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Tomeh v. Bohannon

Court of Appeals of Georgia

November 13, 2014

TOMEH
v.
BOHANNON et al

Page 744

Medical malpractice. Fulton State Court. Before Judge Roth.

Huff, Powell & Bailey, M. Scott Bailey, Bailey A. Blair, for appellant.

James H. Potts II, for appellees.

MILLER, Judge. Doyle, P. J., and Dillard, J., concur.

OPINION

Page 745

Miller, Judge.

Alikina Bohannon, individually and on behalf of her deceased son, Xavier Bohannon, sued Dr. Mohammad Tomeh, South Fulton Medical Center (" South Fulton" ), and numerous other medical providers, alleging that the hospital and its staff committed malpractice prior to and during Bohannon's labor and delivery, resulting in Xavier's death shortly after he was born prematurely. Dr. Tomeh, a pediatrician, filed a motion for summary judgment, arguing that no doctor-patient relationship existed between him and either Bohannon or Xavier. Following a hearing, the trial court denied Dr. Tomeh's motion, and this Court subsequently granted Dr. Tomeh's application for interlocutory review. On appeal, Dr. Tomeh contends that is it undisputed that no doctor-patient relationship existed between himself and Bohannon or Xavier. We agree and reverse.[1]

[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine [329 Ga.App. 597] 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 plaintiff's claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party's case. 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.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 S.E.2d 779) (2010). We review the denial of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party opposing the motion for summary judgment. Id. at 624 (1) (a).

So viewed, the evidence shows that Bohannon first sought prenatal care from obstetrician Dr. Gabriel Nassar when she was approximately 25 weeks pregnant. Bohannon was of advanced maternal age and suffered from insulin-dependent diabetes and hypertension. Her baby's estimated due date was July 25, 2011. On June 22, 2011, Bohannon arrived at South Fulton's labor and delivery unit, complaining of pain and leaking fluid. Bohannon underwent fetal monitoring and was discharged a few hours later with instructions to rest and drink water.

Bohannon alleged in her complaint that at approximately midnight on June 26, 2011, she called 911 complaining of contractions, pain and vaginal bleeding and was taken to South Fulton by ambulance. She arrived at the hospital at around 1:15 a.m. on June 27 and was examined by Dr. Nassar an hour later. At 3:19 a.m., Dr. Nassar delivered Xavier by cesarean section.

Immediately after birth, Xavier was blue and limp. Medical personnel intubated Xavier and attempted to resuscitate him, but he died around 3:44 a.m. The handwritten notations on Xavier's medical records show that a respiratory therapist intubated Xavier and neonatal nurse practitioner Sara Posley oversaw his treatment. Nurse practitioner Posley was overseen by Dr. ...


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