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.
(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
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).
(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,
2. The Joneses also contend that the trial court erred by extending the holdings in Bonner and Nelson v. Bd. of Regents, etc., 307 Ga.App. 220 704 S.E.2d 868 (2010) to conclude that Dr. Allen was entitled to qualified immunity. The Joneses argue that the holding of these cases—that MCG resident physicians are entitled to qualified immunity—should not be extended to Dr. Allen, who was a fellow, rather than a resident, at the relevant time. We disagree.
Significantly, in Bonner,
Bonner, supra, 301 Ga.App. at 451(2)(b), 687 S.E.2d 676; Nelson v. Board of Regents of University System of Georgia, 307 Ga.App. 220, 230(3), 704 S.E.2d 868 (2010) (quoting same); see also Gargiulo v. Ohar, 239 Va. 209, 211, 215(V), 387 S.E.2d 787 (1990) (holding that a licensed, board-certified physician employed as a fellow in a state-run research program was entitled to official immunity from liability arising out of treatment she provided to patients during the course of her fellowship, because, like here, she received no compensation from patients, was not allowed to choose or refuse patients, and was
Here, the record evidence showed that, during the relevant time, Dr. Allen was employed by MCG as a second-year fellow in MCG's Graduate Medical Education Program, and was training under the general supervision of attending physicians. As a fellow, she had already completed her three-year residency program, and her duties included assisting physicians who treated patients at the MCG hospital. She was not afforded hospital privileges, and she was only able to work under the supervision of attending physicians who had such privileges. She was not permitted to choose which patients to treat, and patients could not choose to be treated by her. In fact, Dr. Allen did not have a direct "doctor-patient" relationship with any patients treated at MCG. Nor did she have a private-pay relationship with M.J. or any other patient, and her pay was limited to a fixed stipend set by the number of years she completed in her fellowship, not the number of patients she treated or procedures she performed.
Based on the foregoing, we conclude that Bonner and Nelson apply, because the circumstances presented in those cases are substantially similar to those involved in this case. See Bonner, supra, 301 Ga.App. at 451(2)(b), 687 S.E.2d 676; Nelson, supra, 307 Ga.App. at 230(3), 704 S.E.2d 868. To the extent the Joneses argue that we should treat a fellow more like an attending physician and less like a resident, we are not persuaded. First, while the Joneses assert that Dr. Allen was unlike a resident because she was a licensed physician, we have previously noted that resident physicians are "at least provisionally licensed to practice medicine." (Citation omitted.) Bonner, supra, 301 Ga.App. at 449(2)(a), 687 S.E.2d 676; see also Nelson, supra, 307 Ga.App. at 229(3), n. 37, 704 S.E.2d 868. Second, the Joneses' assertion that Dr. Allen exercised "unilateral" decision-making authority when she intubated M.J. and performed other procedures outside of the attending physician's presence is without merit. The evidence established that, as a fellow, Dr. Allen was operating under the general supervision of an attending physician. See Bonner, supra, 301 Ga.App. at 444, 687 S.E.2d 676.
There is also no merit to the claim that Dr. Allen was not a state employee. MCG developed a formal employment contract with Dr. Allen, approved her leave requests, and controlled her work rotations. Additionally, Dr. Allen was paid by MCG. The Joneses nevertheless argue that "every aspect of Dr. Allen's pay, benefits, and work-related expenses were funded 100% by . . . MCGHI."
Contrary to the Joneses' suggestion, MCG's decision to enter into a lease agreement with MCGHI did not somehow operate to waive immunity for Dr. Allen in light of
Finally, we have previously rejected the argument made here that Dr. Allen should not be granted official immunity because she was covered by liability insurance. See Nelson, supra, 307 Ga.App. at 231(3), 704 S.E.2d 868.
(Footnotes omitted.) Id. Accordingly, Dr. Allen was entitled to official immunity, and we affirm the trial court's decision to grant her motion to dismiss on this basis.
Judgment affirmed in part and reversed in part.
ELLINGTON and DOYLE, JJ., concur.