concurring specially.
Although I agree with the majority opinion, because the outcome is mandated by Thompson v. Ezor,2 I write separately to urge our Supreme Court to reconsider the rule set out in that case. In addition, I believe that we should address Richmond County Hosp. Auth. v. Dickerson,3 as the trial court relied upon it in denying Naik’s motion for summary judgment.
1. Significantly, the OCGA § 9-11-9.1 affidavit in this case was given by one expert, Dr. Jimmy D. Pruitt, who addressed negligence only, while a different expert, Dr. James E Reilly, submitted an affidavit in opposition to Naik’s motion for summary judgment that addressed both negligence and causation. Both parties relied on Reilly’s affidavit when arguing the motion for summary judgment.
Reilly swore in his affidavit that “[i]f Mrs. Robinson’s hemorrhage had been identified and stopped sooner by Dr. Naik with surgical intervention, she would have had less cerebral anoxia and within a reasonable degree of medical probability would have survived.” Later, in his deposition, Reilly significantly backed away from his statement that the patient probably would have survived and instead swore that she only had a fifty-fifty chance of survival.
As noted in the majority opinion, the “conflict” between the expert’s deposition testimony and his affidavit creates a question of fact for the jury to resolve. I concur because this outcome is mandated by the decision of our Supreme Court in Thompson,4 As explained by Justice Sears, “[t]he fact that an expert witness’s testimony is contradictory has never rendered that testimony inadmissible. . . . [S]uch contradictions . . . are to be assessed by the jury.”5
I respectfully urge our Supreme Court to overrule Thompson. Justice Sears, writing for a unanimous court, was in error when she stated that “the party should not be held responsible under Prophecy when . . . contradictions inevitably arise in the testimony of expert *288witnesses.”6 Experts can and do contradict each other, but a single expert should not contradict himself under oath. If a party is harmed by the contradiction, so be it. After all, the party, or his lawyer, hired this particular expert.7
The rule should be that in all cases alleging professional malpractice, the latest testimony of an expert under oath subject to cross-examination should control the outcome of a motion for summary judgment. Affidavits, to the extent that they contradict the expert’s deposition testimony, should be disregarded. Under this rule the trial judge in Thompson would have been affirmed. In Ezor v. Thompson, the physician whose affidavit was attached to the complaint later contradicted the affidavit in his deposition testimony.8 The expert submitted a second affidavit to explain the contradiction. The trial court correctly disregarded the expert’s first and second affidavits because they had not been subject to cross-examination.9
As everybody but the Sherpas knows, most affidavits are drafted by the lawyer, typed by the lawyer’s secretary, and then sent to the witness for signature. At some later time a notary’s signature and stamp are added. To equate an affidavit with testimony given subject to cross-examination, and to redirect, is wrong. An affidavit is evidence, but to call it testimony stretches a point. Justice Lumpkin acknowledged this early in Georgia’s jurisprudence when he wrote: “Indeed every one who has presided as a judge . . . will doubtless recognize the fact that not infrequently the truth can be reached by a few pertinent questions, though it may be beclouded and obscured in pages of carefully prepared affidavits.”10 More recently, United States Supreme Court Justice Antonin Scalia, writing for an almost unanimous Court in Crawford v. Washington,11 quoted with approval a “prominent Antifederalist” who wrote that “[ njothing can be more essential than the cross-examining of witnesses. . . . Written evidence is almost useless; it must be frequently taken ex parte, and but very seldom leads to the proper discovery of truth.”12
*289Let us imagine an extreme case. An expert in a lawsuit against a professional, for example a pharmacist, lawyer, or architect, signs an affidavit clearly establishing a defendant’s liability for malpractice. At a later deposition the expert testifies that, “I was smoking marijuana when I signed that affidavit. It’s all lies, total lies.” Under the Thompson rule, the defendant could not obtain summary judgment. The parties would be put to the expense of a trial where the jury would be obligated to assess the contradictions.
The Supreme Court of Georgia, and the majority in the Court of Appeals, were too optimistic when they reasoned that contradictions in the testimony would be resolved by a jury. In the regular presentation of evidence at a trial, an affidavit would not be admissible in a plaintiffs case in chief because it was not subject to cross-examination. If the expert has contradicted his affidavit on deposition, and sticks to his deposition testimony on the stand at trial, the plaintiffs attorney can impeach his own witness with his prior inconsistent statement in the affidavit. The prior inconsistent statement would then be admitted as substantive evidence. But if the expert is unavailable for trial, then only the deposition would be admissible. A directed verdict for the defendant would be inevitable. The parties would have been subjected unnecessarily to the expense and trouble of a trial.
A plaintiff who has a strong case and a competent expert will have no difficulty complying with my proposed rule. But a plaintiff with a weak case and a wavering expert will lose at summary judgment.
In the case now on appeal the judgment below should be reversed. But I must obey controlling precedent and therefore I concur specially.
2. Because the trial court relied solely on Dickerson13 in denying Naik’s motion for summary judgment, we should address that decision. The Dickerson opinion states that “[pjroximate cause is not eliminated by merely establishing by expert opinion that the patient had less than a fifty percent chance of survival had the negligence not occurred.”14 This precedent is directly on point with the case at bar.15 The case appears to have been overruled by implication, however.
In Dickerson, the panel inferred from the attending physician’s affidavit that death was not inevitable.16 It then ruled that the record *290did not establish that the “actions or inactions of the hospital staff were not a proximate or contributing cause of Mrs. Dickerson’s death,” so that “the movant hospital did not. . . carry its burden of proof on summary judgment.”17 Dickerson was decided several years before the Supreme Court’s landmark decision in Lau’s Corp. v. Haskins.18 Lau’s Corp. reallocated the burden of proof on summary judgment to require the nonmoving party to “point to specific evidence giving rise to a triable issue,”19 once the movant has demonstrated an absence of evidence to support the nonmoving party’s case. The outcome of Dickerson would be different today, and the statement regarding “proximate” cause does not comport with case law after Lau’s Corp. I would urge my colleagues to recognize that Dickerson has been overruled by implication.
I am authorized to state that Presiding Judge Blackburn joins in this special concurrence.
272 Ga. 849 (536 SE2d 749) (2000).
182 Ga. App. 601 (356 SE2d 548) (1987).
Supra.
(Footnote omitted.) Id. at 853 (2).
Id., citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).
One of the reasons advanced in Thompson for not applying the Prophecy rule to experts is disturbing. Justice Sears writes that a party “is without power to prevent his or her witnesses from contradicting themselves” and therefore should not be penalized. Thompson, supra. Why should we be solicitous of a party who is unable to make his witness lie on deposition? Parties should not be able to control the testimony of their witnesses, expert or otherwise. An expert witness who makes a mistake in his affidavit should be able to correct it in his deposition. Witnesses should speak the truth, and the truth should prevail.
Ezor v. Thompson, 241 Ga. App. 275, 276 (526 SE2d 609) (1999), aff'd, Thompson, supra.
. Id.
Chattanooga &c. R. Co. v. Morrison, 140 Ga. 769, 773 (3) (79 SE 903) (1913).
541 U. S. 36 (124 SC 1354, 158 LE2d 177) (2004).
Id. at 49 (II) (B), citing R. Lee, Letter IV by the Federal Farmer (Oct. 15, 1787), reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 469, 473 (1971).
Supra.
Id. at 602 (1) (b).
The Dickerson court was probably using the phrase “proximate cause” as a synonym for cause-in-fact.
Dickerson, supra.
(Citations omitted.) Id. at 603 (1) (b).
261 Ga. 491 (405 SE2d 474) (1991).
Id.