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Armstrong v. Rapson

In the absence of a complete transcript, the Court affirmed the denial of the defendant's motion for summary judgment.

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In this medical malpractice action involving a sponge left in a patient, Dr. Ned Armstrong and his professional corporation Orthopaedic Surgery, P. C. appeal from the denial of their motion for summary judgment. They claim no evidence showed that Dr. Armstrong acted negligently in the surgery at issue. Because defendants omitted from the appellate record evidence relied on by the trial court in denying summary judgment, we must affirm. We note first that the notice of appeal filed by defendants Dr. Armstrong and his corporation was not in the form directed by OCGA § 5-6-37 in that, rather than designating portions of the record to be omitted on appeal, defendants instructed that only items listed on the notice of appeal be included in the record sent to this court. Under the statutory scheme, the notice of appeal provides information concerning omission of portions of the record before the lower court. See Bennett v. Executive Benefits, Inc. 1 Thus, we are unable to discern from the notice of appeal what evidence was omitted from the appellate record.

Nonetheless, as in Bennett , “after study of the record sent up and communication with the clerk of the court below, it is apparent that under the directions contained in the notice of appeal, some portion of the evidence upon which the trial court relied in this case has been omitted from the record on appeal.” Id. For example, several depositions on file in the trial clerk’s office were not included in the appellate record designated by defendants, including the deposition of an expert nurse Stevenson, who apparently testified as to the meaning of a key medical record on the surgery at issue and the sponge count and who was quoted to this effect in plaintiff’s brief in opposition to summary judgment.

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