dissenting.
I respectfully dissent because the record does not establish, as a matter of law, that Dr. Cohen waived his right to insist on compliance with the procedural requirements in the bylaws before termination of staff privileges. That was the question of fact which was returned to the trial court for jury resolution because it was not resolved by the summary judgment record. St. Mary’s Hosp. of Athens v. Radiology Professional Corp., 205 Ga. App. 121, 127-128 (3) (c) (421 SE2d 731) (1992).
His right arose from the hospital’s legal duty to follow existing bylaws, and his cause of action to obtain relief from a violation of that duty was founded on OCGA § 51-1-6. It provides: “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” *764As stated in the previous opinion of this Court, “hospitals cannot arbitrarily or capriciously deprive physicians of their privileges . . . [nor] abridge or refuse to follow [their] existing bylaws concerning staff privileges.” Id. at 127.
The jury had before it the letters referenced in the majority opinion as well as all of the facts and circumstances surrounding the long staff privilege relationship of the hospital with the physician, which began in 1968, and with his professional corporation, after it was incorporated in 1971 and he became its employee. The written contract with the corporation was never revised in writing as provided therein and was abandoned by the parties in 1973. The radiological services which were provided through the exercise of Dr. Cohen’s staff privileges were terminated in the summer of 1990.
The hospital has appealed the trial court’s denial of its motion for directed verdict and its subsequent motion for new trial, both of which are bottomed on the argument that Dr. Cohen waived the bylaws’ procedural requirements. On appeal, the question is whether there is “any evidence” to support the jury verdict. Professional Consulting v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992). Specifically in this instance, we must decide whether there is any evidence to support the finding that Dr. Cohen did not waive the protection of the procedure established by the bylaws for the termination of staff privileges. “ ‘The grant or denial of a motion for new trial... is a matter within the sound discretion of the trial court and will not be disturbed ... if there is “any evidence” to authorize it.’ ” Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 859 (3) (360 SE2d 418) (1987). The question is not whether there is evidence to support an opposite finding but rather whether it was demanded. Waiver was a defense; the absence of waiver was not an element of the tort, incumbent on plaintiff Cohen to prove.
The letters which Dr. Cohen received did not necessarily require a contemporary objection which, if not registered, worked an acquiescence or a forfeiture of the right to insist on the very specific and orderly step-by-step procedure set up for termination. As summarized by appellee, there was evidence that the letters adding a condition (1) were ultra vires because the board’s credentialing authority was limited under the bylaws to acting upon the recommendation of the medical staff credentialing committees; (2) did not constitute the “decision and notice” required by the medical staff bylaws, as recognized at the time of receipt by Dr. Cohen; (3) were inconsistent with the absence of “special conditions” in the official biannual reapplication, committees’ recommendations, and board action forms related to Dr. Cohen’s staff privileges.
Dr. Cohen explained to the jury why he did not respond in writing to the letters: (1) he had received unconditional decision and no*765tice letters for 12 years; (2) he never received the “special notice” of “adverse recommendation” or “adverse action” required by the staff bylaws; (3) he knew Mr. Fechtel, the administrator, lacked authority to condition his staff privileges, under the bylaws; (4) no written acknowledgment was ever required, despite such requests of other physicians who were asked to waive their staff bylaws rights; (5) the conditioning of staff privileges to an “agreement” was meaningless since there was no “agreement”; and (6) hospital agents never suggested any right to administratively terminate his medical staff privileges despite numerous formal contract negotiation sessions. There was no mention during the sessions that staff privileges were tied to contractual relations, until 1988. Thus, he did not regard the administrator’s letters as affecting his staff privileges. With all of this, and considering the entire history of the dealings between the hospital and Dr. Cohen and his professional corporation, the jury found that a waiver had not been shown; the preponderance of the evidence was otherwise.
Decided March 17, 1995 Blasingame, Burch, Garrard & Bryant, E. Davison Burch, J. Ralph Beaird, Wayne R. Allen, for appellant. J. Hue Henry, John F. Lyndon, for appellee.I cannot conclude from the voluminous trial transcript that the trial court erred in refusing to direct the jury’s verdict on this issue or to depart from the jury’s verdict after it was returned.
I am authorized to state that Presiding Judge Pope, Judge Blackburn and Judge Ruffin join in this dissent.