Full Opinion

FOURTH DIVISION MCFADDEN, P. J., WATKINS and PADGETT, JJ. NOTICE: Motions for reconsideration must be received no later than 4:30 pm on the 10th day after the decision was issued to be deemed timely filed. https://www.gaappeals.gov/rules October 28, 2026 In the Court of Appeals of Georgia A26A1476. ORIAL v. WOODHAMS EYE CLINIC, P. C. et al. MCFADDEN, Presiding Judge. Aylin Orial appeals from the final judgment entered after a jury trial on her medical malpractice complaint, challenging the grant of a defense motion for partial summary judgment and the denial of her motion for a mistrial. As to the denial of a mistrial, Orial has failed to show an abuse of discretion, so we affirm that ruling. As to the grant of partial summary judgment, the trial court correctly denied the original motion. But Orial proffered expert testimony that the trial court effectively excluded and which might have shown the existence of genuine issues of material fact; so we vacate the denial of the motion for reconsideration and remand the case for the trial court to reconsider summary judgment in light of the proffered testimony. 1. Facts and procedural posture Orial filed a complaint against Dr. John Woodhams, Dr. Scott Lampert, Georgia Retina, P. C., and others, claiming malpractice based on various theories related to treatment of her left eye. Lampert and Georgia Retina moved for partial summary judgment on claims that Lampert, as an agent of Georgia Retina, had breached the standard of care by failing to order diagnostic visual field testing and failing to diagnose vitreous prolapse. They expressly stated in their motion that they were not seeking summary judgment on Orial’s claim that Lampert had breached the standard of care by failing to refer her to a glaucoma specialist. After a hearing, the trial court granted the motion for partial summary judgment as to the visual field testing and vitreous prolapse claims directly against Lampert and Georgia Retina. But the court further held that at trial Orial could present her claim that Lampert and Georgia Retina were negligent for their failure to refer her to a glaucoma specialist qualified to order diagnostic visual field testing and diagnose vitreous prolapse. Orial filed a motion for reconsideration of the summary judgment order, proffering that her experts would give new opinions that Lampert had breached the standard of care 2 based on untimely disclosed information by the defendants about the date on which a previously supplied photograph of the eye had been taken. The trial court denied the motion. The case proceeded to a jury trial, during which Orial moved for a mistrial because Dr. Woodhams gave testimony that contradicted his prior deposition testimony. The trial court denied the motion for mistrial. The jury subsequently returned a verdict in favor of all defendants, and the trial court entered final judgment on the defense verdict. This appeal followed. 2. Partial summary judgment Summary judgment is proper if the evidence shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56(c). A defendant may demonstrate that he is entitled to summary judgment by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Once the defendant has met this burden, the plaintiff must point to specific evidence giving rise to a triable issue or suffer summary judgment. Griffin v. Turner, 350 Ga. App. 694, 695(1) (830 SE2d 239) (2019) (citation modified). See also Cowart v. Widener, 287 Ga. 622, 623(1)(a) (697 SE2d 779) (2010). 3 In moving for summary judgment, Lampert and Georgia Retina established the absence of evidence supporting the visual field testing and vitreous prolapse claims, pointing out that neither of Orial’s own experts, Dr. Joanna Olson and Dr. Houmana Vosoghi, testified that Lampert had violated the standard of care by failing to conduct visual field testing or diagnose vitreous prolapse. They cited Olson’s deposition testimony that her “one and only criticism of Dr. Lampert” was his failure to refer Orial to a glaucoma specialist, and that he did not violate the standard of care in any other way. Olson further testified that since Georgia Retina did not have the equipment necessary to perform such testing, it was not her opinion that Lampert himself should have performed visual field testing; rather, she opined that Lampert should have referred Orial for testing. Olson offered no opinion as to Lampert’s failure to diagnose vitreous prolapse. But as pointed out by Lampert and Georgia Retina, the other expert, Dr. Vosoghi, deposed that he was unable to state that Lampert had violated the standard of care by failing to diagnose vitreous prolapse. Because Lampert and Georgia Retina met their burden of establishing the absence of evidence supporting the visual field testing and vitreous prolapse claims 4 directly against them, Orial must point to specific evidence giving rise to a triable issue on those claims. Cowart, 287 Ga. at 623(1)(a); Griffin, 350 Ga. App. at 695 (1). But she has failed to do so. Orial first cites Olson’s deposition testimony that Lampert should have referred her for visual field testing. While that testimony creates a triable issue as to the failure to refer claim, it does not create such an issue on the claim that Lampert himself should have ordered or performed such testing. As explained above, the trial court did not grant summary judgment on the claim that Lampert should have made a referral; on the contrary, the court expressly ruled that there were triable issues on the claim that Lampert failed to refer Orial to a glaucoma specialist for visual field testing. Orial also points to affidavits of Olson and Vosoghi, which were attached to the complaint and amended complaint to comply with the pleading requirement of OCGA § 9-11-9.1, as creating genuine issues of material fact on both the visual field testing and vitreous prolapse claims. Olson’s affidavit was attached to the original complaint and stated that Lampert had deviated from the standard of care by “failing to obtain diagnostic visual field testing.” But at her deposition, Olson clarified her affidavit, explaining that it was never her opinion that Lampert should have performed the 5 visual field testing; rather, her criticism all along was that he should have referred Orial for such testing. Again, as explained above, the trial court expressly ruled that such a referral claim was not subject to summary judgment and was a matter for trial. Moreover, there is a distinction “between the sufficiency of the affidavit of plaintiff’s expert for pleading purposes under OCGA § 9-11-9.1(a), and its evidentiary sufficiency to defeat a motion for summary judgment under OCGA § 9-11-56.” Williams v. Hajosy, 210 Ga. App. 637, 637-638(1) (436 SE2d 716) (1993) (emphasis in original). “In no sense is the pleading requirement of [OCGA § ] 9-11-9.1 intended to facilitate the just and efficient resolution of motions for summary judgment.” Thompson v. Ezor, 272 Ga. 849, 852(2) (536 SE2d 749) (2000). Thus, an expert affidavit which may be sufficient to satisfy the pleading standards of OCGA § 9-11-9.1 may nevertheless “be insufficient to satisfy the evidentiary standards of OCGA § 9-11-56 regarding summary judgment[.]” Graham v. Reynolds, 343 Ga. App. 274, 280(3) (807 SE2d 39) (2017) (citation modified). Those evidentiary standards include the requirement of OCGA § 9-11-56(e) that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” See also Williams, 210 Ga. App. at 639(2) (“where records relied upon 6 and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient to withstand summary judgment”) (citation modified). Here, the Olson affidavit referred to and relied on medical records, but no sworn or certified copies of any such records were attached to the affidavit, and it did not clearly identify any particular records amongst the more than 4,000 pages of documents and transcripts in the appellate record. See Scottman v. Emory Healthcare, 375 Ga. App. 727, 731-732(2) (917 SE2d 389) (2025) (the requirement of OCGA § 9-11-56(e) that sworn or certified copies of records referred to in an affidavit be attached to the affidavit “has been relaxed somewhat for the practical purpose of avoiding duplication by allowing clear identification of records already on file”) (citation modified; emphasis supplied). Under these circumstances, while Olson’s affidavit was sufficient for pleading standards under OCGA § 9-11-9.1, it was not sufficient to meet evidentiary standards on summary judgment and create a genuine issue of material fact as to the visual field testing claim. As for Vosoghi’s affidavit, which was attached to Orial’s amended complaint pursuant to OCGA § 9-11-9.1, it averred that Lampert had failed to follow the 7 standard of care required to diagnose vitreous prolapse. But like the Olson affidavit, the Vosoghi affidavit, which primarily addressed Lampert’s failure to refer Orial to a glaucoma specialist, relied on purported medical records that were not attached to it or clearly identified as showing that Lampert had breached the standard of care by failing to diagnose vitreous prolapse. While the affidavit may have satisfied the pleading requirement of OCGA § 9-11-9.1, it did not meet the evidentiary standard of OCGA § 9-11-56(e) for purposes of summary judgment on that claim. Because Orial has failed to point to probative evidence creating a genuine issue of material fact as to the failure to conduct visual field testing and failure to diagnose vitreous prolapse claims, the trial court did not err in granting partial summary judgment on those claims. 3. Reconsideration Orial argues that the trial court erred in denying her motion for reconsideration of its partial summary judgment ruling, claiming that her experts were prepared to give new opinions at trial based on the defendants’ belated disclosure of information about the date of a photograph of Lampert’s eye. In denying the motion, the court effectively excluded the expert testimony supporting Orial’s standard of care theories. 8 The trial court’s ruling was improper because it excluded opinions based on evidence that had been repeatedly requested, but which defendants did not timely disclose until five weeks before trial. Accordingly, we vacate the denial of the motion for reconsideration and remand the case with direction that the trial court reconsider the grant of partial summary judgment in light of the newly proffered expert testimony. 4. Mistrial Orial enumerates that the trial court erred in denying her motion for a mistrial based on a purported discrepancy between Dr. Woodhams’ deposition and trial testimony concerning a procedure referred to as a YAG capsulotomy. She claims that Woodhams testified without qualification in his deposition that he performed a YAG capsulotomy on Orial’s left eye on November 18, 2016, but that he then gave “radically different” testimony at trial by stating that he did not know if the YAG capsulotomy had been done on the left eye. But Orial has failed to show that Woodhams unequivocally testified at his deposition that he performed the YAG capsulotomy on Orial’s left eye on November 18, 2016. In support of this contention, she cites two pages of his deposition, neither of which includes such unequivocal testimony. The first page contains Woodhams’ 9 testimony about having previously performed the YAG procedure on Orial’s right eye, but does not included testimony that he performed such a procedure on her left eye. The second page includes Woodhams’ testimony that during an appointment on November 18th he diagnosed Orial’s left eye with a “clouded capsule” and made the “decision to do the YAG” procedure. But he did not testify that he actually performed the procedure on that, or any other, date. Thus, the premise of Orial’s claim of error that Woodhams gave “radically different” deposition and trial testimony is unfounded. Under these circumstances, to the extent there was a discrepancy as alleged between the cited deposition and trial testimony, it was not a basis for mistrial but was a matter for Orial to use as impeachment. See OCGA § 9-11-32(a)(1) (at trial, a “deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness”); Yugueros v. Robles, 300 Ga. 58, 67(1) n. 7 (793 SE2d 42) (2016) (OCGA § 9-11-32(a)(1) provides “that any deposition may be used for the purpose of impeachment”) (citation modified); Calloway v. Rossman, 150 10 Ga. App. 381, 384(3) (257 SE2d 913) (1979) (a witness may be impeached at trial by contradictory statements made in a previous deposition). The case law Orial relies on to argue otherwise is inapposite, as those cases did not involve an alleged difference between deposition and trial testimony, but involved sanctions for a party’s failure to disclose the identity of a witness or provide documents in response to written interrogatories. See Anglin v. Smith, 346 Ga. App. 456 (816 SE2d 426) (2018); Shepherd Interiors v. City of Atlanta, 263 Ga. App. 869, 870(1) (589 SE2d 640) (2003); Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376, 377(2) (274 SE2d 761) (1980). See also Resurgens, P. C. v. Elliott, 301 Ga. 589, 596-597(2) (800 SE2d 580) (2017) (“where a party has provided false or intentionally misleading responses to written discovery, including deliberately suppressing the name of a material witness, the aggrieved party may seek sanctions for the same”). Accordingly, Orial has failed to show an abuse of discretion in the denial of her motion for mistrial. See AT Sys. Southeast v. Carnes, 272 Ga. App. 671, 673(2) (2005) (“A trial court’s denial of a 11 motion for mistrial will not be disturbed absent a manifest abuse of discretion.”) (citation modified). Judgment affirmed in part, vacated in part, and remanded with direction. Watkins and Padgett, JJ., concur. 12