In Johnson v. Layton, [Ms. 1091520, May 13, 2011] __ So. 3d __(Ala. 2011), the Alabama Supreme Court held that so long as an affiant does not rely on records referred to in his or her affidavit, those records do not need to be attached to the affidavit, as is normally required by Rule 56(e), Ala. R. Civ. P. In this case, Plaintiff sued Dr. Troy Layton, Dr. Saranya Nadella, and Sportmed Orthopaedic Specialists, P.C., alleging that they had negligently and/or wantonly failed to properly diagnose and treat Plaintiff's injuries to her left arm, elbow, wrist, and hand. Dr. Nadella was dismissed on a motion for summary judgment and did not participate in the appeal. On February 9, 2010, Dr. Layton and Sportsmed also filed a motion for summary judgment as to the claims against them. In support of that motion, Dr. Layton submitted an affidavit that opined that his treatment was within the accepted standard of care for an orthopedic surgeon and that plaintiff's injuries were unrelated to any negligent act or violation of the standard of care on his part. The affidavit also included the following statement: "Simply stated, the plaintiff did not suffer any injuries and damages for which she seeks a recovery in this litigation because of any care or treatment I provided or documentation in my office chart. None of the plaintiff's alleged injuries were caused by my care" (emphasis added). The plaintiff filed a motion to strike the affidavit, arguing that it did not comply with Rule 56(e), Ala. R. Civ. P., because it mentioned the plaintiff's medical records but failed to attach them. Thus, Plaintiff argued, because Dr. Layton's affidavit was due to be stricken, "the burden of proof never shifted" to Plaintiff and she was therefore "not required to substantively oppose" the motion for summary judgment. Defendants responded claiming that Dr. Layton's affidavit relied on his personal knowledge of the plaintiff's treatment and his professional medical opinion D not on any of the plaintiff's medical records. Nevertheless, Defendants attached over 100 pages of Plaintiff's medical records to their reply, which was filed two days before the scheduled hearing on their motion for summary judgment. The plaintiff responded that the filing of the documents two days before the hearing violated Rule 56(c)(2), Ala. R. Civ. P., and therefore informed the trial court that Plaintiff no longer consented to the hearing. The Alabama Supreme Court held that its previous decisions on the issue of whether the records must be attached to an affidavit pursuant to Rule 56(e) "demonstrate that an affiant must submit with his or her affidavit documents that he or she has relied upon in rendering the opinion expressed in the affidavit" (emphasis in original). The Court concluded that "a plain reading of Dr. Layton's affidavit shows that his mention of 'documentation in my office chart' was not a statement that he relied upon Johnson's chart for his opinion that he met the standard of care for orthopedic surgeons in providing medical treatment to [Plaintiff]." Therefore, the Court held that the affidavit did not violate Rule 56(e) and that the trial court did not err in denying the plaintiff's motion to strike. Finally, because it reached this conclusion, the Court stated that it did not have to reach the issue of whether the filing of additional records two days before the summary judgment hearing violated Rule 56(c)(2).
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