This case is before us on interlocutory review of the trial court’s denial of appellants’ motions for summary judgment.1 Brent Barwick “Barwick” committed suicide while detained in Phillips State Prison “Phillips”. Justin Barwick, Barwick’s brother and administrator of his estate, and Richard Hyer, administrator of the estate of Sandra Barwick, Barwick’s mother, filed this wrongful death action against Debbie Carter, officially and individually, Medical College of Georgia “MCG”, Board of Regents of the University System of Georgia, Georgia Department of Corrections “DOC”, and two of its employees, Stuart Minor and Isaiah Bailey.2 Plaintiffs filed suit pursuant to 42 USC § 1983, alleging that appellants acted with “deliberate indifference” in failing to provide medical care and treatment to Barwick, in violation of the Due Process Clause and the Eighth Amendment of the United States Constitution. Plaintiffs also alleged claims of medical malpractice, violation of OCGA § 42-5-2,3 breach of contract, and wrongful death and negligence. The parties filed cross-motions for summary judgment. The trial court denied plaintiffs’ motion and granted and denied in part defendants’ motion. The court denied Minor’s motion for summary judgment on plaintiffs’ wrongful death claim, finding that even though Minor was acting within the scope of his employment and performing discretionary acts when dealing with Barwick, a question of fact exists for the jury as to whether Minor acted with malice or intent to injure Barwick. The trial court also denied Minor’s motion for summary judgment on plaintiffs’ claim that Minor breached his duty under OCGA § 42-5-2. Finally, the trial court denied both Minor’s and Carter’s motions for summary judgment on plaintiffs’ § 1983 claim, finding that a question of fact exists for the jury as to whether Minor and Carter acted with deliberate indifference. The trial court granted a certificate of immediate review of its rulings with respect to Minor and Carter. For reasons that follow, we reverse the trial court’s decision as to Minor, but affirm the judgment as to Carter. 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 non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 c. A defendant may do this by showing the court that 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 the plaintiff’s case. . . . Our review of an appeal from summary judgment is de novo. Citations omitted. Vasquez v. Smith , 259 Ga. App. 79 576 SE2d 59 2003. See also Willett v. Stookey, P.C. , 256 Ga. App. 403, 410 568 SE2d 520 2002. Viewed in this light, the evidence shows that Barwick arrived at Phillips, a DOC facility, on July 6, 1998, to serve time for a parole violation. On August 30, 1998, Barwick attempted suicide by cutting his foot on his cell toilet. Barwick was treated for the injury and housed at Phillips’ Crisis Stabilization Unit until September 3, 1998. Medical staff subsequently released him to a mental-health building where inmates are allowed to self-medicate with Tylenol. The medical staff at Phillips delivered the Tylenol to Barwick’s building and security staff dispensed it. No log was kept documenting how many pills an inmate was given, and the inmates were not required to ingest the pills in the presence of prison personnel. There was, however, a policy limiting each inmate to two pills every four hours. Phillips had 24-hour, on-site medical care available through a contract with MCG.
According to Barwick’s fellow inmates, he talked about suicide almost daily. Sometime in early September 1998, one inmate told Minor that Barwick was upset and that someone should talk to him. According to the inmate, Minor spoke with Barwick.
