(concurring in part and dissenting in part).
Having participated in the development of much of what is said ⅛ the majority opinion it having been taken with my approval from my proposed opinion reaching a contrary result on the issue of the correctness of the summary judgment, I concur with the majority opinion except in its conclusion to reverse the summary judgment of dismissal, the reasoning supporting that conclusion, and the parts of the syllabus sustaining it.
I would affirm the summary judgment.
*898Assuming for the sake of argument only that Dr. Riisager’s first affidavit establishes that Mrs. Sagmiller has expert medical testimony tending to prove that Dr. Carl-sen’s performance in his treatment of Mrs. Sagmiller did not meet the standard of care practiced by physicians in his specialty in that locality, it fails to prove that Dr. Carlsen’s treatment of Mrs. Sagmiller was the proximate cause of her difficulties.
Since Mrs. Sagmiller cannot prevail unless she can prove that Dr. Carlsen’s alleged failure to perform according to the standard of care practiced in his specialty in the community was the proximate cause of her injury (the fistula and the resulting difficulties); and proof of proximate cause in a medical malpractice case such as the instant case must, because of the complexity of the matter, depend upon expert medical evidence (unless the facts justify the application of the doctrine of res ipsa loquitur), the failure on the part of Mrs. Sagmiller to produce expert medical evidence linking the alleged negligence of the doctor with the injury warranted the summary judgment of dismissal of the complaint.
In Shoberg v. Kelly, 1 Wash.App. 673, 463 P.2d 280 (1969), rehearing den. 1970, a summary judgment was granted on physician’s motion in a malpractice action which also involved a vesicovaginal fistula, where plaintiffs failed to comply with Washington Civil Rule 56(e) and failed to make a showing that they had or would have medical expert testimony to prove the applicable standard of care and its violation by defendant physician. The only evidence submitted in tfkoberg in opposition to the motion for summary judgment was an affidavit of plaintiff’s attorney containing hearsay statements as to the doctor’s alleged negligence, which tended to refute the affidavit submitted by the defendant doctor. It contained no evidence admissible for the purpose of establishing the truth of the facts stated, nor did it show the plaintiffs had expert testimony to support their claim. The court found the attorney’s affidavit insufficient.
“Such hearsay was inadmissible for the purpose of establishing the truth of the facts stated. [Citations omitted.] Furthermore, plaintiffs were under the necessity of showing at the minimum through a medical expert, or otherwise, that they had or would have medical expert testimony to prove the applicable standard of care and its violation. Without such expert medical testimony plaintiffs could not prove negligence and could not recover.” Shoberg v. Kelly, supra, 463 P.2d 280 at 282.
In Abernethy v. Smith, 17 Ariz.App. 363, 498 P.2d 175 (1972), rehearing den., review den., 1972, the Arizona Court of Appeals considered whether the trial court erred in granting summary judgment on the ground that the plaintiffs presented no evidence to support the allegations of malpractice. In Abernethy, the record did not show that the plaintiffs had any expert medical evidence to support their claim of malpractice. The court said that merely offering a list of medical experts the plaintiffs hoped would testify was insufficient.
Abernethy does not reach the problem which confronts us in the instant case, but it relied upon an Arizona case, although not a medical malpractice case, which I believe aids in deciding this case. It establishes the rule that in resisting a motion for summary judgment, one must come forward with facts sufficient to support the claim for relief.
“Where the motion for summary judgment filed by a defendant points out an absence of facts sufficient to establish a claim for relief, the plaintiff may not rest upon the allegations of the complaint but must come forward with facts which meet the test of the rules sufficient to support that claim for relief.” Patton v. Paradise Hills Shopping Center, Inc., 4 Ariz.App. 11, 417 P.2d 382 at 385 (1966).
*899In the instant case, Mrs. Sagmiller did not come forward with medical evidence to establish that Dr. Carlsen’s alleged negligence was the proximate cause of the fistula, and without that evidence she had no support for her claim for relief.
A case in point is Siverson v. Weber, supra, 22 Cal.Rptr. 337, 372 P.2d 97 (1962), a California case which was discussed in the majority opinion in relation to the applicability of the doctrine of res ipsa loquitiw to the instant case. While Siverson does not involve a motion for summary judgment, it recognizes the necessity of proving proximate causation by means of expert medical testimony in cases where the doctrine of res ipsa loquitur is inapplicable. After summarizing the medical testimony which involved various explanations for the occurrences of fistulas the court said:
“There is nothing to indicate that if the fistula was caused by any of the factors listed above or any combination of them the injury sustained by plaintiff was a result of negligence.
“It is obvious that neither the cause of plaintiff’s fistula nor the question whether, in the light of past experience, it was probably the result of negligence by defendants is a matter of common knowledge among laymen. * * *, No medical witness testified that in the rare cases where fistulas occur they are more probably than not the result of negligence. * * *” Siverson v. Weber, supra, 22 Cal.Rptr. 337 at 339, 372 P.2d 97 at 99.
In Tessitore v. McGilvra, 105 Ariz. 91, 459 P.2d 716 (1969), rehearing den. 1969, the Arizona Supreme Court had before it an appeal from a summary judgment in favor of the defendants below, just as in the instant case. The court took the legal position, just as I do in the instant case, that for a plaintiff to establish negligence on the part of a physician or surgeon expert medical testimony must be presented to show the standard of skill of average physicians in that field in the community or similar localities, that the defendant doctor failed to exercise this degree of skill and that this breach of duty was the legal cause of plaintiff’s injuries. In that case the court found the medical facts to be sufficient to create a material issue of fact and, accordingly, set aside the summary judgment. There being little medical evidence submitted on the issue of negligence and no medical evidence on the issue of proximate cause in the instant case, the different results are justified.
In a 1966 opinion of the Supreme Court of Florida, in which that court set aside a summary judgment in favor of the defendants in a malpractice action because the movants failed to conclusively show that genuine issues of material facts did not exist, that court in its opinion on petition for rehearing held that the burden of so showing could conceivably be met by showing conclusively that the negligence charged, or any committed by the physician or surgeon, was not causally related to the plaintiff’s injury. Holl v. Talcott, Fla., 191 So.2d 40 at 47 (1966).
Under these circumstances, I conclude that the trial court correctly granted the motion for summary judgment of dismissal of the plaintiff’s complaint.
PAULSON, J., concurs.