Alvin Sewell v. Angel Cancel

FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and DILLARD, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

March 30, 2015

In the Court of Appeals of Georgia
A12A1951. SEWELL et al. v. CANCEL et al.
A12A1952. FAULK et al. v. CANCEL et al.

PHIPPS, Chief Judge.

After the anesthesiology department of a hospital underwent a restructuring,

four anesthesiologists who had been working there under their practice group were

not selected for continued employment. Alleging that they had been wrongfully

terminated because they had voiced concerns of fraudulent billing practices by fellow

anesthesiologists, the four anesthesiologists — Angel Cancel, M.D., Pravin Jain,

M.D., Grace Duque-Dizon, M.D., and Monajna Sanjeev, M.D. — filed suit. Included

amongst the defendants they named, as have since been grouped by the litigating

parties, were: (a) Alvin Sewell, M.D., Sanjiwan Tarabadkar, M.D., and Miles H.
McDonald, M.D.; and (b) Louis Goolsby, M.D., A. Donald Faulk, and The Medical

Center of Central Georgia, Inc. (“The Medical Center”).

In our decision at Cancel v. Sewell,1 we reviewed several rulings on various

defendants’ motions for summary judgment.2 And for reasons explained therein, we

affirmed the judgment in Case No. A12A1950; we reversed in part the judgment in

Case No. A12A1951, while dismissing that case in part; and we dismissed Case No.

A12A1952.3 The dismissals were based on our determination that this court lacked

jurisdiction of an order that had been entered after the filing of the original notice of

appeal.4 In Sewell v. Cancel,5 the Supreme Court of Georgia concluded that

jurisdiction had been perfected as to that order, and thus reversed our decision

otherwise and remanded Case Nos. A12A1951 and A12A1952 to us for further

1
321 Ga. App. 523 (740 SE2d 870) (2013).
2
See id.
3
See id.
4
See id. at 536-537 (7), 538 (9).
5
295 Ga. 235 (759 SE2d 485) (2014). (The Supreme Court of Georgia denied
certiorari in Case No. A12A1950; thereafter, this court issued a remittitur in that
case.)

2
proceedings.6 Accordingly, we vacate Divisions 7 and 9 of our decision at Cancel v.

Sewell,7 which divisions pertained to Case Nos. A12A1951 and A12A1952. Because

the remainder of our opinion at Cancel v. Sewell is not inconsistent with the Supreme

Court’s decision, it stands unchanged. Therefore, much of the factual and procedural

background detailed in that opinion need not be repeated here.

In the order at issue at this juncture, the trial court denied two joint motions for

summary judgment. In both motions, the respective defendants had challenged claims

that sought to hold them liable on theories of breach of fiduciary duty and fraud.

Disposing of those motions, the trial court summarily stated in its order that “there are

genuine issues of material facts as to whether the . . . Plaintiffs are entitled to relief

for their fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary

duty claims.” For reasons explained below, we reverse the judgment in Case No.

A12A1951 and vacate the judgment in Case No. A12A1952 and remand that case to

the trial court.

6
See id. at 235-236.
7
Supra at 536-537 (7), 538 (9).

3
 Case No. A12A1951

Sewell, Tarabadkar, and McDonald challenge the denial of their joint motion

for summary judgment on Counts 4 and 5 of the amended complaint, concerning

allegations of breach of fiduciary duty and fraud. Countering that challenge, the

plaintiffs recite an allegation of their amended complaint:

Defendants Goolsby, Faulk, and [The Medical Center] engaged in a
conspiracy along with Defendants Sewell, Tarabadkar and McDonald
which resulted in the constructive dissolution of CGAS and the
termination of CGAS contractual relations for anesthesiology services
with [The Medical Center], and the establishment of a new group of
anesthesiologists providing services to [The Medical Center] under the
name of The Nexus Medical Group, LLC, which excluded the
Plaintiffs.8

1. Conspiracy. As a preliminary matter, we note that “Georgia law does not

recognize an independent tort of ‘conspiracy.’”9 As the Supreme Court of Georgia has

espoused,

A conspiracy is a combination of two or more persons to accomplish an
unlawful end or to accomplish a lawful end by unlawful means.
Accurately speaking, there is no such thing as a civil action for

8
(Emphasis supplied.)
9
McManus v. Taylor, 326 Ga. App. 477, 484 (3) (756 SE2d 709) (2014).

4
 conspiracy. There is an action for damages caused by acts pursuant to a
formed conspiracy, but none for the conspiracy alone.10

Therefore, “[i]f no cause of action is otherwise alleged, the addition of allegations

concerning conspiracy will not make one; but, where a cause of action is alleged, the

fact of conspiracy, if proved, makes any actionable deed by one of the conspirators

chargeable to all.”11

In their appellate briefs, the plaintiffs maintain that they adduced evidence of

the torts of breach of fiduciary duty and fraud.

2. Breach of Fiduciary Duty. The plaintiffs claim, “There was a breach of

fiduciary duty by Sewell, Tarabadkar, and McDonald because they appropriated the

assets of CGAS for the benefit of NEXUS, to the exclusion of Plaintiffs.”

The gravamen of the plaintiffs’ claim is that Sewell, Tarabadkar, and

McDonald breached their fiduciary duties and usurped CGAS’s corporate

opportunities available through CGAS’s contract with The Medical Center, whereby

only CGAS would provide anesthesiology services to The Medical Center’s hospital

10
U. S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 297 (1) (443 SE2d 833)
(1994) (citations, punctuation, and emphasis omitted).
11
Cook v. Robinson, 216 Ga. 328, 329 (4) (116 SE2d 742) (1960) (citations
omitted).

5
in Macon. Each of the four plaintiffs was a director and shareholder of CGAS; each

of the four plaintiffs had an employment agreement with CGAS, and thereby

practiced medicine at The Medical Center’s hospital. However, the contract between

CGAS and The Medical Center required that all CGAS physicians voluntarily resign

from the medical staff of The Medical Center upon termination of that contract for

any reason. Similarly, each employment contract required the CGAS physician to

resign from the staff of The Medical Center upon termination of employment with

CGAS.

“[A] claim for breach of fiduciary duty requires proof of three elements: (1) the

existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately

caused by the breach.”12 Even accepting, arguendo, that the plaintiffs were not

required to bring a derivative suit,13 we agree with Sewell, Tarabadkar, and

12
Ansley Marine Constr. v. Swanberg, 290 Ga. App. 388, 391 (1) (660 SE2d
6) (2008) (punctuation and footnote omitted).
13
See generally Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585 (1)
(397 SE2d 699) (1990) (“The general rule is that actions for breach of fiduciary duties
are to be brought in derivative suits. . . . Actions seeking to recover for usurped
corporate opportunities belong to the corporation.”) (citation and punctuation
omitted).

6
McDonald that the plaintiffs failed to adduce evidence of an essential element of their

claim.

Sewell, Tarabadkar, and McDonald argued at the summary judgment hearing

that the plaintiffs had failed to show any breach. In particular, these defendants

asserted that the termination of CGAS’s contract with The Medical Center had not

been procured by any breach of fiduciary duty, but was the intended result of a

decision made by the CGAS’s directors/shareholders, who had been confronted with

an unexpected action taken by The Medical Center. Evidence of that action was set

forth in our earlier opinion:

Faulk (as President/CEO of The Medical Center) sent a letter dated
April 25, 2003 to Cancel (as CEO of CGAS), advising that, due to the
allegations raised about and by certain CGAS representatives, including
behavioral issues and fraudulent billing practices, The Medical Center
was intending to cancel its contract with CGAS, effective May 31, 2003,
pursuant to the contract’s “with cause” clause, unless CGAS
demonstrated by that date that it was in substantial compliance with the
contract. The April 25 letter demanded that CGAS promptly retain a
qualified independent consulting firm, subject to The Medical Center’s
approval of both the firm and its audit protocol, to conduct an audit of

7
 CGAS’s billing practices and report the findings thereof to CGAS and
to The Medical Center.[14]

Additionally, the April 25 letter announced The Medical Center’s intent
to restructure its anesthesiology department effective February 29,
2004, even if CGAS demonstrated its compliance with their contract on
or before May 31, 2003. And the letter informed CGAS that, beginning
May 12, 2003, The Medical Center would begin a “recruitment process
for staff anesthesiology positions” and those hired would become its
“employees or independent contractors.” The letter outlined that any
CGAS physician intending to provide services in the restructured
anesthesiology department should promptly submit an application and
that, although The Medical Center could not guarantee that any member
of CGAS would be offered a contract of employment within the
restructured department, The Medical Center would evaluate each
application “fairly, objectively and on its individual merits.”[15]

Counsel for Sewell, Tarabadkar, and McDonald posited at the summary

judgment hearing that The Medical Center’s action had left the CGAS physicians

with essentially “two choices[:] Prove billing compliance and we’ll leave you in place

until February 29. If you don’t prove it, you’re out May 31, which is a very short time

to go find another job. . . . And, so, it wasn’t that they had a lot of choice. I mean my

14
Cancel v. Sewell, supra at 526 (emphasis supplied).
15
Id. (emphasis supplied).

8
people [Sewell, Tarabadkar, and McDonald] didn’t have it either.” Counsel then cited

evidence that, within a few days of receiving Faulk’s letter, the CGAS

directors/shareholders convened a meeting, ultimately deciding that CGAS would

terminate its contract with The Medical Center effective August 31, 2003. Evidence

of CGAS’s response was detailed in our earlier opinion:

[A]t a CGAS shareholders and directors meeting on April 29, 2003, the
attendees discussed a corporate dissolution. Sewell represented that a
dissolution would serve to remove any encumbrances that might stand
in the way of the hospital’s restructuring and allow the hospital to
negotiate contracts with the individuals of the group. At a May 5, 2003
CGAS shareholders and directors meeting, a proposal was unanimously
passed that the CGAS contract with The Medical Center would
terminate on August 31, 2003.16

The minutes from that May 5 meeting reveal that CGAS had its corporate counsel and

compliance counsel present, and that CGAS’s corporate counsel had proposed at the

start of the meeting that CGAS’s contract with The Medical Center, as well as all

physician employment contracts with CGAS, be terminated effective August 31,

2003, so as to avoid earlier termination for cause.

16
Id.

9
 After that meeting, as the evidence showed, many of the CGAS physicians –

including the plaintiffs – submitted applications to work in the restructured

department.17 While eight CGAS physicians received offers to join the restructured

department, the plaintiffs did not.

Directors and officers of corporations must discharge their duties in good faith

and with the care of an ordinarily prudent person in similar positions.18 “Good faith

is not just a question of what is proper for the corporation. It also requires that the

stockholders be treated fairly and that their investments be protected.”19

We agree with Sewell, Tarabadkar, and McDonald that these actions by the

CGAS directors/shareholders (including these three defendants) amounted to an

exercise of their business judgment, based upon facts available at the time and the

17
See generally Bacon v. Volvo Svc. Center, 266 Ga. App. 543, 546 (3) (597
SE2d 440) (2004) (“[A]n employee breaches no fiduciary duty to the employer simply
by making plans to enter a competing business while he is still employed. Even
before the termination of his agency, he is entitled to make arrangements to compete
and upon termination of employment immediately compete.”) (citation and
punctuation omitted).
18
OCGA §§ 14-2-830 (a), 14-2-842 (a).
19
Comolli v. Comolli, 241 Ga. 471, 474 (1) (246 SE2d 278) (1978)
(considering language in Corporation Code requiring directors to act in “good faith”
and with “ordinary diligence” in all transactions).

10
advice of counsel;20 and that the plaintiffs failed to cite any evidence that Sewell,

Tarabadkar, and/or McDonald, nevertheless, breached a fiduciary duty in connection

with the termination of CGAS’s contract with The Medical Center.21 The plaintiffs

rely on Quinn v. Cardiovascular Physicians, P. C.,22 wherein the Supreme Court of

Georgia held that a jury should resolve allegations of misappropriation of business

opportunity and breach of fiduciary duty. But Quinn is distinguishable. In that case,

Quinn sued a professional corporation and her two former associates for, inter alia,

the misappropriation of business opportunity and violation of fiduciary duties.23

Quinn and her two associates – all physicians – had formed their corporation in April

1982 as equal shareholders.24 About two months afterward, in June 1982, Quinn

20
See generally Tallant v. Executive Equities, 232 Ga. 807, 810 (209 SE2d
159) (1974) (noting that courts are reluctant to interfere in matters involving merely
the judgment of the majority in exercising control over corporate affairs).
21
See generally Southeast Consultants v. McCrary Engineering Corp., 246 Ga.
503, 508 (273 SE2d 112) (1980) (explaining that the imposition of liability for
wrongful appropriation of a business opportunity requires, inter alia, a showing that
“the appropriated opportunity was in fact a business opportunity rightfully belonging
to the corporation”), cited in Brewer v. Insight Tech., 301 Ga. App. 694, 695 (1) (689
SE2d 330) (2009).
22
254 Ga. 216 (326 SE2d 460) (1985).
23
Id. at 216-217.
24
Id. at 216.

11
negotiated a one-year contract with a hospital authority, whereby the corporation

would provide cardiology services to the hospital authority.25 But five months later,

Quinn was given notice of a meeting of shareholders and directors, which was called

for the purpose of terminating her status as an officer and employee of the

corporation.26 Quinn tendered her resignation as an officer and director, but indicated

that she wished to continue working as an employee under the corporation’s

agreement with the hospital authority.27 Neither of the other two shareholders

responded; nor did they subsequently allocate to Quinn any portion of the

corporation’s accounts receivable, which had mounted to $138,475 in December

1982.28 Meanwhile, the two shareholders resolved to terminate all the activities of the

corporation;29 next, they formed a second corporation; then, “through their officers

as directors and shareholders of the first corporation, transferred all assets of the first

25
Id.
26
Id.
27
Id.
28
Id.
29
Id. at 217.

12
corporation to the new corporation.”30 Quinn received no notice of any of these

matters.31 On August 1, 1983, the new corporation signed a contract for services with

the same hospital authority.32 Throughout this time, the two shareholders had

remained as officers and directors of the first corporation.33

When sued by Quinn, the two shareholders contended that there was no

business opportunity to be appropriated, positing that the first corporation had

become unable to provide cardiovascular services to the hospital authority.34 This

contention was rejected by the Supreme Court, which determined that the record

authorized a jury to find that

this claimed inability was nothing more than the result of the refusal by
[the two shareholders] to perform medical services on behalf of the first
corporation. . . . A jury might find that, through means of such refusal,
[those two shareholders] purposefully destroyed the expectation of

30
Id. (emphasis supplied).
31
Id.
32
Id.
33
Id.
34
Id. at 219 (4).

13
 renewal which rightfully belonged to the first corporation – all in
violation of their duty to it and to Quinn as minority shareholder.35

And with respect to the allegation of breach of fiduciary duty, the Court cited

evidence that the assets of the first corporation had been “alienated . . . in secret;

Quinn was notified of nothing;”36 the Court explained that a jury might determine that

the defendants had “pirated away all the assets of the first corporation,” leaving it as

“an empty shell, and Quinn’s shares in it but a scrap of paper – all in violation of their

duties of good faith.”37

Those circumstances which gave rise to triable issues in Quinn were not shown

in the instant case. Despite their claim, plaintiffs failed to evince their theory that

Sewell, Tarabadkar, and/or McDonald breached a fiduciary duty by “appropriat[ing]

the assets of CGAS for the benefit of NEXUS, to the exclusion of Plaintiffs.”

35
Id.
36
Id. at 220 (6).
37
Id.

14
Consequently, Sewell, Tarabadkar, and McDonald were entitled to summary

judgment on the claim of breach of fiduciary duty.38

3. Fraud. The plaintiffs claim, “The fraudulent scheme here was to induce the

CGAS physicians to vote to terminate the [The Medical Center]/CGAS contract

themselves so that the Plaintiffs could be terminated without the procedural

protections of the medical staff bylaws and the contractual rights provided by their

individual contracts with CGAS.”

“The tort of fraud has five elements: 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 plaintiff.”39 At the summary judgment hearing,

counsel for Sewell, Tarabadkar, and McDonald argued that the plaintiffs had failed

to adduce any evidence of a false representation.

Although the plaintiffs maintain that they were duped into voting to terminate

CGAS’s contract with The Medical Center, they have pointed to no evidence to

38
Accord Claire v. Rue de Paris, 239 Ga. 191, 194 (236 SE2d 272) (1977)
(“The rule is firmly established that where stockholders in a corporation participate
in the performance of an act, or acquiesce in and ratify the same, they are estopped
to complain thereof.”) (citation and punctuation omitted). Cf. Quinn, supra.
39
Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989) (citation omitted).

15
support that claim. Moreover, the record shows that when the plaintiffs signed their

respective employment agreements with CGAS, they each also executed a resignation

document that was held in escrow by CGAS, in which they expressly relinquished

upon termination “all due process rights” under The Medical Center’s bylaws. The

employment agreements provided that the resignation documents would be tendered

to The Medical Center upon termination of the physicians’ employment for any

reason. As such, plaintiffs were aware of these ramifications when they voted to

terminate CGAS’s contract with The Medical Center. Because the plaintiffs failed to

adduce evidence of any false representation made to them by Sewell, Tarabadkar,

and/or McDonald, these defendants were entitled to summary judgment on the claims

of fraud.40 Nothing in Hayes v. Hallmark Apartments41 or Seminole Peanut Co. v.

Goodson,42 relied upon by the plaintiffs, provides for an outcome in their favor.

40
See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (reiterating
that where “there is no evidence sufficient to create a genuine issue as to any essential
element of [a] plaintiff’s claim, that claim tumbles like a house of cards”).
41
232 Ga. 307 (207 SE2d 197) (1974).
42
176 Ga. App. 42 (335 SE2d 157) (1985).

16
 Case No. A12A1952

Goolsby, Faulk, and The Medical Center (hereinafter, collectively the “Hospital

Defendants”) challenge the denial of their joint motion for summary judgment on

Counts 4 and 5, which sought to hold them liable on theories of breach of fiduciary

duty and fraud, respectively. In their joint motion seeking summary judgment, they

argued that the plaintiffs had failed to adduce evidence to support elements of their

claims of breach of fiduciary duty and fraud. Additionally, they argued that they were

entitled to immunity, pursuant to OCGA § 31-7-132, as to all claims against them. In

the order denying their joint motion for summary judgment, as stated above, the trial

court summarily determined that “there are genuine issues of material facts as to

whether the . . . Plaintiffs are entitled to relief for their fraud, breach of fiduciary duty,

and aiding and abetting breach of fiduciary duty claims.”

4. In their sole enumerated error on appeal, the Hospital Defendants contend

they were entitled to immunity. They assert that the plaintiffs’ claims arose out of

their (the Hospital Defendants’) decision not to renew their (plaintiffs’) medical staff

privileges. The Hospital Defendants assert that, in making those decisions, they were

performing “peer review” activities, and therefore were immune from liability

pursuant to OCGA § 31-7-132 (a). It provides:

17
 No professional health care provider nor any individual who serves as
a member or employee of a professional health care provider or review
organization nor any individual who furnishes counsel or services to a
professional health care provider or review organization shall be held,
by reason of the performance of peer review activities, to have violated
any criminal law or to be civilly liable under any law unless he was
motivated by malice toward any person affected by such activity.43

As the Hospital Defendants acknowledge, the Supreme Court of Georgia

clarified in Hosp. Auth. of Valdosta & Lownes County v. Meeks:44

“‘Peer review’ means the procedure by which professional health care
providers evaluate the quality and efficiency of services ordered or
performed by other professional health care providers . . . .”[45] A
“review organization” “engages in or utilizes peer reviews and gathers
and reviews information relating to the care and treatment of patients
for” certain specified purposes.[46] . . . [W]e hold that a careful reading
of these definitions reveals that they address the evaluation of the
quality and efficiency of actual medical care services and do not
encompass the credentialing process to the extent that every decision to

43
(Emphasis supplied.)
44
285 Ga. 521 (678 SE2d 71) (2009).
45
OCGA § 31-7-131 (1).
46
OCGA § 31-7-131 (3) (B).

18
 extend or maintain staff privileges is a peer review or medical review
function.47

The Hospital Defendants maintain that they made the requisite showings under

Hosp. Auth. of Valdosta & Lownes County as follows. The Hospital cited evidence

that in May 2003, The Medical Center created a panel – with members that included

Goolsby; the psychological consultant who had been engaged to evaluate the

interpersonal dynamics amongst the CGAS physicians; a senior CGAS

anesthesiologist (who is not a party to this litigation); and the director of the

hospital’s surgery center – which interviewed and evaluated the CGAS physicians

who applied for positions within the anticipated restructured anesthesiology

department. According to the Hospital Defendants, “[t]he action taken by the Hospital

Defendants underlying the claims is the panel’s decision. That decision was the result

of peer review, and, therefore, the Hospital Defendants are immune from civil liability

in connection with that peer review activity.”

The plaintiffs counter that the Hospital Defendants were not entitled to

summary judgment based on immunity under OCGA § 31-7-132 because the panel

47
Hosp. Auth. of Valdosta & Lownes County, supra at 523 (citations and
punctuation omitted; emphasis supplied).

19
was not evaluating the quality and efficiency of actual medical care services (that had

been ordered or performed by them (the plaintiffs)). The plaintiffs cite the affidavit

testimony of the CGAS anesthesiologist who was on the evaluation panel:

I was present for each interview. Each interviewee was asked
approximately the same questions, and was given a full chance to
answer and comment on the topics. Generally, the interview focused on
the future of the Department of Anesthesiology at [The Medical Center’s
hospital], the need for harmonious participation by all anesthesiologists
among each other and with [The Medical Center’s] staff, and whether
the interviewee could be a team player in that context.48

The Hospital Defendants respond by citing other evidence, and by relying on

orders entered by the trial court.

(a) Other evidence. The Hospital Defendants cite the deposition testimony of

the psychologist who was on the panel; she described that the evaluations primarily

addressed behavioral issues and in-fighting amongst the CGAS physicians. The

Hospital Defendants additionally cite similar deposition testimony by Goolsby

regarding the panel’s determination that the CGAS group of physicians was not

functioning properly – recalling that they had been accusing each other of billing

48
(Emphasis supplied by the plaintiffs in their brief.)

20
fraud, and summarizing that their “inability to work together, the constant infighting,

bickering and one-upmanship” had become “intolerable.”

We agree with the plaintiffs, however. The evidence cited here does not

establish that the panel, even if a “peer review” committee, was evaluating the quality

and efficiency of “actual medical care services” as contemplated by Hosp. Auth. of

Valdosta & Lownes County.49

(b) Orders entered by the trial court. The Hospital Defendants contend, “The

trial court erred in denying summary judgment to [them] because the court found that

[The Medical Center’s] actions underlying the claims were ‘peer review activities,’

as defined by the peer review statute, but failed to apply the immunity provided for

in the same statute. OCGA § 31-7-132.”

The record reveals that the trial court appointed a special master to make

recommendations upon discovery matters, including whether The Medical Center was

required to produce certain documents to the plaintiffs, or the documents were

protected by the peer review privilege as codified in OCGA § 31-7-133. Along with

that appointment, the trial court ordered, “Documents claimed to be subject to the

49
Supra. Cf., DeKalb Med. Center v. Obekpa, 315 Ga. App. 739, 741 (1) (728
SE2d 265) (2012).

21
medical peer review privilege, will be provided to the Special Master, in camera, for

his review for him to make recommendations to the Court regarding the validity of

the asserted privilege.” Thereafter, the special master made recommendations to the

trial court that certain documents were protected, and the trial court entered orders

adopting the special master’s recommendations.

Thus referring to those orders in seeking summary judgment on the ground of

immunity, the Hospital Defendants posited in their brief: “This Court has already

ruled that the evaluation process was a peer review activity.50 The Court’s ruling was

correct, and settles this issue.”51 Further, at the summary judgment hearing, counsel

for the Hospital Defendants asserted to the court that there was no question “that the

Goolsby process was a peer review process as this [c]ourt, you know, has so held.”

But the trial court interjected, “You know, that’s something I’m not sure about, but

go ahead.” When counsel then referred the court to “orders that have been signed and

50
[The footnote inserted here within these defendants’ joint brief stated in full:
“January 25, 2010 Order (adopting Special Master’s Recommendation Regarding
Plaintiffs’ Motion for Reconsideration that materials created, prepared, and/or used
in the evaluation process for restructuring the anesthesiology department should not
be produced because they are subject to peer review privilege and therefore protected
from disclosure).”]
51
(Emphasis in original.)

22
adopted, you know, by the [trial court] accepting the recommendations of the Special

Master,” the trial court responded, “I’m not sure about the scope of that order. . . .”

Given the circumstances of this case, including the summary order on appeal,52

we vacate the denial of summary judgment; we remand the case so that the trial court

may clarify whether its orders adopting the special master’s discovery

recommendations further determined that, for purposes of immunity under OCGA §

31-7-132 (a), the panel was a peer review committee that was evaluating the quality

and efficiency of actual medical care services.53

52
Notably, in addition to the remarks concerning the scope of the orders
adopting the special master’s recommendations, the trial court repeatedly indicated
at the summary judgment hearing that there was evidence from which a jury could
find malice.
53
See McCall v. Henry Med. Center, 250 Ga. App. 679, 682 (1) (551 SE2d
739) (2001). Cf. DeKalb Med. Center, supra at 739-744 (1) (determining that the
hospital was entitled to immunity under OCGA § 31-7-132 (a), where the hospital’s
investigatory credentials committee reviewed physician’s patient charts, focusing on
whether the physician was properly documenting the treatment of his patients, and
where there was no evidence that the peer review process was motivated by malice).
See generally Wilken Invs., LLC v. Plamondon, 310 Ga. App. 146, 149 (712 SE2d
576) (2011) (vacating judgment and remanding case for further consideration and
clarification of order, where appellate court could not determine, inter alia, the
grounds for the ruling).

23
 5. The Hospital Defendants have not argued to this court that the denial of

summary judgment should be reversed based upon the other grounds they pursued in

the trial court. Consequently, we do not reach the propriety of the trial court’s denial

of summary judgment in that regard.

Judgment in A12A1951 reversed. Dillard, J., concurs, and Ellington, P.J.,

concurs in judgment only.

Judgment in A12A1952 vacated, and case remanded. Dillard, J., concurs as

to Division 5 and concurs in judgment only as to Division 4. Ellington, P. J., concurs

in judgment only.

24