author: MILLER, Presiding Judge.

text:
    A11A0916.
    WERTZ v. ALLEN.
    (721 SE2d 122)
   MILLER, Presiding Judge.

Appellant Erik Van Wertz filed an action against Appellee Lashonda Bonner Allen, alleging fraud and defamation. Allen moved for summary judgment. Finding that no genuine issues of material fact existed, the trial court granted Allen’s motion for summary judgment. Wertz appeals the trial court’s summary judgment ruling, arguing that Allen’s defamatory statements were not protected by an absolute or conditional privilege, and that Wertz otherwise established each element of a claim for defamation. Wertz further contends that he alleged sufficient facts to support a claim of fraud. For the reasons that follow, we affirm.

A defendant can prevail on a motion for summary judgment “by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case.” (Punctuation and footnote omitted.) Community Newspaper Holdings v. King, 299 Ga. App. 267, 268 (682 SE2d 346) (2009). “On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citations omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence shows that Wertz was enrolled in the respiratory therapy program at Macon State College (“MSC”) in 2006. As part of the respiratory therapy program, Wertz was required to complete a one-semester clinical externship that involved working 36 12-hour shifts at one of the hospitals with which MSC had a contract. Wertz was assigned to the Medical Center of Central Georgia (the “Georgia Medical Center”) for his externship in 2006. During each of his shifts at the Georgia Medical Center, Wertz worked alongside an assigned “preceptor,” who served as his mentor.

On March 30, 2006, Wertz was scheduled to work a 12-hour shift, and Allen, a respiratory therapist at the Georgia Medical Center, was assigned as his preceptor. Wertz had also scheduled an interview — regarding prospective future employment at the Coliseum Medical Center (“Coliseum”) — during his March 30, 2006, shift at the Georgia Medical Center. Wertz told the MSC respiratory therapy program director about the interview, who in turn advised Wertz to notify his preceptor both when he left for the interview, as well as upon his return to the Georgia Medical Center after the interview. Wertz claims that on March 30, 2006, he told Allen that he was going to Coliseum for an interview, and that Allen told him “yeah, that’s fine, as long as you told [the MSC respiratory therapy program director] where you’re going.” Allen denied these allegations. Wertz subsequently went to the Coliseum interview during his lunch break, but failed to electronically clock-out before leaving the Georgia Medical Center, as he was required to do under MSC’s externship policies. The record reflected that Wertz clocked-in at 6:23 a.m. and clocked-out at 6:21 p.m., for a total of 11.967 hours at the Georgia Medical Center on March 30, 2006.

While at Coliseum for his interview, Wertz was incidentally seen by one of his MSC professors. Shortly thereafter, the professor went home and accessed the MSC externship electronic timekeeping system; despite his absence from the Georgia Medical Center, the system indicated that Wertz was nevertheless clocked-in for his 12-hour shift. The professor contacted the Georgia Medical Center department educator to ask if she could identify the preceptor to whom Wertz was currently assigned and find out what Wertz was doing at Coliseum during his shift. Allen told the Georgia Medical Center department educator that Wertz had been with her all day, and that she was not aware Wertz had left for an interview; the Georgia Medical Center relayed this information to the MSC professor.

Several days later, while at the MSC campus, Wertz and the professor got into a confrontation regarding the incident. According to the MSC professor and a witness, Wertz proceeded to engage in a loud and aggressive argument with the professor. Although Wertz denied that he was the aggressor, the confrontation resulted in Wertz being charged with two violations of the MSC student code of conduct for harassing and intimidating behavior toward the MSC professor. Wertz was notified that given the nature of the allegations, as well as the previous disciplinary warning on his record, the charges were being forwarded to the MSC student disciplinary committee for adjudication and that a disciplinary hearing would be held. Before the hearing, Wertz typed a letter for Allen to sign, which read as follows:

To Whom It May Concern:
This letter is to verify that Erik Wertz worked with me on the day in question. Erik did not take a breakfast or lunch break during his 12 hour shift. Erik told me that he had prior approval from [the MSC respiratory therapy program director] to attend a job interview at the Coliseum. Erik did return promptly from his interview and finished out his shift. Erik was allowed to go to the library once to look up some information for school. Other than that he was by my side the entire shift. Erik is a hard worker and pleasant to work with. He will make a good respiratory therapist.
Thank You, [Allen]

Wertz claims that he showed this letter to Allen, who read it, made a copy of the unsigned letter for herself, signed Wertz’s copy of the letter, and returned the signed letter to Wertz. Allen, however, stated that she refused Wertz’s requests to write or otherwise sign a letter on his behalf. Allen testified that it was not her signature at the bottom of Wertz’s letter.

Wertz further claims that on the morning of his disciplinary hearing, April 18, 2006, Allen called him to ask him whether he needed her to attend the hearing with him. Wertz testified that he told Allen she did not need to go because he had her signed letter. Allen testified that Wertz called her on a daily basis up until the date of his disciplinary hearing, but that the substance of those conversations consisted only of Wertz asking her to sign the letter and Allen declining to do so.

Wertz nevertheless presented a signed version of the letter at his disciplinary hearing. The MSC student discipline committee found Wertz responsible for having violated the MSC student code of conduct as charged, and Wertz was placed on disciplinary probation.

On April 20, 2006, several MSC faculty, including the dean of students and the respiratory therapy program director, met with Georgia Medical Center personnel, including Allen, the hospital’s respiratory therapy supervisor, and the hospital’s director of respiratory care services, (the “April 20th meeting”). At this meeting, Allen told the MSC dean that she had not signed the letter that Wertz submitted at his disciplinary hearing. Wertz consequently received a letter from the MSC dean charging him with additional MSC student code of conduct violations for submitting a fraudulent document, that was neither written nor signed by Allen, at his disciplinary hearing. The letter notified Wertz that he was being placed on interim suspension from MSC effective immediately, that he was no longer eligible to participate as an extern at the Georgia Medical Center, and that he was scheduled for an expulsion hearing at which Georgia Medical Center personnel, including Allen, would testify. At the expulsion hearing, Allen testified that she did not sign the letter. Wertz was found to have again violated the student code of conduct and was expelled from MSC, receiving the letter grade of “F” in each of his spring semester 2006 classes. Wertz appealed the decisions from both his disciplinary and expulsion hearings through the MSC appeals process and the Board of Regents of the University System of Georgia, but his expulsion was upheld. Wertz subsequently attempted to seek damages by filing a pro se complaint against Allen for defamation, fraud, and intentional infliction of emotional distress. Wertz claimed that he suffered special damages as a result of Allen’s statements because he was expelled from MSC and his expulsion foreclosed any chance of him completing his degree or otherwise becoming employed by Coliseum as a respiratory therapist.

1. In his first enumeration of error, Wertz claims that the trial erred in granting Allen’s motion for summary judgment as to Wertz’s defamation claim. Generally, there are four elements in a cause of action for defamation: “(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.” (Citation and punctuation omitted.) Eason v. Marine Terminals Corp., 309 Ga. App. 669, 672 (1) (b) (710 SE2d 867) (2011). Wertz complains that Allen’s statements that she did not sign Wertz’s letter, made at the April 20th meeting and the MSC expulsion hearing, amounted to defamation. In Allen’s motion for summary judgment, she argued that any defamatory statements she might have made were protected by a privilege; or in the alternative, Wertz could not establish the elements of defamation insofar as Allen made no defamatory statements, and even if she did, there was no publication. Even assuming without deciding that Wertz established the other three elements of defamation, we agree that Allen’s statements were privileged. There was thus no error in granting summary judgment as to Wertz’s defamation claim.

Georgia law recognizes two different kinds of privileged communications, absolute and conditional. Saye v. Deloitte & Touche, LLP, 295 Ga. App. 128, 130 (1) (a) (670 SE2d 818) (2009) (citing OCGA §§ 51-5-7, 51-5-8). “[Communications which are afforded an absolute privilege cannot form the basis of a defamation action, regardless of the falsity of the statements or the speaker’s malicious intent; conditionally privileged statements, on the other hand, are actionable upon a showing of malice.” (Citations omitted.) Id. at 131 (1).

Here, Allen’s alleged defamatory statements were made at a meeting between faculty members of a college and personnel of a hospital involved with the college’s student externship program — i.e., the April 20th meeting — as well as at a student disciplinary proceeding conducted by the college and pursuant to the college’s student code of conduct — i.e., Wertz’s expulsion hearing. These statements fall within the ambit of conditionally privileged communications. OCGA § 51-5-7 affords a conditional privilege to statements made in good faith in the performance of a moral private duty, as well as statements made with a good faith intent on the part of the speaker to protect her interest in a matter in which it is concerned. See OCGA § 51-5-7 (2), (3). To make this defense of conditional privilege complete, however, “good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear.” (Citation and punctuation omitted.) Dominy v. Shumpert, 235 Ga. App. 500, 504-505 (2) (510 SE2d 81) (1998). Allen made such a showing with regard to her statements denying that she signed Wertz’s letter. See Meyer v. Ledford, 170 Ga. App. 245, 247 (D (316 SE2d 804) (1984) (holding that defendant established the applicability of conditional privilege under OCGA § 51-5-7, and was therefore entitled to summary judgment, where the defamatory statement was given at the request of speaker’s superior officer in the course of an official investigation concerning improper conduct by a fire department official). In the course of the investigation concerning improper conduct by Wertz, Allen, as well as her supervisor and the Georgia Medical Center director of respiratory care services, attended the April 20th meeting, where the MSC dean of students specifically asked Allen whether she had signed the letter submitted by Wertz at his disciplinary hearing. In the course of that same investigation, Allen was subsequently requested to appear at Wertz’s expulsion hearing, where she made the statement only at the specific request of the MSC disciplinary committee hearing officer.

“The effect of [a conditional] privilege is to require the plaintiff to prove actual malice.” (Citation and punctuation omitted.) Dominy, supra, 235 Ga. App. at 505 (3). “Consequently, the determination of whether [Allen’s] statements were privileged, and thus immune from liability, turns on the issue of malice.” Saye, supra, 295 Ga. App. at 132 (1) (a) (citing OCGA § 51-5-9). Wertz made only conclusory allegations that Allen’s “statements about her signature were not made in good faith because she knew them to be false at the time she made them.” He proffered no additional evidence, however, showing actual or express malice. See Saye, supra, 295 Ga. App. at 133 (1) (a) (“[T]he burden is ultimately on [the plaintiff] to furnish proof of malice, and conclusory allegations of conspiracy, malice, and defamation are insufficient — in the absence of substantiating fact or circumstances — to raise a material issue for trial.”) (citation and punctuation omitted).

As described above, Allen’s testimony is that she made the statements only in response to direct questions asked by MSC faculty in the course of the college’s disciplinary investigation concerning Wertz. Allen also testified that she never had any problems with, bad feelings toward, or biases against Wertz. Wertz testified at his deposition that Allen was “[n]ot at all” biased against him, and that he had no problems with Allen. When subsequently asked why, if Allen had in fact signed the letter, she would have subsequently made statements denying the same, Wertz testified, “The only thing I can think of is she was steered by her superiors. I don’t know. I’m not [Allen].” “This evidence, when coupled with the showing of [conditional] privilege eliminated any genuine issue of material fact in this regard and placed the burden on plaintiff to come forward with a showing of express malice.” (Citation and punctuation omitted.) Dominy, supra, 235 Ga. App. at 505 (3). As the record in this case fails to rebut the existence of a conditional privilege with evidence of actual or express malice, summary judgment against him was proper as to his defamation claim.

2. In Wertz’s second enumeration of error, he claims that the trial court erred in granting summary judgment as to his fraud claim. “To survive a motion for summary judgment on a fraud count, some evidence must support each of the five elements, which are: a false representation by a defendant; scienter; intention to induce the plaintiff to act or refrain from acting; justifiable reliance by plaintiff; and damage to the plaintiff.” (Citation omitted.) Harris v. Distinctive Builders, Inc., 249 Ga. App. 686, 690 (2) (549 SE2d 496) (2001). “Because summary judgment is appropriate if only one essential element of [Wertz’s] claim is eliminated, we need not address all the issues raised on appeal or in the motion for summary judgment to resolve this [enumeration of error].” (Citation and punctuation omitted.) Johnson v. Rodier, 242 Ga. App. 496, 498 (2) (529 SE2d 442) (2000).

Decided November 16, 2011

Reconsideration denied December 5, 2011.

Donald W. Johnson, for appellant.

Sell & Melton, John A. Draughon, Julia H. Magda, for appellee.

Wertz’s fraud claim was based upon his conclusory allegation that because Allen had signed the letter, her phone call to Wertz on the morning of his disciplinary hearing was a false representation. Wertz alleged that by calling to ask whether Wertz needed her to attend the disciplinary hearing, Allen “implied to [Wertz] that she would support him and that she stood by the statements in the letter she had signed.” In her motion for summary judgment, Allen argued that there was a lack of evidence establishing the requisite elements of Wertz’s fraud claim, specifically including a false representation made to Wertz. Once Allen pointed to the absence of evidence to support this element of Wertz’s fraud claim, Wertz “had to come forward with specific evidence giving rise to a triable issue.” (Punctuation and footnote omitted.) Roberts v. Nessim, 297 Ga. App. 278, 284 (1) (b) (676 SE2d 734) (2009). In his summary judgment response, however, Wertz failed to direct the trial court to any evidence supporting the false representation element of his fraud claim, and he also fails to do so on appeal. See id. Even when viewed in the light most favorable to Wertz, the evidence he identifies on appeal shows only that Allen called Wertz the morning of his disciplinary hearing to ask whether Wertz needed her to be there. This evidence fails to support Wertz’s conclusory allegation, or otherwise establish, that Allen’s phone call amounted to a false representation. Under these circumstances, Wertz has not demonstrated reversible error in the trial court’s grant of summary judgment to Allen on Wertz’s fraud claim. See id.

Judgment affirmed.

Ellington and Doyle, JJ., concur.

       Although a claim of intentional infliction of emotional distress was cliso raised in his original complaint, such was omitted from his amended complaint.

       The trial court also granted summary judgment as to Wertz’s claim for intentional infliction of emotional distress, because Wertz subsequently admitted that he did not have a viable claim for such.

       A preceptor was typically a licensed respiratory therapist employed at the hospital where the student was externing.

       In 2005, MSC sponsored Wertz and other MSC students to attend a respiratory care convention at a hotel in San Antonio, Texas. Management of the hotel contacted MSC faculty regarding a complaint about Wertz and another student shining a laser pointer at hotel guests. Wertz admitted to the conduct, and MSC issued Wertz a disciplinary warning. Wertz’s warning notified him that should he receive any future conduct complaints, they would be forwarded immediately to the MSC student disciplinary committee for adjudication.

       Although Wertz argues that Allen’s statements were not absolutely privileged, we need not address whether the absolute privilege applied in this case since the evidence clearly establishes that the conditional privilege applied.

       OCGA § 51-5-9 provides that “[i]n every case of privileged communications, if the privilege is used merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action.”


source: Caselaw Access Project

author: Phipps, Presiding Judge.

license: Public Domain

text:
    A11A1006, A11A1007.
    HAWKINS et al. v. DeKALB MEDICAL CENTER, INC. et al.; and vice versa.
    (721 SE2d 131)
   Phipps, Presiding Judge.

Tara Hawkins sustained head trauma and was taken by ambulance to the emergency room at DeKalb Medical Center. She was 18 years old, unconscious, intubated, and pregnant. During several months of hospitalization there, Tara Hawkins never regained consciousness and was maintained with life-sustaining treatment, including the support of mechanical ventilation. Eventually, physicians at the hospital advised her mother, Nonnie Hawkins, of their concern that Tara Hawkins had likely suffered brain death; even if Tara Hawkins had, they advised Nonnie Hawkins, medical intervention could possibly preserve the life of the fetus until viability. After the baby was born, testing conducted upon Tara Hawkins confirmed for several treating physicians that she was brain dead. Tara Hawkins was thus pronounced dead; the mechanical ventilation was terminated, and all other life-sustaining treatment was ended. Nonnie Hawkins would later depose, “I never believed she was brain dead” and that “[t]hey just killed my child and told me she was dead.”

This lawsuit was filed by Nonnie Hawkins, as representative of E. H., a minor and sole survivor and child of Tara Hawkins, decedent; and as administrator of the estate of Tara Hawkins. Nonnie Hawkins (hereinafter “Hawkins”) set forth both tort and contract causes of action against numerous health care providers, which claims were premised upon the defendants’ conduct during the process that culminated in the termination of mechanical ventilation and all other life-sustaining measures. Pertinent to these appeals are rulings on summary judgment motions. In Case No. A11A1006, we affirm the trial court’s grant of partial summary judgment in favor of several defendants (with respect to certain damages); in Case No. A11A1007, we reverse the trial court’s denial of summary judgment motions filed by several defendants on the ground that Hawkins had failed to adduce evidence giving rise to a triable issue (with respect to all claims against them).

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.” “In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

The Evidence

Thus viewed in the light most favorable to Hawkins, the record shows the following. Tara Hawkins was transported to DeKalb Medical Center on November 22, 2003. Because she was unconscious, her mother signed, as her representative, an “Admission Consent Form.” It included in the “Consent to Routine Procedures & Treatments” section:

During the course of my care and treatment, I understand that various types of tests, diagnostic or treatment procedures (“Procedures”) may be necessary. These Procedures may be performed by physicians, nurses, technicians, physician assistants or other healthcare professionals (“Healthcare Professionals”). . . . The Procedures may include, but are not limited to the following: . . . Physical tests, assessments and treatments such as vital signs . . . and other similar procedures. ... I consent to Health Professionals performing Procedures as they may deem reasonably necessary or desirable in the exercise of their professional judgment, including those Procedures that may be unforeseen or not known to be needed at the time this consent is obtained.

Tara Hawkins’s initial physicians were emergency medicine doctor Sean Sue, M.D. and pulmonologist Mark Pollock, M.D. She was soon diagnosed as being in a dense coma. And because Tara Hawkins was experiencing seizures, Dr. Pollock requested a consultation with a neurologist, Marshall Nash, M.D.

On November 23, an electroencephalogram (EEG) was performed, the results of which Dr. Nash interpreted as consistent with a global anoxic brain injury; the neurologist believed at that point that brain death in Tara Hawkins was “probably inevitable.” On November 24, in an effort to stop Tara Hawkins’s ongoing seizures, Dr. Nash recommended to Hawkins that the fetus be aborted to allow for more oxygen consumption by Tara Hawkins’s brain cells. Hawkins rejected the recommendation.

Meanwhile, radiological studies indicated that Tara Hawkins’s clinical status had deteriorated since the initial CT scan. A CT scan taken on November 25 showed “a subarachnoid hemorrhage, which [was] consistent with trauma, cerebral edema presumably secondary to the hemorrhage.” By that date, Dr. Nash had reached the opinion that brain death in Tara Hawkins was “present or imminent,” which he expressed to Hawkins. On November 26, Dr. Nash met with an obstetrician specializing in high-risk pregnancies, who informed him of her opinion that the then-12-week fetus could be maintained through the point of viability. As the obstetrician requested, on about November 29, another EEG was performed on Tara Hawkins; Nash interpreted it on December 1 as demonstrating electrocerebral silence. Within days, Hawkins fired both Dr. Nash and the pulmo-nologist with whom he had consulted, Dr. Pollock.

Added to Tara Hawkins’s medical team the first week of December were neurologist Albert Cook, M.D. and pulmonologists Harold Jackson, M.D. and David Snyder, M.D. During the next three-and-a-half months, Tara Hawkins was subjected to extensive neurological testing by numerous physicians to evaluate whether there was any brain function or brain stem function. According to Dr. Cook, the last part of a brain death evaluation was the performance of an apnea test, which, he described, “involves preoxygenation of the patient and then adjustment of the ventilator, and then observation of monitors and measurement of blood gases.” This remaining test (to confirm or dispel brain death) could not be performed, however, because of its potential harm to the fetus. According to Dr. Cook, patients who “fail” the final apnea test are declared dead.

On March 16, 2004, E. H. was born. No longer posing any threat to the baby’s life, more thorough examination of Tara Hawkins could then be performed to assess her clinical status. Dr. Jackson discussed with Hawkins that brain death testing (including apnea testing) would be conducted. That day, March 16, Dr. Cook performed the first of two final neurologic evaluations of Tara Hawkins, which revealed no evidence of any brain activity. That same day, the first of two apnea tests was performed by Dr. Jackson, who deposed that the apnea test did not inflict any harm or injury to Tara Hawkins. Dr. Jackson determined that Tara Hawkins “failed,” having demonstrated no spontaneous respiration. As Dr. Snyder described, during an apnea test, “we take them off the ventilator and put them on blow-by.” Dr. Cook determined that the results of the testing were consistent with brain death. Mechanical ventilation was reimplemented.

The next day, Dr. Jackson discussed with Hawkins that repeat brain death testing would be conducted and that, in the event “[Tara Hawkins] didn’t pass the apnea testing,” mechanical ventilation would not be reimplemented. Meanwhile, a final EEG was ordered and interpreted by Dr. Cook; it demonstrated “electrocerebral silence, absence of brain wave activity.” On March 18, Dr. Cook performed the second and final neurologic evaluation of Tara Hawkins, which revealed no evidence of any brain activity. Drs. Snyder and Jackson performed the second and final apnea test; they determined that Tara Hawkins “failed,” again having demonstrated no spontaneous respiration. Dr. Cook deposed that nothing about the apnea testing affected the condition of the brain stem. Based upon the results of the neurologic assessments and the apnea tests on March 16 and March 18, 2004, Dr. Cook determined that Tara Hawkins did not have any brain function or brain stem function and pronounced her dead on March 18. Drs. Snyder and Jackson agreed and decided not to reimplement ventilatory support.

Drs. Cook, Jackson, and Snyder each deposed that, in his professional judgment, the brain death testing and apnea testing conducted on March 16 and March 18 were reasonably necessary under the circumstances to assess the clinical status of Tara Hawkins. Dr. Jackson further deposed that it would have been outside the standard of care not to perform the brain death testing. Moreover, the hospital had a written policy on brain-based determination of death, and Dr. Cook testified that the brain death determination was conducted in accordance therewith.

On March 19, 2004, the county’s chief medical examiner performed an autopsy on Tara Hawkins’s body. That pathologist noted that the “brain fragmented as attempts were made to remove it” and described a “markedly edematous and near liquified brain” with “severe global encephalomalacia.” He opined that Tara Hawkins had suffered from, inter alia, “ [i] schemic/hypoxic/encephalopathy deteriorating to brain death.” Having also reviewed Tara Hawkins’s medical records, he further opined that on November 22, 2003, Tara Hawkins suffered significant injury to one or both of her vertebral arteries, causing a significant reduction in blood flow to her brain stem that resulted in respiratory and cardiac arrest for a significant period of time. Additionally, the pathologist opined, “To a reasonable degree of medical probability, [Tara] Hawkins had been brain dead for many months prior to her autopsy on March 19, 2004.”

As part of the autopsy, an associate medical examiner for the county examined Tara Hawkins’s brain and spinal cord. According to that pathologist, who had expertise in neuropathology and forensic pathology, “Microscopic examination of the brain revealed global ischemic necrosis with a ‘mummified’ appearance. In addition, the spinal cord demonstrated extensive liquification.” He opined also that, to a reasonable degree of medical probability, Tara Hawkins had been brain dead for many months prior to her autopsy.

Defendants and Theories of Recovery

In May 2006, Hawkins filed suit. Originally, the complaint named three defendants: (i) Dr. Nash (the neurologist, whom she discharged from her daughter’s medical team in December 2003), alleging that he had committed medical malpractice by failing to properly diagnose and treat vascular injuries in Tara Hawkins’s neck, thereby causing harm to both Tara Hawkins and to her unborn child; (ii) DeKalb Neurology Associates, LLC, alleging liability based upon a theory of respondeat superior for Nash’s acts and omissions; and (iii) DeKalb Medical Center, Inc. (DMC), setting forth a count of “tortious termination of life support.” Hawkins alleged that she had “objected to the termination of Tara’s life support for months against the adamant and erroneous opinions that Tara was ‘brain dead,’ ” and that “Tara died when DeKalb Medical Center terminated life support for Tara without the informed consent of Nonnie Hawkins or any member of Tara’s family and without any authorization or order from a court of law.”

Notably, early in the litigation, DMC filed a motion to dismiss this claim, arguing that Hawkins had failed to timely file the action and had failed to comply with the expert affidavit requirements of OCGA § 9-11-9.1. In the first appearance of this case before this court, DeKalb Med. Center v. Hawkins, we affirmed the trial court’s denial of DMC’s motion, having determined that Hawkins’s “claim was not a medical malpractice action requiring an expert medical affidavit under OCGA § 9-11-9.1” and that the claim was not time barred.

Thereafter, Hawkins amended her complaint. In 2008, she added as medical malpractice defendants: (i) Dr. Sue (the emergency medicine physician); and (ii) Dr. Pollock (the pulmonologist whom she discharged from her daughter’s medical team in December 2003). Hawkins alleged that they had committed medical malpractice by failing to properly diagnose and treat vascular injuries in Tara Hawkins’s neck, causing harm to both her and to her unborn child. She also added as a defendant Pulmonary & Sleep Specialists, EC., under a theory of respondeat superior for Dr. Pollock’s acts and omissions.

In 2009, Hawkins filed a second amended complaint, adding as two defendants: Drs. Jackson and Snyder, alleging that these two pulmonologists were liable also for wrongful death by “[t]ortious [tjermination of [l]ife [s]upport.” In this pleading, Hawkins alleged that although she had “adamantly objected to the termination of Tara’s life support,” defendants DMC, Dr. Jackson, and Dr. Snyder “terminated Tara Hawkins’s life support without Court Order and without the informed consent of Nonnie Hawkins or any member of Tara’s family.” Hawkins also added as a defendant Southeastern Lung Care, EC., alleging that under a theory of respondeat superior, the entity was liable for the acts and omissions of Drs. Jackson and Snyder.

Also in her second amended complaint, Hawkins included two new theories of recovery against DMC. In one of the newly added counts, Hawkins alleged breach of contract, citing language in the Admission Consent Form that she signed the day her daughter was admitted to the hospital. Specifically, in the “Advance Directives” section, the form stated: “I acknowledge and understand my rights, as an adult patient, to make decisions regarding treatment, including the right to consent to, refuse or alter treatment, and to formulate advance directives which will govern should I become incapacitated.” Hawkins alleged, “Defendant DeKalb Medical Center’s discontinuation of mechanical ventilation, withdrawal of care, and termination of life support for Tara Hawkins [constituted] a breach of the parties’ contract.”

In the second newly added count against DMC, Hawkins claimed that it was vicariously liable for the alleged medical malpractice committed by Dr. Sue (the emergency medicine doctor). In the lawsuit, Hawkins sought numerous types of damages, as well as costs of litigation.

Summary Judgment Motions and Trial Court’s Rulings

Wrongful death defendants DMC, Dr. Jackson, Dr. Snyder, and Southeastern Lung Care sought summary judgment on the respective claims against them for tortious termination of life support and breach of contract. They argued that they had acted appropriately in connection with terminating mechanical ventilation for Tara Hawkins. They cited Georgia’s Determination of Death Act, OCGA § 31-10-16, which not only sets forth criteria for determining death,

but provides also for immunity in specified circumstances. Hawkins countered that her daughter was not brain dead on March 18, 2004 (prior to the final apnea test) and that discontinuation of her child’s life support required either her consent or judicial approval, of which the defendants had neither. In July 2010, the trial court denied the defendants’ summary judgment motions.

The following month, the trial court granted a summary judgment motion that was jointly filed by those defendants charged with medical malpractice (Drs. Sue, Nash, and Pollock, as well as entities DMC, DeKalb Neurology Associates, and Pulmonary & Sleep Specialists) on Hawkins’s claims for past and future lost wages of Tara Hawkins and for loss of earning capacity of Tara Hawkins.

After entry of a consolidated pretrial order, Hawkins filed in August 2010 a notice of appeal, contesting (inter alia) the grant of summary judgment against her with respect to damages. Thereupon, a joint notice of cross-appeal was filed by DMC, Dr. Jackson, Dr. Snyder, and Southeastern Lung Care, contesting the denials of their summary judgment motions.

In this opinion, we address first the cross-appeal, Case No. A11A1007, as holdings therein either resolve or render moot many of the contentions raised in Case No. A11A1006.

Case No. A11A1007

Wrongful death defendants DMC, Dr. Jackson, Dr. Snyder, and Southeastern Lung Care contend that the trial court erred in denying their motions for summary judgment on Hawkins’s respective claims against them. They cite OCGA § 31-10-16:

(a) A person may be pronounced dead by a qualified physician ... if it is determined that the individual has sustained ... (2) irreversible cessation of all functions of the entire brain, including the brain stem.
(b) A person who acts in good faith in accordance with the provisions of subsection (a) of this Code section shall not be liable for damages in any civil action. . . .
(c) The criteria for determining death authorized in subsection (a) of this Code section shall be cumulative to and shall not prohibit the use of other medically recognized criteria for determining death.

These defendants maintain that, prior to the apnea testing on March 18, Tara Hawkins suffered irreversible cessation of all functions of the entire brain, including the brain stem, and therefore was brain dead; that she was thus pronounced dead in good faith; that they acted appropriately in not reimplementing mechanical ventilation; and therefore, they cannot be held liable for damages in this suit. Drs. Jackson and Snyder add, “Nothing can be more basic to a physician’s assessment of a patient than determining if the patient is alive or dead,” and “[t]here is no duty in Georgia for a physician to continue to treat a dead patient.”

The trial court denied their motions for summary judgment because it determined that there were factual disputes to be resolved by a jury concerning: (a) “whether Tara Hawkins was brain dead as of March 18, 2004”; (b) whether these defendants had acted in good faith pursuant to OCGA § 31-10-16 (b) “when they terminated the life support for Tara Hawkins on March 18, 2004”; and (c) whether the defendant DMC had “Hawkins’ consent to disconnect life support.” For reasons that follow, we agree with the defendants that the evidence created “no genuine issue as to any material fact” on the claims against them, and that therefore, their motions for summary judgment should have been granted.

1. We turn first to these defendants’ motions on Hawkins’s theory of recovery against them for wrongful death by tortious termination of life support. In opposing the motions, Hawkins maintained before the trial court that she “was falsely informed by the [d]efendants that Tara was brain dead when she was not brain dead” and that the defendants “DeKalb Medical Center and Drs. Jackson and Snyder killed her by turning off her ventilator on March 18, 2004.”

While Hawkins thus claimed that it was the termination of mechanical ventilation support that caused her daughter’s death, these defendants argued that it was Tara Hawkins’s brain death that led to the termination of that (as well as all other life-sustaining) support. Resolution of this issue (which resulted from the other), in accordance with Cowart v. Widener, required expert evidence. And Hawkins’s failure to adduce such evidence on this issue doomed her claims that the defendants were liable for wrongful death by tortious termination of life support.

(a) In Cowart, the Supreme Court of Georgia drew a distinction between issues that would require expert evidence and those that would not. On the one hand, the Court explained, “[wjhere the causal link between the defendant’s conduct and the decedent’s injury can be determined by a lay jury without expert guidance, no expert evidence need be produced to defeat a defense motion for summary judgment.” As an example, the Court provided:

[I]n a wrongful death action based on the theory that the defendant proximately caused the decedent’s death by stabbing her in the gut, the plaintiff is not required, in response to a motion for summary judgment, to come forward with expert testimony explaining in medical terms precisely how the wound led to her death.

On the other hand, the Court continued, “sometimes the link between a defendant’s actions and the plaintiffs injury is beyond common knowledge and experience.”

Thus, in deciding whether the plaintiff is required to come forward with expert testimony to withstand a defense motion for summary judgment, the critical question is not whether the causation element involves a “medical question” in the generic sense of the term. Rather, it is whether, in order to decide that the defendant’s conduct proximately caused the plaintiffs injury, a lay jury would have to know the answers to one or more “medical questions” that, as the case law has defined that term, can be answered accurately only by witnesses with specialized expert knowledge. To make the term more clearly reflect its use in deciding cases, we will now refer to “specialized medical questions.”

Given the circumstances underlying this case, whether Tara Hawkins was brain dead prior to apnea testing on March 18, 2004 constituted a specialized medical question to be answered by medical experts. In moving for summary judgment, DMC, Dr. Jackson, Dr. Snyder, and Southeastern Lung Care relied upon the medical testimony of Tara Hawkins’s treating physicians, as well as the physicians who conducted the autopsy. Each physician testified that Tara Hawkins had suffered brain death prior to the apnea testing on March 18.

Consequently, it was incumbent on Hawkins to come forward with expert evidence to give rise to a triable issue on the specialized medical question. She did not do so; instead, she relied on lay witnesses’ accounts that Tara Hawkins was crying, “overbreathing the ventilator,” and moving her hand in response to pleas. Also, Hawkins pointed to the birth of E. H.

Tara Hawkins was observed “crying.” Hawkins’s friend of 20 years deposed that, while alone with Tara Hawkins, “I was reading to Tara and talking to Tara and having a general conversation with Tara about some stuff that was going on with me and tears started to slip out of her eyes like she heard me.” The friend noted, however, that the incident occurred near the “end [of] January, before Valentine’s Day.” This lay witness’s account fell short of creating a genuine issue of material fact as to whether, prior to the apnea test on March 18, Tara Hawkins had suffered brain death.

Tara Hawkins was observed “moving her hand on command. ” Hawkins’s longtime friend recalled that she was with Hawkins, who had assembled family and friends in Tara Hawkins’s hospital room on March 18, because that was the “last day they were going to do this last test, make their assessment and decide whether to keep Tara on the ventilator or life support. . . . And while we were talking about it and we were praying over Tara, she moved her finger, thumb or index.” Hawkins then pleaded with her daughter to wake up, open her eyes, or somehow show that “you’re really here”; Tara Hawkins’s hand moved; “[Hawkins] got really excited and went out in the hall and called some doctors in to see that Tara was really moving.”

The obstetrician deposed that, on March 18, Hawkins reported that Tara Hawkins had been exhibiting twitching in her hand. She recalled that Hawkins expressed her belief that the twitching was significant. The physician deposed, however, that she had never seen Tara Hawkins’s hand move on any prior occasions and that any hand movement on March 18 was of no clinical significance.

A nurse deposed that, on March 18, “[Tara Hawkins] did have some twitching of her right thumb at one point.” However, she testified, “I could not witness to the fact that I thought it was anything other than random. It did not appear to be on demand. . . . I won’t say it was in response to Hawkins.” Further, the nurse recalled, several physicians came to Tara Hawkins’s bedside, and Dr. Cook performed a thorough neurological examination and found no indication of any brain function.

Dr. Cook deposed that, under the circumstances, the hand movement was no indication of any independent brain stem function, but was a manifestation of a working peripheral nervous system. The neurologist explained, “There are other parts of the nervous system . . . [that] can still work with a — in the absence of a brain. . . . Those are the sorts of things we were seeing here.” He added, “[0]bviously we have the benefit of hindsight here where we know the medical examiner’s finding, and a brain that is as described by the medical examiner can’t do this.”

Tara Hawkins was observed “overbreathing the ventilator.” Hawkins deposed that periodically, including on March 18, her daughter was “overbreathing the ventilator.” By that, she was referring to her observation of discrepancies between the ventilator’s setting and the number of patient breaths (per minutes) being registered by the machine.

When asked hypothetically about a discrepancy, Dr. Cook answered that he could not “explain everything that those machines do. I’m not that familiar with the mechanical features of ventilators to know how much of a discrepancy is a discrepancy of significance, nor how much can be induced by external factors.” In addition, he explained that a discrepancy would not necessarily mean that there is brain stem function; and in this case, appropriate brain death testing was conducted and revealed no evidence of any brain function or brain stem function.

E. H. was born. Hawkins pointed to the birth of E. H., as well as a notation on Tara Hawkins’s autopsy report of “[ljactating breasts.” But Dr. Cook deposed that E. H.’s birth had not affected his determination of brain death and that the circumstances of the baby’s birth did not indicate any brain function. And despite the cited autopsy notation, both pathologists involved in conducting the autopsy nevertheless concluded that Tara Hawkins had been brain dead for many months prior to the March 19 autopsy.

A determination of whether the observations of lay witnesses, individually or collectively, showed that Tara Hawkins was not brain dead before the final apnea testing and termination of ventilatory support on March 18 required expert evidence. Without such, a conclusion that Tara Hawkins was not brain dead would be one based on pure speculation or conjecture. “Summary judgment cannot be avoided based on speculation or conjecture; once the pleadings are pierced with actual evidence, the plaintiff must point to admissible evidence showing a genuine issue of fact.” Confronted with the defendants’ expert evidence that Tara Hawkins was brain dead before the final apnea testing occurred, Hawkins failed to adduce any such evidence to the contrary, leaving the record on this issue undisputed.

[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiffs claims or establishing from the record an absence of evidence to support such claims. . . . Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Because the uncontroverted expert evidence thus established that Tara Hawkins was brain dead before the final apnea test was conducted, Hawkins cannot show that the termination of mechanical ventilation caused her daughter’s death. Where, as here, “there is no evidence sufficient to create a genuine issue as to any essential element of [a] plaintiffs claim, that claim tumbles like a house of cards.” For this reason, we conclude that DMC, Dr. Jackson, Dr. Snyder, and Southeastern Lung Care were entitled to summary judgment on Hawkins’s claims of wrongful death by tortious termination of life support.

(b) Consequently, with respect to these tort claims, we need not consider whether these defendants were entitled (also) to immunity under OCGA § 31-10-16. And contrary to the trial court’s determination, a jury need not decide whether these defendants acted in good faith pursuant to OCGA § 31-10-16 so as to entitle them to that statute’s immunity.

(c) Hawkins maintains that the evidence was in dispute regarding whether she consented to the termination of life support.

For reasons set forth above, there is no evidence that Tara Hawkins’s death was caused by any lack of consent. Therefore, even accepting, arguendo, that a factual dispute exists as to whether Hawkins consented to either the brain death testing or to the termination of mechanical ventilation, such an evidentiary conflict affords no escape from summary judgment on the wrongful death claims. “A plaintiff cannot avoid summary judgment by pointing to contradictory evidence in the record on an issue that makes no difference to the legal analysis.”

Nothing in the cases of In re Jane Doe, In re L. H. R., Velez v. Bethune, cited by Hawkins, supports her argument that termination of life support required her consent or a court order. There is a crucial distinction between those cases and the instant one. In those cases, the evidence had not undisputedly established that the patient was brain dead prior to the termination of mechanical ventilation or other life-sustaining measures. Because those cases are inapposite, Hawkins’s reliance upon them is misplaced.

Hawkins also cites language within our prior decision in this case, DeKalb Med. Center, that the issue in this case is “whether [DMC] committed an intentional tort when it deliberately terminated [Tara Hawkins’s] life support without the consent of the decedent, her family, or the court, and over the objections of the decedent’s mother.” When this case was previously before us, we were considering whether Hawkins’s wrongful death claim (at that time filed only against DMC) was barred as either untimely filed or filed unaccompanied by an expert affidavit pursuant to OCGA § 9-11-9.1. At that early stage, the litigation had not yet advanced to the point that Hawkins’s claims were under attack by summary judgment motions (for failure to present evidence giving rise to a triable issue). Given the inapposite procedural posture of our prior decision, the language isolated therefrom is unavailing to Hawkins at this appellate juncture.

2. DMC contends that the trial court erred in denying its motion for summary judgment on Hawkins’s breach of contract claim.

Hawkins claimed that the brain death testing and the termination of life support were done without her consent, contrary to cited language within the “Advance Directives” section of the Admission Consent Form. And as she explains, “This is a wrongful death case, arising from the tortious, unconsented to, discontinuation of Tara Hawkins’ life support by the Appellees. . . . The brain death testing, for which there was no consent, is part of the underlying act that led to Tara Hawkins’ wrongful death.”

DMC countered that Hawkins consented to the brain death testing, citing language within the “Consent to Routine Procedures & Treatments” section. And DMC disputed that it needed Hawkins’s consent to terminate mechanical support after brain death testing revealed that Tara Hawkins was brain dead and she was therefore pronounced dead.

DMC alternatively argued that, irrespective of any consent issue, the breach of contract claim was a mere repackaging of Hawkins’s tort claim and thus failed for the same reason: The undisputed expert evidence established that neither the brain death testing nor the termination of life support caused Tara Hawkins’s death because, prior to both of these events, she already had sustained brain death. On appeal, DMC posits:

[The] apnea and brain death tests no more CAUSE death to a patient than x-rays CAUSE a bone fracture or MRIs CAUSE a brain tumor. Rather, all of these tests are done to elicit information about a patient that ALREADY EXISTS WITHIN THE PATIENT BUT IS NOT YET KNOWN TO THE PATIENT’S PHYSICIAN. For a fracture to show up on an x-ray, the patient’s bone must ALREADY be broken; for a tumor to show up on an MRI, the tumor must ALREADY exist. Similarly, for apnea and brain death tests on Tara to demonstrate death, Tara must ALREADY be dead.

Notably, as was decided early in the litigation, Hawkins asserted no medical malpractice claim against DMC with respect to either the brain death testing or the disconnection of life support equipment. And as we concluded in Division l, there is no evidence that either the brain death testing or the subsequent termination of ventilatory support caused Tara Hawkins’s death; this conclusion remains true, irrespective of whether DMC needed but failed to obtain either Hawkins’s consent or a court order. Because any damages sought by Hawkins therefore did not result from the alleged failure to obtain either her consent or a court’s order, the trial court erred by not granting summary judgment to DMC on Hawkins’s breach of contract claim.

Hawkins persists: “ ‘Touching’ another human being without consent is actionable,” relying on cases such as Prince v. Esposito that recognize, “An action for battery arises in the medical context when a medical professional makes unauthorized contact with a patient during examination, treatment, or surgery.” Plainly, those cases are inapposite and do not provide for an outcome in her favor on DMC’s motion for summary judgment on her breach of contract theory.

While an evidentiary dispute may have arisen as to the issue of consent, DMC’s motion for summary judgment upon this theory of recovery should have been granted.

Case No. A11A1006

3. Hawkins contends that the trial court erred in granting the summary judgment motion filed jointly by DMC and the other medical malpractice defendants on her claim for past and future lost wages of Tara Hawkins and for loss of earning capacity of Tara Hawkins.

The trial court granted the motion after having determined that the medical evidence showed that the traumatic injuries suffered by Tara Hawkins before her arrival at the hospital’s emergency room had already rendered her incapable of any future employment, irrespective of any alleged medical malpractice thereafter. On appeal, Hawkins cites no pertinent evidence that the trial court overlooked, asserting instead that she “provided substantial evidence about Tara’s interest, talents, and aspirations.” This assertion provides no basis for reversing the summary judgment.

Decided November 18, 2011

Reconsideration denied December 6, 2011

Pope, McGlamry, Kilpatrick, Morrison & Norwood, M. Gino Brogdon, William Q. Bird, William B. Drummond, James D. Sum-merville, John W. Crongeyer, Lee T. Wallace, for appellants.

Bendin, Sumrall & Ladner, Timothy H. Bendin, Kristin L. Hiscutt, Huff, Powell & Bailey, Daniel J. Huff, Erica S. Jansen, for appellees.

Glenn P. Hendrix, Arnall, Golden & Gregory, Jason E. Bring, Allen, McCain & OMahony, Hunter S. Allen, Jr., Allen, Weathington & Reeves, Simuel F. Dosier, Jr., amici curiae.

4. Hawkins contends that the trial court erred by unilaterally amending the consolidated pretrial order. She asserts, “The trial court’s amendments effectively granted partial summary judgment on Appellants’ claims for tortious termination of life support. Appellants appeal this erroneous ruling.” Pretermitting whether this contention is properly before us, given our holdings in the preceding divisions, which leave Hawkins without any viable claim, challenges to an amended pretrial order are moot.

Judgment affirmed in Case No. A11A1006. Judgment reversed in Case No. A11A1007.

Andrews and McFadden, JJ., concur.

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted); Norton v. Budget Rent A Car System, 307 Ga. App. 501 (705 SE2d 305) (2010) (we review the denial of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party).

       Dr. Jackson described, “[W]e superoxygenated [Tara Hawkins] and then they placed her on oxygen via blow-by which is going through a tube off the ventilator.” And Dr. Cook described that, during the apnea test, “[Tara Hawkins] is getting oxygen, she’s not getting repetitive positive pressure.”

        DeKalb Med. Center v. Hawkins, 288 Ga. App. 840, 843 (1) (655 SE2d 823) (2007).

       Supra.

       Id. at 844 (1).

       Id. at 844-848 (2).

       (Emphasis supplied.) Hawkins’s claim is premised primarily on the italicized language.

       Hawkins states in a brief, filed February 24, 2011, that the “trial court declined to send the entire case before this [c]ourt for review,” that trial proceeded against the medical malpractice defendants, and that the jury returned verdicts in favor of those defendants.

       See Division 3, infra. See also OCGA § 9-11-56 (h) (“An order granting summary judgment on any issue or as to any party shall be subject to review by appeal.”).

       See OCGA §§ 5-6-38 (a) (allowing for cross-appeals); 5-6-44 (a) (allowing for joint appeals); Southeast Ceramics v. Klem, 246 Ga. 294-295 (1) (271 SE2d 199) (1980) (denial of motion for summary judgment may be carried up as a cross-appeal to the appeal of the grant of a motion for summary judgment).

       See Clay v. State, 256 Ga. 797 (4) (353 SE2d 517) (1987) (holding that evidence was sufficient to sustain malice murder conviction, where blows administered by defendant resulted in irreversible cessation of all functions of the brain and brain stem and victim continued to breathe and his heart continued to beat only because of a life support system) (citing OCGA § 31-10-16 (a)).

       OCGA § 9-11-56 (c).

       Supra. Although Cowart was a negligence case, and this is not, the instructions therein are applicable here.

       Id. at 628 (2) (b) (citations omitted).

       Id. As additional examples, the Court cited Jester v. State, 250 Ga. 119-120 (296 SE2d 555) (1982) (“[T]hat a stab wound penetrating entirely through the heart causes death, is not a matter . . . which should even require expert testimony.”), Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 160 (3) (658 SE2d 909) (2008) (“[W]hether a blow to the head could cause death [is] a question that we have held to be within a lay person’s knowledge”), and Jordan v. Smoot, 191 Ga. App. 74-75 (1) (380 SE2d 714) (1989) (holding that whether an automobile collision caused a backache later the same day is not the type of medical question that requires expert testimony).

        Cowart, supra.

       Id. at 629 (2) (b). As examples, the Court cited Gilbert v. R. J. Taylor Mem. Hosp., 265 Ga. 580, 581 & n. 4 (458 SE2d 341) (1995) (whether plaintiff actually had cancer that required treatment), and Místate Ins. Co., supra at 160 (whether exposure to mold caused plaintiffs respiratory ailments).

       See OCGA § 31-10-16 (authorizing “a qualified physician” to pronounce death if it is determined that individual has sustained “irreversible cessation of all functions of the entire brain, including the brain stem”); see generally In re Bowman, 617 P2d 731 (Wash. 1980) (holding that it is for the medical profession to determine the applicable criteria for deciding whether brain death is present and to define the acceptable practices taking into account new knowledge of brain function and new diagnostic procedures).

       See generally Cowart, supra at 627 (2) (a) (even in simple negligence cases, plaintiffs must come forward with expert evidence to survive a defense motion for summary judgment, where medical questions relating to causation are involved).

       Id. at 633 (3) (c) (citation omitted); see Shadburn v. Whitlow, 243 Ga. App. 555, 556 (533 SE2d 765) (2000) (an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility).

        Cowart, supra at 623 (1) (a) (citations and punctuation omitted); see Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45) (1978) (where plaintiff must produce an expert’s opinion in order to prevail at trial, when the defendant produces an expert’s opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, there is no genuine issue to be tried by the jury).

       See generally Cowart, supra at 631 (3) (a) (if event would have occurred irrespective of defendant’s conduct, such conduct is not cause of event); Bauer v. North Fulton Med. Center, 241 Ga. App. 568, 569 (1) (527 SE2d 240) (1999) (“it is an impossibility to kill or injure someone who is already deceased”).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       See Cowart, supra; Howard, supra; Allstate Ins. Co., supra; Mobley v. Nabisco, Inc., 264 Ga. App. 352 (590 SE2d 741) (2003) (summary judgment was properly granted to defendant on wrongful death claim because plaintiff presented no evidence that victim was still alive at the time of defendant’s complained-of act); see generally In re Bowman, supra.

        Lau’s Corp., supra (if there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim is subject to summary judgment, and “ [a]ll of the other disputes of fact are rendered immaterial”); see Callups v. Cotter, 534 S2d 585 (Ala. 1988) (where child had been diagnosed as brain dead and pronounced dead, and minor patient’s father alleged in lawsuit that defendant doctors had committed against him the “tort of outrage” by removing the life support systems from his child’s body contrary to the family’s expressed wishes, summary judgment was properly granted to defendants because father failed to present evidence of an essential element of the alleged tort; therefore, the question whether the father’s outrage claim was barred by immunity under state’s brain death statute was not reached).

       See Lau’s Corp., supra.

       Defendants maintain that there is no evidence showing that Hawkins objected to brain-death testing.

        Deen v. Stevens, 287 Ga. 597, 612 (3) (b) (698 SE2d 321) (2010) (citation omitted); see Lau’s Corp., supra; Berry v. Hamilton, 246 Ga. App. 608, 610 (541 SE2d 428) (2000) (when a party is relying on inferences to prove a point, not only must those inferences tend in some proximate degree to establish the conclusion sought, but they must also render less probable all inconsistent conclusions).

       262 Ga. 389 (418 SE2d 3) (1992).

       253 Ga. 439 (321 SE2d 716) (1984).

       219 Ga. App. 679 (466 SE2d 627) (1995).

       See In re Jane Doe, supra at 389-391 (evidence showed that hospital patient with degenerative neurological disease varied between being in “stupor and coma,” was placed on breathing and feeding tubes, but “was not in a chronic vegetative state and death was not imminent”); In re L. H. R., supra at 439, 446-447 (concerning the right to refuse medical treatment for a patient in a “chronic vegetative state with no hope of development of cognitive function”; concluding that the decision whether to end the dying process is one for family members or those who bear a legal responsibility for the patient, while courts remain open to assist with disagreement between decision-makers; not addressing, however, “the question of. . . prior judicial approval in cases in which the issue is life-prolonging rather than death-prolonging treatment for incompetent patients”) (emphasis supplied); Velez, supra at 680 (2) (evidence was in conflict as to whether hospital patient was clinically dead at the time in question).

       Supra.

        DeKalb Med. Center, supra at 844 (emphasis supplied).

       Id. at 841.

       See Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 615 (208 SE2d 459) (1974) (a motion for summary judgment is designed to test the merits of the claim).

       See generally May v. Macioce, 200 Ga. App. 542, 544 (2) (409 SE2d 45) (1991) (appellate court holdings as to pleadings and evidence are not binding as the law of the case, where the evidentiary posture of the case in the trial court changes subsequent to the appellate court decision).

       See OCGA § 31-10-16 (a).

       (Emphasis in original.)

       As we noted in the first appearance of this case before us, Hawkins is “not claiming that DMC negligently cared for [Tara] Hawkins prior to terminating her life support or that it negligently performed the actual process of turning off and disconnecting the life support equipment.” DeKalb Med. Center, supra at 842 (1).

       Supra.

       See Division 1 (c), supra.

       See Kuritzky v. Emory Univ., 294 Ga. App. 370, 371 (1) (669 SE2d 179) (2008) (“The elements for a breach of contract claim in Georgia are the (1) breach and the (2) resultant damages (3) to the party who has the right to complain about the contract being broken.”) (citation omitted); see also OCGA § 13-6-2 (“Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.”); Bauer, supra at 572 (3) (b) (“Damages growing out of a breach of contract. . . must be such as could be traced solely to breach, be capable of exact computation, must have arisen according to the usual course of things, and be such as the parties contemplated as a probable result of such breach.”).

        Lau’s Corp., supra (lack of sufficient evidence on any essential element of plaintiffs claim renders all other factual disputes, as to that claim, immaterial).

       278 Ga. App. 310 (628 SE2d 601) (2006). Hawkins cites also King v. Dodge County Hosp. Auth., 274 Ga. App. 44, 45 (616 SE2d 835) (2005) (recognizing that a cause of action for battery exists when objected-to treatment is performed without the consent of, or after withdrawal of consent by, the patient).

        Prince, supra at 311 (1) (a) (punctuation and footnote omitted).

       See generally Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003) (a plaintiff cannot recover for medical malpractice, even where there is evidence of negligence, unless the plaintiff establishes by a preponderance of the evidence that the negligence either proximately caused or contributed to cause the harm).


text:
    A10A0598.
    CITY OF McDONOUGH v. CAMPBELL.
    (721 SE2d 179)
   MILLER, Presiding Judge.

In City of McDonough v. Campbell, 289 Ga. 216 (710 SE2d 537) (2011), the Supreme Court of Georgia reversed the judgment of this Court in City of McDonough v. Campbell, 304 Ga. App. 428 (696 SE2d 150) (2010). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Decided December 6, 2011.

Elarbee, Thompson, Sapp & Wilson, Richard R. Gignilliat, Amy S. Auffant, for appellant.

Power, Jaugstetter & Futch, Warren R. Power, Patrick D. Jaugstetter, for appellee.

Judgment reversed.

Phipps, P. J., and McFadden, J., concur.


author: Ellington, Judge.

text:
    A11A1922.
    MARTIN v. THE STATE.
    (721 SE2d 180)
   Ellington, Judge.

Following a bench trial, the State Court of Douglas County found Teri Martin guilty of driving while under the influence of marijuana and cocaine to the extent it was less safe for her to drive, OCGA § 40-6-391 (a) (2); and possession of marijuana, OCGA § 16-13-30 (j) (1). Martin appeals, contending that the State failed to prove that the highway roadblock that led to her arrest had a legitimate purpose at the programmatic level, and, therefore, that the trial court erred in denying her motion to suppress evidence obtained as a result of that roadblock. Finding no error, we affirm.

It is well settled that “roving patrols in which officers exercise unfettered discretion to stop drivers in the absence of some articu-lable suspicion” are unconstitutional but that standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives are permissible under certain circumstances. Jacobs v. State, 308 Ga. App. 117 (706 SE2d 737) (2011). To justify a stop under this exception to the requirement that a law enforcement officer have an individualized suspicion of a crime before stopping a vehicle,

the State must prove that a highway roadblock program was implemented at the programmatic level for a legitimate primary purpose, that is, that the roadblock was ordered by a supervisor rather than by officers in the field and was implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime. Elevating the roadblock decision from the officers in the field to the supervisory level limits the exercise of discretion by the officers in the field. In addition, the State must prove that all vehicles were stopped as opposed to random vehicle stops; the delay to motorists was minimal; the roadblock operation was well identified as a police checkpoint; and the screening officer’s training and experience was sufficient to qualify him or her to make an initial determination as to which motorists should be given field tests for intoxication.

(Citations, punctuation and footnotes omitted.) Id. at 118.

In this case, it is undisputed that, at approximately 5:00 a.m. on March 28, 2010, Martin stopped at a roadblock on Thornton Road near Skyview Drive. Martin contends that the State failed to identify a supervisor who decided to conduct a roadblock at that exact time and place and failed to offer admissible evidence of that unknown officer’s primary purpose in implementing the roadblock. As a result, she contends, the State failed to prove that the particular roadblock was implemented at the programmatic level for a legitimate primary purpose.

At the hearing on Martin’s motion to suppress, the Chief Deputy of the Sheriff s Office of Douglas County, Stan Copeland, testified that he was authorized to approve roadblocks, although he normally became involved only in large scale operations that required extensive personnel overtime. According to Chief Deputy Copeland, the roadblock at issue in this case was part of a large coordinated effort among the Sheriffs Offices of Douglas County and Carroll County and the Governor’s Office of Highway Safety. The purpose of the operation was highway safety and driver sobriety. Chief Deputy Copeland approved his department’s participation in the operation overnight on March 27-28, 2010, and directed that the exact location and hours of operation of the various roadblocks would be determined by unit commanders, who also had authority to implement roadblocks on their own. The officer who initially spoke with Martin at the roadblock, and a second officer who completed the DUI investigation, testified that, at the time and place where Martin stopped, they were participating in that particular roadblock under the direction and supervision of Sergeant David Martin, who was the commander of the H.E.A.T. (Highway Enforcement of Aggressive Traffic) unit. Based on the testimony of Chief Deputy Copeland and the two field officers, the trial court concluded that the roadblock was implemented in accordance with applicable law. -

Although the State did not offer the testimony of Sergeant Martin regarding his authority to implement roadblocks or his purpose in implementing the roadblock at issue, we decline to hold that the testimony of the supervisory officer who orders a roadblock is required to prove these facts. In this case, the State offered the testimony of Sergeant Martin’s superior officer and supervisor as well as the testimony of two of the officers he (Sergeant Martin) directly supervised in conducting the roadblock on Thornton Road near Skyview Drive on the early morning of March 28, 2010. We conclude that the evidence taken as a whole authorized the trial court to find that Sergeant Martin had authority to implement roadblocks and that he had a legitimate primary purpose for implementing the roadblock at issue. Further, there is no evidence that the roadblock had any characteristic of an impermissible roving patrol. Because Martin raises no argument with regard to any of the other factors that are relevant to whether a roadblock was reasonable under the Fourth Amendment, we affirm the trial court’s order denying her motion to suppress. Jacobs v. State, 308 Ga. App. at 120-121.

Decided December 7, 2011

Allen M. Trapp, Jr., for appellant.

Brian K. Fortner, Solicitor-General, Sherrill N. Britt, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       See Jacobs v. State, 308 Ga. App. at 119-120 (A police captain’s decision to implement the particular roadblock that resulted in the defendant’s arrest was made at the programmatic level for a legitimate primary purpose because the captain testified without contradiction that she was expressly authorized to plan and implement roadblocks and that she decided to set up the roadblock at issue to carry out the directive of her superior officers to conduct road safety checks at a prescribed frequency, even though such delegation of authority was not memorialized in a written manual or policy.).

       See LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998) (The trial court did not err in denying the defendant’s motion to suppress evidence resulting from a roadblock where there was “no evidence of unfettered discretion by the [officers who screened the motorists,]” no evidence that any officer whimsically or arbitrarily singled out the defendant’s vehicle, and no showing that the roadblock was arbitrary or oppressive to motorists.).