Dailey v. Abdul-Samed

The mere fact that the plaintiff remained in the emergency department while the medical professional defendants allegedly delayed in providing him requisite care did not automatically invoke the application of O.C.G.A. § 51-1-29.5 c.

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Ryan S. Dailey and Cindy Dailey brought the instant medical malpractice action against Dr. Gihan Abdul-Samed, PA-C Mark Epps, and ACS Primary Care Physicians-Southeast P. C. collectively, “the Defendants”,1 alleging that the Dr. Abdul-Samed and her staff delayed referring Mr. Dailey to a hand surgeon, left his hand injury untreated for a protracted period, and caused a partial amputation of his finger. The Defendants moved for summary judgment on the basis that the Daileys’ suit was governed by OCGA § 51-1-29.5 c since Mr. Dailey presented to the emergency room, and that the Daileys failed to present clear and convincing evidence that Defendants’ actions were grossly negligent. The trial court granted Defendants’ motion for summary judgment, and the Daileys appeal from that order. The Daileys contend that OCGA § 51-1-29.5 is unconstitutionally vague, and that the trial court erred in concluding that the statute insulated Defendants from liability. The Daileys also contend that, even if OCGA § 51-1-29.5 applied, there are still issues of fact as to Defendants’ liability, Dr. Abdul-Samed’s breach of her fiduciary duty to Mr. Dailey, and whether Defendants’ acted in bad faith For the reasons set forth below, we reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this 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 plaintiff’s case.

Dailey v. Abdul-Samed

The mere fact that the plaintiff remained in the emergency department while the medical professional defendants allegedly delayed in providing him requisite care did not automatically invoke the application of O.C.G.A. § 51-1-29.5 c.

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