Servais v. Philbrick

Beasley, Judge.

Serváis sued Dr. Philbrick and Savannah Radiologists, P.A., alleging that while acting within the scope of his employment with the latter, Dr. Philbrick improperly performed an arteriogram procedure which caused permanent injuries. Serváis sought damages under the theories of medical malpractice and breach of contract in that Dr. Philbrick had expressly warranted he would not suffer any ill effects. The appeal, pursuant to OCGA § 9-11-56 (h), is from an order granting the defendants’ motion for summary judgment on the express warranty claim.

Serváis contends that the affidavits of the parties raise material issues of fact. His affidavit states that Dr. Philbrick had “expressly assured” him that the procedure would be “routine” and that there was “nothing to worry about.” He further swore that Dr. Philbrick never explained any “untoward reactions” that might be encountered or told him about any recognized complications such as he has suffered, thereby causing him to accept and rely on Dr. Philbrick’s representations in agreeing to undergo the arteriogram.

Dr. Philbrick averred that before performing the arteriogram he “believed” he explained the major untoward reactions to Serváis; that at no time did he expressly warrant the results of the treatment and *862never used any language to suggest that the procedure would be free of complications; that he did not tell Serváis that what he was going to do would be “routine” or that he would have “nothing to worry about” or that there should be no “concern” about the procedure.

This case is controlled by Taratus v. Smith, 245 Ga. 107 (263 SE2d 145) (1980). Accord McAllister v. Razook, 180 Ga. App. 585 (1) (349 SE2d 810) (1986).

The alleged statements are too vague to ascertain therefrom that “both parties to the alleged contract of express warranty ‘understood and agreed to the same thing.’ [Cit.]” Taratus v. Smith, 245 Ga. 107, 108 (263 SE2d 145) (1980). “To recover for an express warranty it is necessary to show that the statement was intended to be an express warranty and that it was relied upon as such. [Cit.] ‘(M)ere words of recommendation are not sufficient to constitute such a warranty.’ [Cit.]” Kushner v. McLarty, 165 Ga. App. 400, 403 (2) (300 SE2d 531) (1983).

Dr. Philbrick’s statements do not constitute an express warranty that the proposed medical treatment would be totally risk free. “In context the words were merely prefatory with no connotation of promise or warranty. [Cit.]” McAllister v. Razook, 180 Ga. App. 585, 586 (1) (349 SE2d 810) (1986). Hence, no enforceable contract of express warranty arose and summary judgment on this claim was correct.

Judgment affirmed.

Carley, C. J., Deen, P. J., Birdsong, Sognier and Benham, JJ., concur. McMurray, P. J., Banke, P. J., and Pope, J., dissent.