dissenting.
While on the trial of a negligence case, the burden is on the plaintiff to establish the defendant’s negligence, on motion for summary judgment, where the movant is the defendant, then he has the burden of producing proof which conclusively negates at least one essential element entitling plaintiff to a recovery under every theory fairly drawn from the pleadings and the evidence. Saunders v. Vikers, 116 Ga. App. 733 (2) (158 SE2d 324). Here, the plaintiff contracted hepatitis after an operation in which he was given blood transfusion of two pints. One pint was donor blood, that is, voluntarily donated to the defendant hospital. The other pint was so-called commercial blood, in which the donor was paid, rather than donated. That pint was furnished by a commercial blood source in Columbus.
An issue was raised as to whether the use of the commercial blood entailed greater risk than donor blood. The defendant hospital introduced proof that, in its experience and that of its doctors, commercial blood was not a significant factor in transmitting hepatitis. A doctor for the plaintiff, who was reputed to be an authority, by affidavit, stated that blood obtained from paid donor sources carries with it a significantly higher risk of contracting transfusion-related hepatitis than does blood obtained from volunteers.
"While opinion evidence adduced by the respondent is sufficient to preclude the grant of a summary judgment (see Word v. Henderson, 220 Ga. 846 (142 SE2d 244)), it does not follow that the introduction of opinion evidence by the movant will authorize the grant of a summary judgment. . .” Harrison v. Tuggle, 225 Ga. 211, 213 (167 SE2d 395).
Issues of negligence are, ordinarily, not susceptible of summary adjudication, but must be resolved on trial. Wakefield v. A.R. Winter Co., 121 Ga. App. 259 (174 SE2d 178). "[T]he jury is the arbiter of the question of whether a defendant’s conduct on a given occasion is negligent. . .” Garrett v. Royal Bros. Co., 225 Ga. 533 (170 SE2d 294).
Although the defendant introduced proof which tended to show that it was not negligent and did exercise *462care, it did not conclusively establish that the plaintiff could not recover.
Moreover, the case cited by the majority, Young v. Yarn, 136 Ga. App. 737 (222 SE2d 113), which construed Code Ann. § 88-2906 (Ga. L. 1971, pp. 438, 441) is not controlling under the present circumstances.
Assuming arguendo that the statute in question (Ga. L. 1971, p. 438 et seq.) applies to hospitals although it contains, throughout its terms the expression "by a duly licensed physician,” in the case sub judice there was no showing that the requirements of the statute were met. In Young v. Yarn, supra, there was a written and signed consent form which was, however, imperfect in not disclosing the general terms of treatment. This consent was obtained by the physician who did disclose such general terms of treatment. Here, there is not an iota of evidence that the hospital gave the plaintiff any information with regard to the blood, nor that it obtained his written consent.
Where a doctor instructs the hospital to provide blood for the patient, and the hospital takes the blood sample from the patient, provides the laboratory analysis, then selects the type of blood, either from donor or commercial blood or both, administers the blood to the patient, and bills the patient (not the doctor) the disclaimer of the hospital that it was merely providing a service to the doctor will not suffice.
The testimony of the physician was that he told the plaintiff (patient) that the plaintiff should obtain blood from the blood bank and that the plaintiff would need to replace it. Thus, construing the evidence in favor of the party opposing the motion, the blood was furnished by the hospital to the patient and not to the doctor. Hence, any relation that existed with regard to the blood was between hospital and patient, not doctor-patient.
Under the applicable statute, Code Ann. § 88-2906, if the doctor is required to "disclose in general terms the treatment or course of treatment . . . duly evidenced in writing and signed by the patient” then why should the hospital be entitled to the protection of this statute without meeting the minimal requirements contained in the statute?
*463When a hospital asserts the protection of Code Ann. § 88-2906 it must, of necessity, show its compliance with the statute. It would have to show that any medical procedure, or medical service furnished the patient, was disclosed "in general terms . . . [and] duly evidenced in writing and signed by the patient. . .” A hospital will not be permitted to insulate itself from its negligence on the grounds that the hospital patient was a patient of the doctor, and they would be violating the "doctor-patient” privilege by explaining the medical procedure or medical service provided by the hospital to the patient.
The terms of the statute are plain: where its requirements are met then a consent shall be conclusively presumed to be valid. Where, as here, none of the essential elements are shown then a summary judgment should not be granted merely to impose considerations of public policy which cannot be separated from compliance with the statute.
I would hold that it was error to grant defendant’s motion for summary judgment.
I am authorized to state that Presiding Judge Deen joins in this dissent.