Jones v. Allen

• Decision Date: 21 November 2011
• Docket Number: No. A11A1363.,A11A1363.
• Citation: 11 FCDR 3726,720 S.E.2d 1,312 Ga.App. 762
• Parties: JONES et al. v. ALLEN et al.
• Court: Georgia Court of Appeals

11 FCDR 3726

312 Ga.App. 762

720 S.E.2d 1

JONES et al.

v.ALLEN et al.

No. A11A1363.

Court of Appeals of Georgia.

Nov. 21, 2011.

Blasingame, Burch, Garrard & Ashley, Josh Brian Wages, Athens, for appellants.

Owen, Gleaton, Egan, Jones & Sweeney, Annarita McGovern Busbee, Derrick Lee Bingham, Carlock, Copeland & Stair, Adam Lowell Appel, Kim M. Ruder, Rutherford & Christie, Vincent Aaron Toreno, Atlanta, for appellees.

MILLER, Presiding Judge.

Kenneth Jones and Clara Ramon, individually and as parents and next friends of their minor son M.J. (collectively, the “Joneses”), filed a medical malpractice action, seeking damages and a declaratory judgment related to the allegedly negligent treatment their child received as a patient at the Medical College of Georgia Children's Medical Center (“MCG”). The named defendants included M.J. Allen, D.O.; Prem Singh Shekhawat, M.D.; and Wayne Mathews, M.D. Dr. Allen moved to dismiss the complaint on the ground that she was entitled to official immunity as a state employee, and Dr. Shekhawat and Dr. Mathews filed separate motions for summary judgment on the same basis.

Following a hearing, the trial court granted Dr. Allen's motion to dismiss, and granted Dr. Shekhawat's and Dr. Mathews's motions for summary judgment, finding that they were entitled to qualified immunity. The Joneses appeal, challenging both of the foregoing rulings by the trial court. For the reasons set forth below, we affirm in part and reverse in part.

We review a trial court's order dismissing a plaintiff's complaint de novo.... A motion to dismiss asserting sovereign immunity ... is based upon the trial court's lack of subject matter jurisdiction, rather than the merits of the plaintiff's claim. See OCGA § 9–11–12(b)(1). The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver, and the trial court's pre-trial ruling on factual issues necessary to decide the OCGA § 9–11–12(b)(1) motion is reviewed on appeal under the any evidence rule.

(Citations, punctuation and footnotes omitted.) Bonner v. Peterson, 301 Ga.App. 443, 687 S.E.2d 676 (2009).

We also review the grant of summary judgment de novo, construing the facts and all inferences drawn from them in the light most favorable to the nonmoving party. See Ins. Co. of Pa. v. APAC–Southeast, 297 Ga.App. 553, 677 S.E.2d 734 (2009). Summary judgment is appropriate if the pleadings and evidence “show 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).

The record evidence shows the following. On December 28, 2003, MCG received a call from another hospital requesting a transfer of M.J. based on a life-threatening condition. Dr. Shekhawat, a faculty member at MCG and the attending neonatologist at MCG, directed a transport team to bring M.J. to the medical center. Dr. Shekhawat personally treated M.J. upon his arrival and also supervised Dr. Allen, then a second-year resident fellow, in her follow-up treatment of M.J.

While at MCG, M.J. underwent surgery. Dr. Mathews, a MCG faculty member, was contacted as the on-call anesthesiologist to assist in M.J.'s surgery. Prior to surgery, M.J. was intubated by a resident anaesthesiologist under the supervision of Dr. Mathews. Following surgery, Dr. Mathews and the resident anesthesiologist delivered M.J. to the Neonatal Intensive Care Unit (“NICU”), and the resident anesthesiologist reported to the NICU staff that M.J.'s endotracheal tube was not secure. While he was in the NICU, M.J. had to be re-intubated by medical personnel, including Dr. Allen, on two separate occasions. At one point during his recovery, M.J.'s heart rate dropped, and he needed emergency life preserving measures that were initially directed by Dr. Allen and then later by Dr. Shekhawat. Those measures were successful, and M.J.'s condition stabilized. The Joneses sued the physician defendants, alleging that their negligence in ensuring that M.J. was adequately oxygenated during intubation resulted in his permanent disability.

1. The Joneses contend that the trial court erred in finding that Dr. Shekhawat and Dr. Mathews were entitled to official immunity, because there was a genuine issue of material fact as to whether the physicians were acting within the scope of their state employment at MCG when they treated M.J. based on the factors listed in Keenan v. Plouffe, 267 Ga. 791, 482 S.E.2d 253 (1997). We agree and reverse the trial court's grant of summary judgment as to the Joneses' claims against Dr. Shekhawat and Dr. Mathews.

Except as provided in the Georgia Tort Claims Act (“GTCA”), “officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official actions.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). Under the GTCA, state employees are entitled to qualified immunity for torts committed while acting within the scope of their official duties or employment. See OCGA § 50–21–25(b).

In Keenan, the Supreme Court of Georgia ruled that an attending physician and faculty member at MCG was not acting within the scope of his state employment when he performed surgery on a “private-pay” patient—i.e., a patient whose treatment was funded by a third-party, private insurer.... [T]he court reasoned that the attending physician was not acting within the scope of his official duties because: (i) the patient was not one the attending physician was obligated to treat by virtue of his position as a faculty member at MCG, but was instead a private-pay patient who had employed the attending physician directly; (ii) the patient was billed separately for the professional services of the attending physician through an entity other than MCG; (iii) this same entity provided the attending physician with compensation, in the form of fringe benefits and professional liability insurance, that was separate from and in addition to the compensation he received in his capacity as a faculty member at MCG; (iv) the attending physician's treatment of the patient was left to his sole medical discretion; and (v) the allegations of negligence related solely to the attending physician's independent medical judgment in treating the patient.

(Citations, punctuation and footnotes omitted.) Bonner, supra, 301 Ga.App. at 450(2)(b), 687 S.E.2d 676.

Here, as the moving parties, Dr. Shekhawat and Dr. Mathews did not establish that they were entitled to qualified immunity, as the record evidence establishes that the circumstances are similar to those present in Keenan. As in Keenan, it is undisputed that M.J. was a private-pay patient. The record evidence also shows that M.J. was billed separately for the professional services of Dr. Shekhawat through an entity other than MCG—namely, Physicians Practice Group (“PPG”)—and Dr. Mathews testified that the billing for his anesthesia services ultimately went to PPG. See Keenan, supra, 267 Ga. at 792, 793(2), 482 S.E.2d 253. While PPG did not employ faculty members, it did provide fringe benefits to and purchased professional liability for its member physicians, including Dr. Shekhawat and Dr. Mathews. Id. Dr. Shekhawat and Dr. Mathews did not establish that their treatment of M.J. was controlled by the government or “call[ed] into play what might be termed governmental considerations,” as opposed to being left to their sole medical discretion. Keenan, supra, 267 Ga. at 793(2), 482 S.E.2d 253.

Dr. Shekhawat and Dr. Mathews assert that they were entitled to qualified immunity because the evidence showed that they were acting within the scope of their employment as MCG faculty based on their obligations to treat patients and to supervise and train residents and fellows in providing treatment to patients. As stated in Keenan, however, “although it could be argued that [Dr. Shekhawat and Dr. Mathews were] in the broadest sense acting within the scope of [their] employment because [they] had an obligation as ... professor[s] at [MCG] to treat patients,” they also may have had distinct obligations to M.J. that were independent of their official state duties. (Punctuation omitted.) Keenan, supra, 267 Ga. at 793(2), 482 S.E.2d 253. Similarly, to the extent Dr. Shekhawat and Dr. Mathews rely on this Court's decision in Porter v. Guill, 298 Ga.App. 782, 681 S.E.2d 230 (2009), to support their claim that they were entitled to qualified immunity, Porter is distinguishable. Unlike here, Porter did not involve a private-pay patient, and the MCG physician's medical discretion was impacted by Medicaid guidelines and regulations that “necessarily called into play considerations as to the allocation of the government's medical resources.” Porter, supra, 298 Ga.App. at 787(1)(b), 681 S.E.2d 230. Moreover, while the Joneses did not seek out either physician for treatment, “[a]t the point when [they] agree[d] to treat or operate on [M.J.] ... the relationship [became] the personal and confidential one of a doctor and patient, not the [state] and patient.” (Punctuation omitted.) Keenan, supra, 267 Ga. at 794(2), 482 S.E.2d 253. Notwithstanding Dr. Shekhawat's and Dr. Mathews's official duties as MCG faculty members, when they acted as physicians, their primary duty was to M.J., rather than to the state. See, e.g., Howard v. City of Columbus, 239 Ga.App. 399, 415(4), 521 S.E.2d 51 (1999) (holding that a jail medical director was not entitled to qualified immunity when he treated a patient as a physician); Jackson v. Miller, 176 Ga.App. 220, 221(1), 335 S.E.2d 438 (1985) (holding that a physician was not entitled to qualified immunity simply by virtue of his employment by a public clinic, because his primary duty as a physician was to his patient, rather than to the state or the city). Based on the foregoing, as the parties moving for summary judgment...