issues of fraudulent misrepresentation and informed consent. In Division 9 of this opinion, we held that the issues of informed consent and fraudulent misrepresentation were improper for jury consideration. Consequently, the trial court did not err by failing to include special interrogatories addressing these issues on the jury verdict form.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Cooper, J., concur.

Decided February 25, 1992

Reconsideration denied April 2, 1992

Davis, Gregory & Christy, Hardy Gregory, Jr., The Malone Firm, Thomas W. Malone, Baker & Chambers, Eugene B. Chambers, Jr., for appellants.

Alston & Bird, Bernard Taylor, Lori G. Cohen, G. Conley Ingram, Earle B. May, Jr., for appellees.


author: Cooper, Judge. Pope, Judge,

text:
    A91A1771.
    STATE FARM FIRE & CASUALTY COMPANY v. GUEST.
    (417 SE2d 419)
   Cooper, Judge.

This interlocutory appeal arises out of an action brought by appellee to recover under the uninsured motorist provisions of an automobile insurance policy issued by appellant. Following the trial court’s denial of appellant’s motion for summary judgment, we granted the appeal to determine whether the “physical contact” requirement of the uninsured motorist statute was satisfied in this case.

Appellee was injured in a single-vehicle accident which occurred when appellee lost control of the car she was driving after she struck a tire assembly lying in the center lane of a highway. The car was insured under a policy which provided uninsured motorist coverage. Appellee filed a “John Doe” action against appellant alleging that the tire assembly detached from an unidentified truck whose driver negligently left the tire assembly in the middle of the highway. Appellant filed a motion for summary judgment contending that appellee was not entitled to recover because there had been no actual physical contact with an unknown motor vehicle as required by OCGA § 33-7-11 (b) (2).

OCGA § 33-7-11 (b) (2) provides: “A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown . . . and, in order for the insured to recover . . . where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” (Emphasis supplied.)

We reject at the outset appellee’s argument that under a liberal reading of the statute, physical contact between an insured vehicle and a motor vehicle part constitutes actual physical contact with a motor vehicle. “Motor vehicle” is defined in OCGA § 33-34-2 (6) as “a vehicle having more than three loadbearing wheels . . . and driven by power other than muscular power.” In OCGA § 40-1-1 (33) “motor vehicle” is defined as “every vehicle which is self-propelled.” We are aware of no Georgia cases which have considered the issue of whether a tire assembly constitutes a motor vehicle, and in the absence of binding authority, we must read OCGA § 33-7-11 (b) (2) “according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending [its] operation. [Cit.]” Integon Indem. Corp. v. Canal Ins. Co.. 256 Ga. 692, 693 (353 SE2d 186) (1987). The tire assembly was neither a self-propelled vehicle nor a vehicle having more than three wheels, and even applying a liberal construction, we cannot conclude that the tire assembly was a motor vehicle within the meaning of the uninsured motorist statute.

However, our inquiry does not end here, for our conclusion that a tire assembly is not a motor vehicle does not necessarily preclude recovery where there is no direct physical contact between the unknown motor vehicle and the insured vehicle. Such an arbitrary preclusion of coverage would not be in accordance with “the intent of the legislature to create a reasonable rule which would reduce the possibility of fraudulent claims where the phantom vehicle did not cause actual physical contact, while still allowing an innocent automobile victim ‘coverage for accidents caused by unknown motorists where the unknown motorist vehicle does not physically contact the insured’s vehicle’. . . . [Cits.]” Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48 (3) (397 SE2d 466) (1990). We have found sufficient physical contact under the statute where an unknown vehicle strikes an intervening vehicle which then strikes the claimant’s vehicle. See State Farm &c. Ins. Co. v. Carlson, 130 Ga. App. 27 (1) (202 SE2d 213) (1973). Carlson, however, was decided under a previous version of OCGA § 33-7-11 (b) (2), which did not include the exception to the physical contact requirement providing for the corroboration by an eyewitness of the claimant’s description of how the accident occurred. The corroboration exception has been interpreted as imposing two requirements for recovery. First, the claimant’s description must include a claim that the accident was caused by an unknown vehicle and second, the corroboration must also implicate the unknown vehicle. Hoffman v. Doe, 191 Ga. App. 319, 320-321 (381 SE2d 546) (1989). This court has held that the exception to the physical contact requirement has not been met where the claimant did not see the unknown vehicle even though an eyewitness to the accident saw the unknown vehicle (see Bell v. Coronet Ins. Co., 197 Ga. App. 211 (1) (398 SE2d 242) (1990)), and where the eyewitness could not corroborate, except by conjecture, the claimant’s contention that the accident was caused by an unknown vehicle. See National Surety Corp. v. O’Dell, 195 Ga. App. 374, 375 (393 SE2d 504) (1990). In a recent case decided by this court, the claimant contended that an unknown vehicle dropped a cardboard box which then caused another vehicle to strike claimant’s vehicle. We held that there could be no recovery because no one saw the box drop from the truck, therefore there were no eyewitnesses to corroborate the claimant’s description of the occurrence. See Scott v. Allstate Ins. Co., 200 Ga. App. 296 (407 SE2d 492) (1991).

Several jurisdictions with statutes comparable to OCGA § 33-7-11 (b) (2) have, in cases where there was no direct physical contact between the unknown vehicle and the insured vehicle, allowed recovery under what is known as the “indirect physical contact” doctrine. For example, where an object in the roadway is propelled into the insured’s vehicle by an unknown vehicle, courts have allowed recovery, reasoning that a substantial physical nexus exists between the unknown vehicle and the insured vehicle. See Southern Farm Bureau &c. Ins. Co. v. Brewer, 507 S2d 369 (Miss. 1987); Allied Fidelity Ins. Co. v. Lamb, 361 NE2d 174 (Ind. Ct. App. 1977). We are aware of no Georgia cases which have utilized the “indirect physical contact” doctrine or which have determined the question presented by this case of whether the collision with a motor vehicle component lying in the highway constitutes physical contact under OCGA § 33-7-11 (b) (2). However, we have discovered two cases from other jurisdictions which involved almost identical facts to those in this case. In Blankenbaker v. Great Central Ins. Co., 281 NE2d 496 (Ind. Ct. App. 1972), the driver of a camper was injured in a single vehicle accident when he struck a tire assembly lying in his lane of travel on the highway. The court, after concluding as a matter of law that there was no direct physical contact with an automobile because the tire assembly was not an automobile, considered the question of whether there was “indirect physical contact” with an automobile. The court rejected the “indirect physical contact” doctrine finding that there was a “total lack of evidence tending to establish a causal connection between some vehicle and this tire and rim assembly.” Blankenbaker, supra at 501-502. The court also concluded that a showing that the assembly was part of a hit-and-run vehicle was required to invoke the indirect physical contact doctrine. However, in Adams v. Mr. Zajac, 313 NW2d 347 (Mich. Ct. App. 1981), the driver of a car was killed when he lost control of his car after striking or swerving to avoid a tire assembly lying in the highway. The court held that physical contact occurs “when a vehicle or an integral part of it comes into physical contact with another vehicle.” (Emphasis supplied.) Adams, supra at 349. The court further held the inference drawn from the contact with the tire assembly should be weighed by the trier of fact to determine whether another vehicle was actually involved. Adams, supra at 350. Although we are not bound by either case we find the Adams case is more consistent with the intent of our legislature to “create a reasonable rule which would reduce the possibility of fraudulent claims. ...” Atlanta Cas. Ins. Co. v. Crews, supra at 50.

The undisputed facts in this case show that appellee’s car collided with a tire assembly which was in the middle of the highway; that at the time of the collision the tire assembly was not attached to any specific motor vehicle; and that no one, including appellee, saw the tire assembly detach from any motor vehicle. “ ‘The cardinal rule of the summary (judgment) procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. (Cit.)’ [Cit.] ‘ “(T)he party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence.” ’ [Cit.]” Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85) (1991). We find that a reasonable inference to be drawn from appellee’s collision with a tire assembly — an integral part of a motor vehicle — is that the tire assembly was negligently attached to an unknown vehicle from which it fell and left in the roadway by the driver of that unknown vehicle. See J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727 (4) (380 SE2d 282) (1989). That inference, as well as any other inference, is circumstantial evidence which the jury must consider along with all of the other evidence to be weighed in its determination of where the preponderance of the evidence lies on the issue of whether an unknown motor vehicle caused the accident. Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61 (3) (114 SE2d 517) (1960). Accordingly, we hold that under the facts of this case, the trial court did not err in denying appellant’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

I do not concur in the holding that a collision with a component part of an automobile can never, as a matter of law, be a collision with a motor vehicle within the meaning of the Georgia uninsured motorist statute. Pursuant to the Georgia uninsured motorist statute, the plaintiff may recover uninsured motorist benefits in this case either by showing that she actually collided with an unknown vehicle or by providing a description of how the accident was caused by an unknown vehicle, which is corroborated by the testimony of an eyewitness. See OCGA § 33-7-11 (b) (2). In this case, it is not necessary to conclude whether the plaintiff actually collided with an unknown vehicle when she collided with the tire and rim assembly lying in the roadway. Instead, the plaintiff/claimant alleges that the accident was caused by a rim and tire assembly and that her description of the accident is supported by three eyewitnesses. Thus, the defendant is not entitled to summary judgment on the ground that the plaintiff did not have actual physical impact with an unknown vehicle. She may recover under the corroborated description alternative of the uninsured motorist statute.

In this case, neither the claimant nor the eyewitnesses will be able to describe the existence of an unknown vehicle. Nevertheless, their description at least includes, by implication from the circumstances, the existence of an unknown vehicle. Cf. Hoffman v. Doe, 191 Ga. App. 319 (381 SE2d 546) (1989) (in which the claimant was not able to give a description of the accident which implied a phantom vehicle). The issue, then, is whether the existence of a phantom vehicle, under the particular circumstances of this case, may be supplied by circumstantial evidence and implication. I agree that pursuant to this court’s holding in J. C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727 (380 SE2d 282) (1989) the existence of a phantom vehicle may be established by the circumstances, opinion testimony and from “the jury’s common sense. . . .”

The defendant in this case is not entitled to summary judgment because it has not pierced the allegation that the accident was caused by an unknown vehicle. The defendant has presented no evidence of how the tire assembly came to be in the roadway, but merely stated that it could have arrived there by any means, including the intentional act of a miscreant. But this argument was rejected in Woodard, in which we concluded: “If appellant contends, as it obviously does, that the [component part of a vehicle] might have come from anywhere, then it must concede the possibility and, according to the witnesses, the likelihood, that it fell from a [vehicle] after being fastened insecurely.” Id. at 731. Here, the plaintiff has not yet offered any testimony or other evidence to support its allegation that the tire assembly came from a motor vehicle. But the party opposing a motion is under no duty to present evidence in opposition to the motion until the moving party has produced evidence demanding a judgment. Horton v. Wombles, 182 Ga. App. 214 (2) (355 SE2d 124) (1987); Peoples Bank &c. v. Austin, 159 Ga. App. 223 (2) (283 SE2d 81) (1987). Just as the trial evidence in Woodard did not demand a verdict that the component part which caused the accident had not originated from a motor vehicle, likewise in this case the record does not demand a judgment that the tire assembly did not originate from a motor vehicle, as the plaintiff alleges. A jury issue is presented concerning whether the tire assembly fell off a motor vehicle or came to be in the road by any other means.

Decided March 19, 1992

Reconsideration denied April 2, 1992

Blasingame, Burch, Garrard & Bryant, Andrew J. Hill III, Gregory A. Daniels, for appellant.

Scott & Quarterman, Howard T. Scott, Donald T. Wells, Jr., for appellee.