The affidavit of plaintiff's medical expert submitted in opposition to defendant's motion for summary judgment, which merely stated that the defendant was negligent in the particulars alleged in the complaint, was insufficient under ORCP 47D. Plaintiff failed to show that there was a genuine issue of material fact for trial because her expert's affidavit was conclusory and did nothing more than rest on the allegations in the complaint. Under ORCP 47D, an affidavit must set out specific facts showing there is a genuine issue of material fact for trial. Plaintiff brought a claim against the defendant physician alleging that he did not give informed consent because the defendant failed to disclose the material risks involved in radiation therapy. Plaintiff also alleged medical negligence in other particulars. Defendant moved for summary judgment as to all claims, relying on the defendant physician's affidavit that in her opinion the treatment plaintiff received met the standard of care.
Summary judgment is appropriate where there is no genuine issue of material fact.
Where a party is required to provide the opinion of an expert to establish a genuine issue of material fact, a defendant physician's affidavit may conclusively establish that fact, and must be rebutted by a contradictory affidavit in order to avoid summary judgment on that issue. Expert testimony is generally required to establish the standard of care for medical negligence. Expert testimony may be necessary to establish the standard of care if the patient requests a further explanation of procedures or treatment. The issue of what additional information should have been given to the patient to secure her informed consent for radiation treatment was a matter requiring expert testimony. Summary judgment against plaintiff's negligence and lack of informed consent claims was proper.