Kenneth Jones and Clara Ramon, individually and as parents and next friends of their minor son M. J. collectively, the “Joneses”, filed a medical malpractice action, seeking damages and a declaratory judgment related to the allegedly negligent treatment their child received as a patient at the Medical College of Georgia Children’s Medical Center “MCG”. The named defendants included M. J. Allen, D.O.; Prem Singh Shekhawat, M.D.; and Wayne Mathews, M.D. Dr. Allen moved to dismiss the complaint on the ground that she was entitled to official immunity as a state employee, and Dr. Shekhawat and Dr. Mathews filed separate motions for summary judgment on the same basis. Following a hearing, the trial court granted Dr. Allen’s motion to dismiss, and granted Dr. Shekhawat’s and Dr. Mathews’s motions for summary judgment, finding that they were entitled to qualified immunity. The Joneses appeal, challenging both of the foregoing rulings by the trial court. For the reasons set forth below, we affirm in part and reverse in part. We review a trial court’s order dismissing a plaintiff’s complaint de novo. A motion to dismiss asserting sovereign immunity . . . is based upon the trial court’s lack of subject matter jurisdiction, rather than the merits of the plaintiff’s claim. See OCGA § 9-11-12 b 1. The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver, and the trial court’s pre-trial ruling on factual issues necessary to decide the OCGA § 9-11-12 b 1 motion is reviewed on appeal under the any evidence rule. Citations, punctuation, and footnotes omitted. Bonner v. Peterson , 301 Ga. App. 443 687 SE2d 676 2009.
We also review the grant of summary judgment de novo, construing the facts and all inferences drawn from them in the light most favorable to the nonmoving party. See Insurance Co. of Pa. v. APAC-Southeast , 297 Ga. App. 553 677 SE2d 734 2009. Summary judgment is appropriate if the pleadings and evidence “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.” OCGA § 9-11-56 c.
