
    Melinda EARLY v. William E. NOBLIN, III.
    78-701.
    Supreme Court of Alabama.
    Jan. 11, 1980.
    Rehearing Denied Feb. 8, 1980.
    Calvin M. Whitesell, Montgomery, for appellant.
    Thomas H. Keene and Charles Stakely, Jr., of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
   BEATTY, Justice.

Plaintiff appeals from a summary judgment granted in favor of defendant in a medical malpractice action. We affirm.

On November 17, 1976, plaintiff Melinda Early severely cut her right wrist while attempting to raise a window. After Miss Early was taken to the hospital, she was examined by defendant, Dr. William E. Noblin, III, a plastic surgeon. Dr. Noblin concluded that two of the tendons in Miss Early’s wrist had been severed and that the ulnar nerve had been partially cut. Defendant cleaned the wound and repaired the tendons, but did not attempt to treat the damáged nerve. Dr. Noblin saw Miss Early in his office the next morning and regularly thereafter until June 30, 1977. Although Miss Early was under the impression that defendant was planning to operate again on her wrist soon after the first operation, it appears that Dr. Noblin decided that the risk of further surgery outweighed the potential benefits to be gained thereby. Because plaintiff continued to experience some loss of function in her hand, she went to another surgeon, who operatéd on her wrist with apparently good results; Miss Early now has almost complete restoration of function in her hand.

In her complaint charging Dr. Noblin with medical malpractice, plaintiff alleged that “Defendant failed to give her proper care and negligently treated and cared for the Plaintiff while she was his patient and she was caused to suffer permanent injury to her hand and person . . . Dr. Noblin moved the trial court for summary judgment on the basis of the parties’ depositions and on plaintiff’s answers to defendant’s interrogatories. The motion was also accompanied by the deposition of Dr. James W. Green, who had been consulted by plaintiff approximately one month after her injury. In response, plaintiff submitted the same depositions and filed a photograph of plaintiff’s hand. Plaintiff also attached a physician’s affidavit stating that Bunnell’s Surgery of the Hand was a standard and accepted medical reference book on surgery of the hand. It does not appear that the book itself was before the trial court. After considering all matters on file with the Court and the oral arguments of counsel, the Montgomery Circuit Court granted defendant’s motion for summary judgment. The trial court’s action was correct under prevailing Alabama law.

In this case, there is no evidence in the record that Dr. Noblin failed to adhere to the standard of care mandated by Alabama law; indeed, the expert testimony of Dr. Green affirmatively shows that in Miss Early’s case, defendant did exercise the same degree of care, skill and diligence as hand surgeons in the medical community ordinarily exercise in a like case. Because in his motion for summary judgment defendant effectively negated the essential allegations of plaintiff’s complaint, it was incumbent upon plaintiff in her response to “set forth specific facts showing that there [was] a genuine issue for trial.” See ARCP 56(c). This was not done, and so summary judgment in defendant’s favor was properly granted.

The trial court’s judgment must be affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON, SHORES and EM-BRY, JJ., concur.

MADDOX and JONES, JJ., dissent.

MADDOX, Justice

(dissenting):

This is a negligence case, and the law is clear that issues of negligence are ordinarily not susceptible to summary adjudication. 6 Moore’s Federal Practice ¶56.17[42], While I recognize that Dr. Green testified, by deposition, that Dr. Noblin, the defendant, had followed the appropriate community standard of care applicable to his profession, I do not accept this testimony as being uncontradicted.

Plaintiff filed, in opposition to defendant’s motion for a summary judgment, an affidavit of Dr. Haynes C. Byrne, a practicing physician licensed to practice in the State of Alabama in Montgomery County, in which Dr. Byrne stated “that Bunnell’s Surgery of the Hand is a standard and accepted medical reference book on surgery of the hand and is accepted by physicians in practice in the State of Alabama and throughout the United States.” Admittedly, the portions of the treatise which plaintiff intended to use are not in the record; therefore, we do not know which portions, if any, plaintiff brought to the attention of the trial court. I have examined photocopies of the pages from this treatise and I am convinced that at least a scintilla of evidence is presented on the issue of whether or not the treating doctor followed accepted practices and procedures. Consequently, I believe that the trial court’s grant of summary judgment was inappropriate.

The movant contends that the affidavit by Dr. Haynes C. Byrne is insufficient because it does not refer to any specific pages of the treatise which ’"ould apply to the subject case. Admittedly, the affidavit filed in opposition to the motion for summary judgment could have been more specific.

I recognize that the opposing party is under a duty to act diligently and in good faith when faced with a motion for summary judgment, but where the dereliction is technical the opposing party should not be hurried out of court. 6 Moore’s Federal Practice ¶ 56.15[6]. In Littlejohn v. Shell Oil Co., 483 F.2d 1140 (5th Cir. 1973), Judge Griffin Bell stated:

“It is true that this representation was not in affidavit form by plaintiff in person but we think that the written representation by his lawyer, an officer of the court, is in the spirit of Rule 56(f) under the circumstances. Form is not to be exalted over fair procedures.”

In short, when the opposing party’s affidavits do not measure up fully to the requirements of Rule 56(e), the Court should, nevertheless, in the exercise of a sound discretion grant a continuance or deny the motion for summary judgment where the opposing party is proceeding in good faith and his claim or defense has some merit.

A learned treatise, essay or pamphlet on a subject of science or art, which is testified to by an expert on the subject as being a standard or trustworthy authority on the subject, is admissible as an exception to the hearsay evidence rule. Alabama is in the distinct minority of states which follows this rule, but because of this, I feel that the party opposing the motion for summary judgment has presented at least a scintilla of evidence on the issue of the negligence of the defendant, and I believe that summary judgment should have been denied. I respectfully dissent.

JONES, J., concurs.  