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499 So. 2d 1377

McCall v. Gandy

Supreme Court of Alabama

Decided September 19, 1986

Supreme Court of Alabama · decided 1986-09-19

Relies on Allen v. Mobile Infirmary · Parker v. King

Decided 1986-09-19

MADDOX, Justice.

¶1This is an appeal from a summary judgment in favor of one defendant, Dr. Roy Gandy. That summary judgment was *1378made final pursuant to Rule 54(b), Ala.R. Civ.P.

¶2The case arose when the plaintiff's decedent, Charlie Andrews, died of brain damage due to oxygen deprivation during surgery. The plaintiff alleges that his condition was caused by the improper insertion of an endotracheal airway into the decedent’s esophagus.

¶3The trial court granted Dr. Gandy’s second motion for summary judgment. Dr. Gandy based that motion on an alleged inadequacy of the testimony of the plaintiff's medical expert, saying:

“The deposition testimony of the witnesses in this case, particularly witness Doug Hawke, defendant, is to the effect that the endotracheal tube was not in the esophagus of this patient, but said tube was in the trachea of the patient where it was suppose[d] to be. Consequently, any opinion by plaintiff’s experts that the tube remained in the patient’s esophagus is without support in fact and consequently insufficient to defeat a properly presented motion for summary judgment.”

¶4Applying principles of law governing summary judgment, we must reverse. Summary judgment is rarely proper in negligence cases. Allen v. Mobile Infirmary, 413 So.2d 1051 (Ala.1982); Parker v. King, 402 So.2d 877 (Ala.1982). Contrary to Dr. Gandy’s argument, the plaintiff has indeed produced a scintilla of evidence. Dr. Gandy’s motion goes to the weight of the opposing evidence and the persuasiveness of the testimony of the various witnesses.

¶5Our review today is limited to the issue raised — the propriety of summary judgment. Summary judgment is not proper if there is a genuine issue of material fact. Rule 56(c), Ala.R.Civ.P.

¶6In his brief, Dr. Gandy attempts to raise several issues not raised in his summary judgment motion in the trial court; we decline to. address them, because those issues are not properly before us.

¶7The judgment of the trial court is due to be reversed and the cause remanded.

¶8REVERSED AND REMANDED.

TORBERT, C.J., and ALMON, BEATTY and HOUSTON, JJ., concur.
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