dissenting.
I respectfully dissent from the majority opinion because the medical expert in this case could not say with the legally required degree of certainty that Dr. Naik’s alleged deviations from the standard of care were the proximate cause of Helen Robinson’s death.
In Zwiren v. Thompson, 276 Ga. 498 (578 SE2d 862) (2003), the Supreme Court held:
In order to establish proximate cause by a preponderance of the evidence in a medical malpractice action, the plaintiff must use expert testimony because the question of whether the alleged professional negligence caused the plaintiffs injury is generally one for specialized expert knowledge beyond the ken of the average layperson. . . . [I]t is the intent of our law that if the plaintiff’s medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment.
(Citations and punctuation omitted; emphasis supplied.) Id. at 500-501, citing Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608, 609 (484 SE2d 257) (1997), overruled on other grounds, Ezor v. Thompson, 241 Ga. App. 275, 279 (526 SE2d 609) (1999).
*291Decided March 30, 2010 Willis, McKenzie, DeGennaro & Alford, Nathan D. Cronic, for appellant. Greer, Klosik, Daugherty & Swank, Frank J. Klosik, Jr., Robert J. McCune, Owen, Gleaton, Egan, Jones & Sweeney, H. Andrew Owen, Jr., King & Spalding, Halli D. Cohn, for appellees.The majority holds that despite Dr. Reilly’s refusal to say that Robinson would likely have survived any intervention, his previous affidavit is sufficient to create a question of fact as to causation. See Thompson v. Ezor, 272 Ga. 849 (536 SE2d 749) (2000) (Prophecy rule does not apply to exclude the contradictory testimony of a nonparty expert witness). But Dr. Reilly’s affidavit pointedly refuses to conclude that Dr. Naik’s acts or omissions were the proximate cause of her “ultimate death,” which it instead attributes to her “previously documented cerebrovascular insufficiency.” The affidavit is entirely silent, moreover, on the subject broached for the first time at deposition: whether Robinson would have survived the hospitalization certain to follow any abdominal surgery. On this topic, Dr. Reilly’s deposition is clear: he could not say with a sufficient degree of certainty that she would have survived that hospitalization, which means that he could not render Dr. Naik’s considered refusal to intervene as the proximate cause of Robinson’s death.
As we have recently repeated, when the “conclusory statements” of a medical expert’s affidavit are contradicted in detail by his own deposition testimony, those statements are “simply not sufficient to create a genuine issue of material fact,” and summary judgment must be granted to the defendant. Beasley v. Northside Hosp., 289 Ga. App. 685, 689 (658 SE2d 233) (2008). Here, plaintiffs medical expert “could not form an opinion with sufficient certainty so as to make a medical judgment.” Id. at 690. As a result, “there is nothing on the record with which a jury [could] make a decision with sufficient certainty so as to make a legal judgment” (id.) — that is, that Dr. Naik’s alleged negligence was the proximate cause of the decedent’s death. Because a jury would have had no evidentiary basis for reaching a lawful verdict in favor of Booker, the trial court erred when it denied summary judgment to Dr. Naik. I therefore dissent.