MURDOCK, Justice.
Annette F. Johnson appeals from the Limestone Circuit Court's summary judgment in favor of Troy A. Layton, M.D. ("Dr. Layton"), and SportsMed Orthopaedic Specialists, P.C., d/b/a SportsMed Orthopaedic Surgery & Spine Center ("SportsMed"), in her medical-malpractice action. We affirm the judgment of the trial court.
On June 25, 2004, Johnson visited Dr. Layton, a board-certified orthopedic surgeon, at SportsMed, a medical group of which he was a member, for treatment of injuries Johnson had sustained to her left elbow, left arm, left wrist, and left hand. Dr. Layton and other personnel at SportsMed treated Johnson several times for those injuries over the next three years until her final visit on February 12, 2007.
On August 4, 2008, Johnson filed a medical-malpractice action against Dr. Layton, Dr. Saranya Nadella (another physician at SportsMed), and SportsMed, alleging that they had negligently and/or wantonly failed to properly diagnose and treat Johnson's injuries and that this failure had resulted in the loss by Johnson of the use of her left elbow, left arm, left wrist, and left hand, as well as considerable pain and suffering.
On July 21, 2009, Dr. Nadella filed a motion for a summary judgment as to all claims against her. On September 16, 2009, SportsMed moved for a partial summary judgment as to all vicarious-liability claims against it based on Dr. Nadella's acts or omissions. Johnson did not oppose those motions, and the trial court entered an order on October 30, 2009, granting both motions.
On February 9, 2010, Dr. Layton and SportsMed filed a motion for a summary judgment as to the remaining claims in the medical-malpractice action. They supported the motion with an affidavit from
(Emphasis added.) On March 9, 2010, the trial court set April 16, 2010, as the date for a hearing on the pending motion for a summary judgment.
On April 13, 2010, Johnson filed a motion to strike Dr. Layton's affidavit, contending that it did not comply with Rule 56(e), Ala. R. Civ. P., because the affidavit mentioned Johnson's medical records—a reference to the portion of the affidavit emphasized above concerning "documentation in my office chart"—but Dr. Layton failed to attach Johnson's medical chart to his affidavit. Also on April 13, 2010, Johnson filed her response in opposition to Dr. Layton and SportsMed's summary-judgment motion. Johnson's sole contention in her response was that because Dr. Layton's affidavit was due to be stricken, the "burden of proof never shifted" to Johnson; thus, she argued, she was "not required to substantively oppose" Dr. Layton and SportsMed's motion for a summary judgment.
On April 14, 2010, Dr. Layton and SportsMed filed their reply to Johnson's response. In their reply, Dr. Layton and SportsMed contended that Dr. Layton's affidavit relied upon Dr. Layton's personal knowledge of his treatment of Johnson and his professional medical opinion, not upon documents that were not attached to the affidavit. Nonetheless, Dr. Layton and SportsMed submitted with their reply over 100 pages of Johnson's medical records.
On April 15, 2010, Johnson filed what she styled a "Notice Pursuant to Rule 56(c)(2)[, Ala. R. Civ. P.,] that she does not consent to [the] hearing" scheduled for April 16, 2010, regarding the motion for a summary judgment. In this filing, Johnson contended that by filing Johnson's medical records two days before the hearing, Dr. Layton and SportsMed "failed to comply with the pertinent provisions of Rule 56(c)(2) of Ala. R. Civ. P." Johnson stated that because of this failure, she "does not consent to this Honorable Court's hearing Dr. Layton's and SportsMed's Motion For Summary Judgment at 10:00 a.m. on Friday, April 16, 2010."
Despite Johnson's filing, the trial court held the hearing as scheduled. Following the conclusion of the hearing, the trial court, on April 16, 2010, entered an order that provided that, "[h]aving considered the motion and the material offered in support thereof, the Court is of the opinion
On May 16, 2010, Johnson filed a motion to alter, amend, or vacate the trial court's summary judgment in favor of Dr. Layton and SportsMed on all of her claims. Johnson's sole contention in that postjudgment motion consisted of a reiteration of the argument she presented in her opposition to Dr. Layton and SportsMed's motion for a summary judgment.
On June 14, 2010, the trial court entered an order denying Johnson's postjudgment motion. Johnson then filed a timely appeal.
Bank of Brewton, Inc. v. International Fid. Ins. Co., 827 So.2d 747, 752 (Ala.2002).
On appeal, Johnson relies upon the same two arguments she expressed to the trial court as to why a summary judgment should not have been entered against her. First, she contends that Dr. Layton's affidavit should have been stricken because Dr. Layton failed to attach documents referred to in the affidavit. Without Dr. Layton's affidavit, Johnson insists, Dr. Layton and SportsMed failed to make a prima facie showing that no genuine issues of material fact exist, and, therefore, the burden never shifted to her to present a substantive response to their summary-judgment motion. Second, Johnson contends that the trial court committed reversible error by holding a hearing on Dr. Layton and SportsMed's motion for a summary judgment two days after they filed copies of her medical records despite the fact that she expressly stated in accordance with Rule 56(c)(2), Ala. R. Civ. P., that she did not consent to the hearing.
Rule 56(e), Ala. R. Civ. P., provides:
(Emphasis added.)
Johnson contends that in his affidavit Dr. Layton referred to "documentation in my office chart" but failed to attach a copy of Johnson's medical chart to his affidavit and that this failure was fatal to Dr. Layton's affidavit. According to Johnson, the trial court should have stricken Dr. Layton's affidavit, leaving Dr. Layton and SportsMed without evidentiary support for their motion for a summary judgment. Johnson argues that the failure to attach her medical chart to the affidavit was particularly egregious, given that she specifically alleged in her amended complaint that Dr. Layton's failure to record in her medical chart the symptoms she related to
Dr. Layton and SportsMed counter that a plain reading of Dr. Layton's affidavit shows that he did not rely upon Johnson's medical chart in expressing his opinion in his affidavit about the medical care he rendered. Instead, as the affidavit states, Dr. Layton relied upon "his personal knowledge" of the medical care he provided to Johnson and upon his "familiar[ity] with the standard of care required of board certified orthopedic surgeons treating patients similar to Annette Johnson." According to Dr. Layton and SportsMed, Dr. Layton did not attach Johnson's medical chart to his affidavit initially because the reference to "documentation in my office chart" was made only in passing, as the sentence in which it is used indicates: "Simply stated, [Johnson] did not suffer any injuries and damages for which she seeks a recovery in this litigation because of any care or treatment I provided or documentation in my office chart."
A plain reading of Dr. Layton's affidavit confirms Dr. Layton and SportsMed's contention that Dr. Layton did not focus or rely upon Johnson's medical chart in expressing his opinion that his treatment met the standard of care for orthopedic surgeons. Indeed, Johnson does not argue that Dr. Layton relied upon her medical chart for the opinion expressed in his affidavit; she argues only that he referred to her chart and that Rule 56(e), Ala. R. Civ. P., mandates that any reference to outside materials requires that a sworn or certified copy of those materials be attached to the affidavit. The pertinent question that arises from the parties' arguments on this issue, therefore, is whether Dr. Layton's reference in his affidavit to "documentation in my office chart" required the attachment of Johnson's medical chart to the affidavit in order for the affidavit to be admissible evidentiary support for Dr. Layton and SportsMed's motion for a summary judgment. An examination of our cases addressing this issue indicates that it did not.
In Welch v. Houston County Hospital Board, 502 So.2d 340 (Ala.1987), this Court noted:
502 So.2d at 343 (emphasis omitted; emphasis added). Thus, this Court on two separate occasions has endorsed the interpretation in Wright and Miller's treatise
In Ex parte Head, 572 So.2d 1276 (Ala. 1990), this Court stated, in pertinent part:
572 So.2d at 1281 (emphasis added). In Head, the affiant relied upon probate-court records for her "personal knowledge" of the relationship among the defendants, but she failed to attach the probate-court records to her affidavit, rendering the affidavit inadmissible. In contrast, Dr. Layton relied upon his personal knowledge of the treatment he provided to Johnson for his opinion as to the standard of care he rendered.
In Pettigrew v. LeRoy F. Harris, M.D., P.C., 631 So.2d 839 (Ala.1993), this Court explained:
631 So.2d at 841 (emphasis omitted). Again, in Pettigrew a doctor failed to attach to an affidavit medical records upon which the affiant expressly and solely relied for his expert opinion.
In a fact situation similar to the one in Pettigrew, this Court reached a similar conclusion. In Waites v. University of Alabama Health Services Foundation, 638 So.2d 838 (Ala.1994), this Court stated:
638 So.2d at 842 (emphasis added).
The decisions from Welch, Head, Pettigrew, and Waites demonstrate that an affiant must submit with his or her affidavit documents that he or she has relied upon in rendering the opinion expressed in the affidavit. As indicated, a plain reading of Dr. Layton's affidavit shows that his mention of "documentation in my office chart" was not a statement that he relied upon Johnson's chart for his opinion that he met the standard of care for orthopedic surgeons in providing medical treatment to Johnson. Therefore, Dr. Layton's affidavit did not violate the requirement of Rule 56(e), and the trial court did not err in declining to strike his affidavit.
In light of our decision that it was not necessary for Dr. Layton to attach to his affidavit the medical chart at issue, we pretermit discussion of Johnson's argument that Dr. Layton and SportsMed's submission of her medical records two days before the hearing on the motion for a summary judgment violated Rule 56(c)(2), Ala. R. Civ. P.
The trial court's judgment is affirmed.
AFFIRMED.
COBB, C.J., and WOODALL, BOLIN, and MAIN, JJ., concur.