THIRD DIVISION DOYLE, P. J., REESE, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
April 29, 2022
In the Court of Appeals of Georgia A22A0325. MILLER v. POLK et al.
PHIPPS, Senior Appellate Judge.
In this action for negligence and related claims, plaintiff Calvin Miller,
individually and as the administrator of the estate of his deceased wife Jerline Miller,
appeals from the trial court’s order granting summary judgment to defendants Marcus
Polk, M.D., and Anesthesia Consultants of Georgia, LLC d/b/a Oracle Anesthesia of
Georgia (“Oracle,” and, with Dr. Polk, the “Oracle Defendants”).1 Calvin raises
1 Dr. Polk is the sole owner and managing member of Oracle. The record also contains references to an entity named “Oracle Anesthesia of Georgia, LLC.” During oral argument, when asked to clarify the relationship between Anesthesia Consultants of Georgia and Oracle Anesthesia of Georgia, counsel for the Oracle Defendants responded, “[I]t’s a d/b/a; Dr. Polk owns both companies,” which “do the same thing.” Notably, counsel did not suggest that any distinctions between the entities are relevant to this appeal, and we therefore do not distinguish between the entities in this opinion. To the extent that any distinctions between any entities addressed in (or related to the events giving rising to) this appeal are relevant to any claims raised by several challenges to the trial court’s summary judgment rulings. For the reasons that
follow, we reverse the grant of summary judgment on Calvin’s claims for negligent
credentialing, punitive damages, and attorney fees; otherwise affirm the trial court’s
judgment; and remand the case to the trial court for further proceedings consistent
with this opinion.
This action concerns Jerline’s death on August 29, 2019, following
complications she experienced the day before during a visit to Pain Care Center of
Georgia (“Pain Care”) (which is not a party to this action), for a procedure to alleviate
back pain. Calvin’s claims largely center on the actions of certified registered nurse
anesthetist (“CRNA”) Cynthia Hamm, who was on the medical team that treated
Jerline at Pain Care on the day in question, but also is not a party to this action.
In 2004, 2014, and 2017, Hamm was the subject of disciplinary actions before
the Alabama Board of Nursing (the “Alabama Board”). In the 2004 proceeding, the
Alabama Board found that: (i) Hamm failed to disclose a 1998 arrest for driving
under the influence (“DUI”) when she applied to renew her Alabama nursing license
Calvin that remain pending following our decision herein, the parties should raise any such issues before the trial court on remand.
2 in 19982; and (ii) a 2004 pre-employment drug screen returned positive results for
cocaine. The parties entered into a consent order under which, as relevant here,
Hamm was placed on probation for 24 months. She successfully completed the terms
of her probation in 2006.
In the 2014 proceeding, the Alabama Board found that, in 2013, Hamm pleaded
guilty to DUI and following too closely and entered a nolo contendere plea to
criminal trespass, as a result of which she was denied reinstatement of her Louisiana
nursing license in 2013. The parties again entered into a consent order under which
Hamm again was placed on probation for 24 months. The terms of her probation
contained several requirements regarding prescription drug use, as well as supervision
of her work and related reporting requirements. It appears that Hamm was still on
probation when the 2017 proceeding took place.
In the 2017 proceeding, the Alabama Board found that Hamm had violated the
terms of her 2014 consent order by: (i) obtaining prescriptions from doctors not
identified as her primary doctor; (ii) testing positive for a drug that she was not
prescribed; and (iii) failing to comply with several work supervision and reporting
2 According to the Alabama Board, Hamm was convicted of the DUI offense the day after she submitted her 1998 renewal application.
3 requirements. The parties again entered into a consent order under which Hamm was
placed on probation for 10 months. It appears that Hamm successfully completed the
terms of her 2017 probation in March 2018.
As a result of the 2004 and 2014 Alabama Board proceedings, Hamm also was
the subject of disciplinary actions before the Georgia Board of Nursing in 2006 and
2016. In the 2006 Georgia proceeding, Hamm entered into a consent order in which
she was publically reprimanded. And in the 2016 Georgia proceeding, Hamm again
entered into a consent order pursuant to which she was placed on probation, subject
to a number of terms and conditions. She successfully completed the terms of that
probation on April 18, 2019, approximately four months before Jerline’s death.
From 2012 to 2020, Oracle provided anesthesiologists and CRNAs to Pain
Care pursuant to a Professional Services Agreement. The Professional Services
Agreement explicitly provides that the anesthesiologists and CRNAs whose services
were to be provided under the agreement would be acting as “independent
contractor[s].” Hamm first began working as a CRNA for Oracle in 2015. Between
2015 and 2019, Oracle assigned Hamm to provide anesthesia services to Pain Care.
4 The contract between Hamm and Oracle in effect in August 2019 designated Hamm
as an “independent contractor” of Oracle.3
On August 28, 2019, Jerline was scheduled to undergo a procedure at Pain
Care in which Vincent Galan, M.D. (the president of Pain Care, who also is not a
party to this action), was to insert a spacer in her spine to alleviate back pain. The
medical team for Jerline’s procedure included Hamm (who was to administer
anesthesia), another nurse, and one or more other assistants. In anticipation of the
procedure, Jerline was administered a sedative (to relax or calm her) and a
prophylactic antibiotic.
As she was lying face down on the table on which the procedure was to take
place, before any anesthesia was administered, Jerline began coughing and had
trouble breathing. After the medical team turned Jerline over onto her back, she
stopped breathing, and CPR was administered. Because her heart rate was slowing,
she was administered atropine, after which her heart rate increased slightly; she also
was administered epinephrine due to possible bronchospasms. Also during this time,
3 A prior contract between Hamm and Oracle in effect between May 2017 and May 2018 identified Hamm as an “employee.” (Capitalization omitted.) It is undisputed that the 2017-2018 contract was not in effect at the time of Jerline’s August 2019 visit to Pain Care.
5 Hamm inserted a laryngeal mask airway to help Jerline breathe. Emergency personnel
eventually were summoned and transported Jerline to a hospital. She died at the
hospital the next day of acute respiratory failure due to cardiorespiratory arrest.
In August 2020 (before the current case began), Calvin, individually and as
administrator of Jerline’s estate, entered into a “Settlement Agreement and General
Release of All Claims” with Dr. Galan, Hamm, and Pain Care (collectively, the
“Releasees”), as well as several insurers. Pursuant to the Settlement Agreement, the
Releasees and insurers agreed to pay certain sums to Calvin “in full settlement and
discharge of all claims against Releasees which are, or might have been, related to”
Jerline’s death. In October 2020, Calvin (again individually and as administrator of
Jerline’s estate) sued the Oracle Defendants (along with a third defendant who is not
a party to this appeal) for: (i) negligent selection, hiring, training, credentialing,
retention, and supervision of Hamm (all defendants); (ii) professional negligence
(medical malpractice) (the Oracle Defendants); (iii) imputed/vicarious liability for the
alleged negligence of Pain Care’s medical staff, including Hamm (the Oracle
Defendants); (iv) corporate negligence (all defendants); (v) negligence per se, based
on alleged regulatory violations (the Oracle Defendants); (vi) negligent failure to
6 report Hamm’s alleged misconduct (the Oracle Defendants); (vii) punitive damages
(all defendants); and (viii) attorney fees and expenses of litigation (all defendants).
The Oracle Defendants moved for summary judgment on the claims against
them. They argued, in relevant part, that Calvin’s vicarious liability claims fail
because Hamm was an independent contractor of Oracle or, alternatively, are barred
by the Settlement Agreement. They further maintained that: (i) because neither
Dr. Polk nor Oracle was a supervising physician during Jerline’s August 2019 visit
to Pain Care, neither can be liable for any acts or omissions committed at that time;
(ii) there is no evidence that the Oracle Defendants negligently credentialed, hired,
or retained Hamm; and (iii) Calvin’s malpractice claim fails because Dr. Polk had no
doctor-patient relationship with Jerline.
The trial court granted the Oracle Defendants’ motion for summary judgment
on the following grounds: (i) the Settlement Agreement bars Calvin’s claims against
the Oracle Defendants for vicarious, corporate, and imputed liability; (ii) regardless,
those claims also fail because Hamm was an independent contractor of Oracle when
Jerline was treated at Pain Care in August 2019; (iii) Calvin’s claim for professional
negligence against Dr. Polk fails because Dr. Polk had no doctor-patient relationship
with Jerline; (iv) Calvin’s claim for negligent credentialing fails because there is no
7 evidence that Hamm was unqualified to provide medical care in August 2019;
(v) Calvin’s negligent hiring and retention claims fail because there is no evidence
that any acts or omissions by Hamm caused Jerline’s death; and (vi) Calvin’s claims
for punitive damages and attorney fees will not lie absent a viable underlying,
substantive claim. This appeal followed.
We review de novo a grant or denial of summary judgment, viewing the
evidence and all reasonable conclusions and inferences drawn from it in the light
most favorable to the nonmovant. City of St. Marys v. Reed, 346 Ga. App. 508, 508-
509 (816 SE2d 471) (2018). Summary judgment is proper when there is no genuine
issue of material fact and the movant is entitled to judgment as a matter of law. Id. at
508; see OCGA § 9-11-56 (c). “[T]he burden on the moving party may be discharged
by pointing out by reference to the affidavits, depositions and other documents in the
record that there is an absence of evidence to support the nonmoving party’s case.”
Ellison v. Burger King Corp., 294 Ga. App. 814, 819 (3) (a) (670 SE2d 469) (2008)
(citation and punctuation omitted); see OCGA § 9-11-56 (c). If the movants meet this
burden, the nonmovant “cannot rest on [his] pleadings, but rather must point to
specific evidence giving rise to a triable issue.” Ellison, 294 Ga. App. at 819 (3) (a)
(citation and punctuation omitted); see OCGA § 9-11-56 (e).
8 1. We first address Calvin’s challenge to the trial court’s ruling that Hamm was
an independent contractor (and not an employee) of Oracle, as resolution of this issue
will impact other claims raised by Calvin on appeal. “In general, an employer is not
responsible for the torts of its independent contractor.” Whitaker Farms v. Fitzgerald
Fruit Farms, 347 Ga. App. 381, 385 (1) (819 SE2d 666) (2018); see OCGA § 51-2-4
(“An employer generally is not responsible for torts committed by his employee when
the employee exercises an independent business and in it is not subject to the
immediate direction and control of the employer.”); accord Lopez v. El Palmar Taxi,
297 Ga. App. 121, 123 (2) (676 SE2d 460) (2009). Where, as here, “the contract of
employment clearly denominates the other party as an independent contractor, that
relationship is presumed to be true” unless the evidence shows that the employer
assumed “the right to control the time, manner and method of executing the work.”
Lopez, 297 Ga. App. at 123 (2) (citation and punctuation omitted). On appeal, Calvin
relies on two theories under which, he claims, Hamm may be treated as an employee
of Oracle: ratification and violation of a duty imposed by express contract. Neither
applies here.
(a) An exception to the general rule that an employer is not responsible for an
independent contractor’s torts exists “if the employer ratifies the unauthorized wrong
9 of the independent contractor.” Whitaker Farms, 347 Ga. App. at 385 (1); see OCGA
§ 51-2-5 (6). Calvin contends that the Oracle Defendants may be held liable for
Hamm’s alleged negligence because they ratified her wrongful acts by continuing to
employ her and allowing her to provide medical treatment after learning that she had
violated her probation and engaged in “demonstrable negligence,” apparently in the
care of another Pain Care patient. Calvin has not, however, identified any record
evidence from which a reasonable jury could find that the Oracle Defendants ratified
“the unauthorized wrong” at issue here — namely, Hamm’s allegedly negligent
provision of medical care to Jerline in August 2019 — as all of the acts alleged to
have been “ratified” occurred before then. Whitaker Farms, 347 Ga. App. at 385 (1)
(emphasis supplied); see also Medley v. Boomershine Pontiac-GMC Truck, 214 Ga.
App. 795, 797 (4) (449 SE2d 128) (1994) (“Where the principal ratifies the tort of the
agent after its commission, the liability of the principal is the same as if he had
commanded it, provided the ratification is had with full knowledge on the part of the
principal of the manner in which the tort was committed.”) (citation and punctuation
omitted; emphases supplied). This theory of vicarious liability therefore fails.
(b) Calvin alternatively maintains that the Oracle Defendants may be held
liable for Hamm’s alleged negligence on the ground that such negligence violated a
10 duty imposed by express contract, i.e., the Professional Services Agreement between
Pain Care and Oracle. See OCGA § 51-2-5 (3) (“An employer is liable for the
negligence of a contractor . . . [i]f the wrongful act is the violation of a duty imposed
by express contract upon the employer . . . .”). Under this theory of recovery,
however, “the contractual duties under which the employer would be liable for the
acts of the independent contractor cannot be enforced by one not a party to the
contract.” Kidd v. Dentsply Intl., 278 Ga. App. 346, 350 (2) (629 SE2d 58) (2006)
(citation and punctuation omitted). Neither Calvin nor Jerline was a party to the
Professional Services Agreement. Consequently, this theory of vicarious liability
similarly fails.
(c) Without explanation, Calvin also cites OCGA § 51-2-5 (2), which provides,
“An employer is liable for the negligence of a contractor . . . [i]f, according to the
employer’s previous knowledge and experience, the work to be done is in its nature
dangerous to others however carefully performed . . . .” But he elaborates no
argument as to whether (or, if so, why or how) that provision applies here, and we
therefore deem any such claim abandoned. See Court of Appeals Rule 25 (c) (2);
Tolbert v. Toole, 296 Ga. 357, 363 (3) (767 SE2d 24) (2014) (“It is [the appellant]’s
burden, as the party challenging the ruling below, to affirmatively show error from
11 the record on appeal.”); Brittain v. State, 329 Ga. App. 689, 704 (4) (a) (766 SE2d
106) (2014) (“[A]n appellant must support enumerations of error with argument and
citation of authority, and mere conclusory statements are not the type of meaningful
argument contemplated by our rules.”) (citation and punctuation omitted); Dixon v.
MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (legal analysis, at a
minimum, requires “a discussion of the appropriate law as applied to the relevant
facts,” and “appellate judges should not be expected to take pilgrimages into records
in search of error without the compass of citation and argument”) (citation and
punctuation omitted).
(d) Calvin does not identify any other theories under which the Oracle
Defendants may be held vicariously liable for any alleged wrongdoing by Hamm or
any other member of the medical team that treated Jerline at Pain Care in August
2019. Consequently, we affirm the grant of summary judgment to the Oracle
Defendants on each of Calvin’s imputed or vicarious liability claims.
2. Calvin also challenges the trial court’s ruling that the Settlement Agreement
bars his claims against the Oracle Defendants for vicarious, corporate, and imputed
liability.
12 (a) Our ruling in Division 1 moots Calvin’s challenge to the trial court’s ruling
as to the effect of the Settlement Agreement on his claims for vicarious or imputed
(b) Calvin’s references to corporate liability in his appellate briefs are limited
to: (i) a citation to OCGA § 14-2-622 (b) (“Unless otherwise provided in the articles
of incorporation, a shareholder of a corporation is not personally liable for the acts
or debt of the corporation except that he may become personally liable by reason of
his own acts or conduct.”); and (ii) a conclusory assertion that “[a] court cannot limit
liability of a corporation owner who had privity or knowledge of specific negligent
acts which caused the loss of a life or property.” (Punctuation omitted.) As is the case
with his reference to OCGA § 51-2-5 (2) (see Division 1 (c)), Calvin elaborates no
argument on appeal as to how the facts of this case could give rise to a claim for
corporate liability. We therefore deem any such argument abandoned and affirm the
trial court’s grant of summary judgment to the Oracle Defendants on Calvin’s
corporate liability claim, pretermitting whether such a claim otherwise potentially
could lie under the circumstances presented here. See Court of Appeals Rule 25 (c)
(2); Tolbert, 296 Ga. at 363 (3); Brittain, 329 Ga. App. at 704 (4) (a); Dixon, 242 Ga.
App. at 266 (4).
13 3. Calvin contends that the trial court erred when it granted summary judgment
on his negligent credentialing, hiring, and training claims. As stated above, the trial
court concluded that Calvin’s negligent credentialing claim fails because there is no
evidence that Hamm was unqualified to provide medical care in August 2019 and that
his negligent hiring and retention claims fail because there is no evidence that any
acts or omissions by Hamm caused Jerline’s death. We address each ruling in turn.
(a) Negligent credentialing.
(i) A negligent credentialing claim “is an independent cause of action arising
out of a health care institution’s direct responsibility to its patients to take reasonable
steps to ensure that medical care providers are qualified.” Wellstar Health Systems
v. Green, 258 Ga. App. 86, 88 (1) (572 SE2d 731) (2002) (addressing a claim that a
health care clinic negligently credentialed a nurse on its staff); accord Ladner v.
Northside Hosp., 314 Ga. App. 136, 138, n. 4 (723 SE2d 450) (2012); see also
Sheffield v. Zilis, 170 Ga. App. 62, 63 (1) (316 SE2d 493) (1984) (a health care
institution has a duty to “act in good faith and with reasonable care” in the selection
of medical professionals); Joiner v. Mitchell County Hosp. Auth., 125 Ga. App. 1, 3
(1) (186 SE2d 307) (1971) (a hospital may be liable for its own negligence if it fails
to exercise care in determining the professional competency of a physician). Thus,
14 unlike vicarious liability claims based on respondeat superior, negligent credentialing
claims are “not dependent on a master-servant relationship.” Wellstar Health Systems,
258 Ga. App. at 88 (1) (citation and punctuation omitted); accord McCall v. Henry
Med. Center, 250 Ga. App. 679, 682 (1) (551 SE2d 739) (2001). As with other
negligence claims, to prove negligent credentialing, a plaintiff must “show a legally
attributable causal connection between the defendant’s conduct and the alleged
injury.” Ladner, 314 Ga. App. at 140.
In the trial court, Calvin submitted expert affidavits by two anesthesiologists
(Paul Domson, Jr., M.D., and Jay Ellis, Jr., M.D.) and a CRNA (Brent Sommer).4
Dr. Ellis attested that, during Jerline’s visit to Pain Care in August 2019, the failure
of the medical team (including Hamm) to “provide adequate oxygenation and
ventilation” to Jerline resulted in her cardiac arrest and death. CRNA Sommer
similarly attested that, during that visit, Hamm deviated from acceptable standards of
care in multiple ways and that, as a result, Jerline was transported to the hospital
“with a compromised and inadequate airway and oxygenation” and suffered an
“untimely death.” Moreover, Dr. Domson attested that: (i) the Oracle Defendants
4 The Oracle Defendants do not raise any evidentiary challenges to Calvin’s expert affidavits on appeal.
15 deviated from the standard of care by “fail[ing] to properly credential . . . Hamm and
to remove her from service after having knowledge of her professional and mental
incompetence” based on Hamm’s criminal and disciplinary history; and (ii) the Oracle
Defendants’ negligent credentialing of Hamm was a “significant contributing cause”
of Jerline’s death, which would not have occurred if Hamm had not been improperly
credentialed by the Oracle Defendants.
Given these expert affidavits — which we must view in a light most favorable
to Calvin, see City of St. Marys, 346 Ga. App. at 508-509 — the trial court erred
when it found that Calvin had offered no evidence (a) that Hamm was unqualified to
provide the medical care she rendered to Jerline in August 2019 or (b) of any acts or
omissions by Hamm that caused Jerline’s death. In that regard, the affidavits also
were sufficient to raise disputed factual issues as to whether the Oracle Defendants
satisfied their responsibility to take reasonable steps to ensure that Hamm was
qualified to render the type of medical care that was required of one in her position.
See Wellstar Health Systems, 258 Ga. App. at 88 (1).
In addition, Calvin also submitted evidence that, approximately 21 months
before Jerline’s August 2019 visit to Pain Care, another patient to whom Hamm
provided medical care (through her contract with the Oracle Defendants) suffered
16 injuries resulting from oxygenation problems that arose while resuscitative measures
were being administered.5 Evidence regarding injuries to another patient of Hamm in
an incident that pre-dated Jerline’s August 2019 visit provides further support for
Calvin’s claim that the Oracle Defendants were on notice of Hamm’s alleged
deficiencies and thus acted negligently by authorizing Hamm to provide medical care.
Consequently, we reverse the trial court’s grant of summary judgment to the Oracle
Defendants on Calvin’s claim for negligent credentialing.
(ii) The Oracle Defendants briefly contend that, by “extinguish[ing]” all claims
against Hamm, the Settlement Agreement necessarily extinguished all direct claims
against them because any such claims are “derivative” of the underlying negligence
claims against Hamm. They cite a single decision in support of that proposition:
Hosp. Auth. of Valdosta/Lowndes County v. Fender, 342 Ga. App. 13, 23 (2) (802
5 The Oracle Defendants argue that facts regarding Hamm’s care of another patient are irrelevant and inadmissible in this proceeding. Notably, however, they point to no trial court ruling on any such issue. And while we express no opinion on the ultimate admissibility of such evidence under the factual and procedural posture that may exist when the trial court may be called upon to decide that issue, it suffices to say that, for purposes of the summary judgment rulings at issue here, evidence that Hamm experienced oxygenation problems with another patient before Jerline’s 2019 visit to Pain Care bears on whether the Oracle Defendants satisfied their responsibility to take reasonable steps to ensure that Hamm was qualified to render the type of health care that was required of her position at the time of Jerline’s visit. See Wellstar Health Systems, 258 Ga. App. at 88 (1).
17 SE2d 346) (2017), overruled in part by Quynn v. Hulsey, 310 Ga. 473, 482 & n. 10
(850 SE2d 725) (2020). Our decision in Fender, however, did not hold that a
settlement agreement releasing a primary tortfeasor bars all direct claims against other
potential tortfeasors that may be derivative of the primary tortfeasor’s negligence. See
342 Ga. App. at 23 (2). We rather held that, where an employer “has admitted
respondeat superior liability and the plaintiff is not seeking punitive damages” — a
situation not present in this case — the employer is entitled to summary judgment on
the plaintiff’s claims for negligent hiring, training, supervision, and retention, which
“are merely duplicative of the respondeat superior claim.” Id. (citation and
punctuation omitted). Thus, setting aside the fact that our ruling in that regard was
overruled in Quynn, 310 Ga. at 482 & n. 10, it does not support the Oracle
Defendants’ position, and we therefore reject their claim that the Settlement
Agreement bars Calvin’s direct negligence claims against them.
(iii) We note, however, that the parties have not cited, and research has not
revealed, any binding precedent clearly addressing whether a negligent credentialing
claim may lie against an entity such as Oracle (which, on the current record, does not
appear to be a hospital, clinic, or similar medical facility) or its owner. See, e.g.,
Hosp. Auth. of Valdosta & Lowndes County v. Meeks, 285 Ga. 521, 521 (678 SE2d
18 71) (2009) (claim against hospital); Houston Hospitals v. Reeves, 356 Ga. App. 50,
51 (846 SE2d 219) (2020) (same); Ladner, 314 Ga. App. at 136 (same); Wellstar
Health Systems, 258 Ga. App. at 86, 88 (1), 91 (3) (claim against corporate health
care provider that operated clinic visited by decedent); McCall, 250 Ga. App. at 680
(1) (claim against hospital). Because full briefing by the parties and analysis by the
trial court would be beneficial to the resolution of this issue, the parties should
address it before the trial court on remand.
(b) Negligent hiring, retention, training, and supervision.6
(i) “Under Georgia law, an employer has a legal duty to exercise ordinary care
in the selection of its own employees.” New Star Realty v. Jungang PRI USA, 346 Ga.
App. 548, 561 (1) (c) (i) (816 SE2d 501) (2018) (physical precedent only); see OCGA
§ 34-7-20 (“The employer is bound to exercise ordinary care in the selection of
employees and not to retain them after knowledge of incompetency . . . .”); Doe v.
Young Women’s Christian Assn. of Greater Atlanta, 321 Ga. App. 403, 408 (2) (740
SE2d 453) (2013) (“An employer has a duty to exercise ordinary care not to hire or
6 In its order granting summary judgment, the trial court only briefly mentioned Calvin’s negligent training claim and did not refer at all to his negligent supervision claim. As discussed below, we address those claims here because their resolution necessarily follows from our other rulings in this decision.
19 retain an employee the employer knew or should have known posed a risk of harm
to others where it is reasonably foreseeable that the employee’s tendencies could
cause the type of harm sustained by the plaintiff.”) (citation and punctuation omitted).
The torts of negligent hiring and retention, however, do not apply to independent
contractors. O’Dell v. Mahoney, 324 Ga. App. 360, 367 (4) (750 SE2d 689) (2013);
see Finley v. Lehman, 218 Ga. App. 789, 791 (2) (463 SE2d 709) (1995) (the tort of
negligent hiring does not apply to an independent contractor). Because, as discussed
above in Division 1, Calvin has not shown that the trial court erred when it
determined that Hamm was an independent contractor, we affirm the grant of
summary judgment on his claims for negligent hiring and retention.
(ii) Given that Calvin has not shown that Hamm was the Oracle Defendants’
employee, the Oracle Defendants also were entitled to summary judgment on Calvin’s
claim for negligent training. See New Star Realty, 346 Ga. App. at 562 (1) (c) (ii)
(“[T]here can be no claim for negligent hiring, training, and supervision of certain
individuals where, as here, the defendant was not the employer of those
individuals.”). And while not explicitly addressed by the trial court, the same is true
for Calvin’s claim for negligent supervision of Hamm. See id.
20 4. Calvin has abandoned, by failing to elaborate any argument or cite any
authority in support of his enumeration of error number 4, his claim that “[t]he trial
court erred by granting Defendants[’ m]otion for [s]ummary judgment on all claims
because OCGA § 51-12-33 requires the jury to consider apportioning a percentage
of fault to Defendants as a tortfeasor [sic].” See Court of Appeals Rule 25 (c) (2);
Tolbert, 296 Ga. at 363 (3); Brittain, 329 Ga. App. at 704 (4) (a); Dixon, 242 Ga.
5. Calvin has waived, by failing to enumerate as error, any challenge he may
have to the trial court’s ruling that his claim for professional negligence against
Dr. Polk fails due to the absence of a doctor-patient relationship with Jerline. See
Gresham v. Harris, 349 Ga. App. 134, 138 (1), n. 10 (825 SE2d 516) (2019)
(concluding that the appellant waived any claim that the trial court erred in making
a certain finding “by failing to enumerate it as an error and provide any supporting
argument” on appeal); Karlsberg v. Hoover, 142 Ga. App. 590, 594 (236 SE2d 520)
(1977) (“[T]his court has held that an appellant is required in its initial brief to file an
argument which supports any enumerations of error it does not wish to waive.”). We
therefore affirm the trial court’s ruling on this issue, as well.
21 6. In its order granting summary judgment, the trial court did not address
Calvin’s claims for: (i) professional negligence (medical malpractice) against Oracle;
(ii) negligence per se, based on alleged regulatory violations against the Oracle
Defendants; and (iii) negligent failure to report Hamm’s alleged misconduct against
the Oracle Defendants. Consequently, those claims — upon which we express no
opinion — remain pending before the trial court.
7. Because we reverse the grant of summary judgment on Calvin’s negligent
credentialing claim, see Division 3 (a), and because several additional claims remain
pending, see Division 6, we also reverse the grant of summary judgment on Calvin’s
claims for punitive damages and attorney fees. The trial court should address those
claims after it has disposed of the remaining, underlying, substantive claims.
Judgment affirmed in part and reversed in part, and case remanded with
direction. Doyle, P. J., and Reese, J., concur.