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Oakes v. Magat

The doctrine of res ipsa loquitur does not apply to medical malpractice suits.

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Appellants-plaintiffs, John H. Oakes and April R. Oakes, appeal from the grant of summary judgment to appellees-defendants, Wilfrido Matinez Magat, M. D., Snellville Anesthesia Services, and John Does I-V collectively “Dr. Magat”, in this medical malpractice/loss of consortium action. The record shows that Mr. Oakes underwent outpatient surgery for the removal of two benign breast masses on August 21, 1998. Dr. Magat of Snellville Anesthesia Services administered general anesthesia in support of the procedure. Nearly a year later, Mr. Oakes was diagnosed as having lost the functional use of his right lung —this diagnosed as for phrenic nerve paralysis. By their complaint for damages, filed on August 18, 2000, under OCGA § 9-11-9.1 b, the Oakeses alleged medical malpractice against Dr. Magat for injuring Mr. Oakes’s phrenic nerve with attendant loss of lung function due to the elongation of his neck in order to anesthesize him by intubation.1 Dr. Magat timely answered, denying the material allegations of the complaint. Mr. Oakes filed the affidavit of his expert approximately three months later.2 Dr. Magat moved for summary judgment on February 6, 2000, asserting that the Oakeses had failed to present any evidence showing professional negligence or proximate causation. On November 18, 2002, following a hearing on the motion, the superior court granted Dr. Magat summary judgment, finding no “medical testimony on the basis of which a jury could find that Dr. Magat 1 violated the standard of care or 2 caused Mr. Oakes any injury” in that “the Oakeses had not contradicted Dr. Magat’s affidavit with testimony of a competent medical expert.” The Oakeses appeal, and finding no error, we affirm. Held :

1. The Oakeses challenge summary judgment for Dr. Magat, contending that his affidavit in support thereof was based on medical records outside the record contrary to OCGA § 9-11-56 e. We disagree.

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