Full Opinion

FIRST DIVISION BARNES, P. J., MARKLE and HODGES, JJ. NOTICE: Motions for reconsideration must be received no later than 4:30 pm on the 10th day after the decision was issued to be deemed timely filed. https://www.gaappeals.gov/rules October 27, 2026 In the Court of Appeals of Georgia A26A1420. LONON et al. v. BEDENBAUGH. A26A1432. GRANT et al. v. LONON et al. MARKLE, Judge. These related appeals arise from medical care Jerry Lonon received during the COVID pandemic in January 2021 that ultimately resulted in a below-the-knee amputation of his leg. Lonon and his wife, Mary, sued East Georgia Regional Medical Center(“EGRMC”), Georgia Emergency Associates (“GEA”), GEA’s physician Dr. Kyle Bedenbaugh, and its physician assistant (“PA”) Kirstin Grant for professional negligence, gross negligence, and loss of consortium after they allegedly failed to diagnose an arterial blood clot. The trial court granted summary judgment to Bedenbaugh, finding there was no physician-patient relationship between them, but denied it as to Grant and GEA, finding there were factual question as to whether the Pandemic Business Safety Act (“PBSA”), OCGA § 51-16-2(a), applied; whether COVID caused the blood clot; and whether Grant was grossly negligent in her treatment of Lonon.1 In Case No. A26A1420, Lonon appeals from the grant of summary judgment in Bedenbaugh’s favor. In Case No A26A1432, Grant and GEA cross-appeal from the denial of their motion for summary judgment. For the reasons that follow, and with the benefit of oral argument in Case No. A26A1432, we affirm. “This Court reviews a decision on summary judgment de novo, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant.” Radheshvar, LLC v. Perez Larios, 378 Ga. App. 813, 813 (926 SE2d 369) (2026) (quotation marks omitted). So viewed, the record shows that, on January 11, 2021, Lonon came to the emergency room complaining of acute right calf pain while sitting. Grant, as the PA on duty, evaluated Lonon, obtained his medical history and performed a physical exam, noting that Lonon’s leg showed no signs of pallor, coolness, numbness, 1 Under the PBSA, healthcare providers and facilities are not liable for damages arising from a COVID liability claim unless the plaintiff can show they acted with “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” OCGA § 51-16-2(a). 2 paralysis, swelling, erythema, contusions, hematomas, or skin changes.2 Grant assessed a differential diagnosis, including deep vein thrombosis (“DVT”), and ordered a D-dimer test to indicate the presence of possible protein released from dissolving blood clots. The results of Lonon’s D-dimer test were critically elevated — more than 10 times the normal level — which indicated the possibility of a blood clot that could lead to loss of all or part of the leg depending on the type of blood vessel where the clot occurs. Grant then ordered a venous ultrasound to rule out DVT, which revealed no clot in Lonon’s veins. Without any additional testing, Grant diagnosed Lonon with right lower leg pain, prescribed anti-inflammatory medications, and instructed Lonon to follow up with his primary care physician within two days. Dr. Kyle Wilson Bedenbaugh, the physician on duty the day Lonon presented to the emergency room, reviewed Lonon’s chart several hours after Lonon was discharged from the emergency room. According to Dr. Bedenbaugh, Lonon did not require additional testing despite his D-dimer value given his exam and the fact that he had no history of arterial disease. The following day, Lonon received the result of an 2 Grant testified that she checked pulses in the leg and foot, and they were normal, but there is no such documentation in the chart. 3 earlier COVID test, confirming he was positive, and he cancelled the follow-up appointment. Grant’s privileging documents at EGRMC permitted her to discharge patients “under direct order of the M. D.” But Bedenbaugh was not Grant’s supervising physician as documented on her state licensing documents. Dr. Bedenbaugh did not discuss Lonon’s care with Grant at any time, nor did he speak with Lonon or Mary; his only involvement in the case was reviewing the chart post-discharge. About a week after being discharged from EGRMC, Lonon presented to University Hospital in Augusta, again complaining of lower leg pain. He was diagnosed with acute limb ischemia resulting from an arterial blood clot in his right leg, which required a lower-leg amputation the following day. Lonon and Mary subsequently filed suit against EGRMC, Dr. Bedenbaugh, Grant, and GEA, asserting claims of professional and gross negligence, loss of consortium, and for punitive damages.3 Attached to the complaint was an affidavit of Dr. Jay Falk, an expert in emergency medicine, who opined that medical personnel 3 They also named in their suit Dr. Jessica McLendon and nurse Sheri Nicole Allen, but those defendants were later dismissed. During the pendency of the case, they filed a second amended complaint to add a claim of negligence and gross negligence against GEA arising from its supervision of Grant. 4 failed to recognize that Lonon had an undiagnosed blood clot when he was seen in the emergency room; that medical personnel failed to adhere to the standard of care employed by PAs and physicians when treating Lonon; they were grossly negligent in failing to include the possibility of an arterial blood clot in the differential diagnosis, particularly given the elevated D-dimer results and lower leg pain; and they failed to perform additional testing to rule out an arterial clot. Bedenbaugh, Grant, and GEA moved for summary judgment, arguing that Lonon’s condition was the result of COVID, and thus the lawsuit involved a COVID liability claim under the PBSA. As such, they were not liable unless their conduct amounted to gross negligence. According to the record, Lonon experienced COVID symptoms on January 7, but an initial test prior to his emergency room visit was negative. The following day, Lonon took a COVID test, but did not get the results back for a couple of days. The day after his discharge from EGRMC, he received a positive test result from the January 8 test. When Lonon went to University Hospital, he was tested again, and that test was negative. 5 With respect to the issue of COVID, all of the experts agreed that Lonon likely had COVID at the time he presented to EGRMC, and that COVID could cause blood clots. As to Grant’s treatment of Lonon, Dr. Samuel Hager, a vascular surgeon, opined she violated the standard of care, but that she was not grossly negligent. In a subsequent affidavit, Hager clarified that Grant missed the diagnosis of arterial insufficiency and she should have performed additional testing. As a result, he concluded that Grant grossly deviated from the standard of care in failing to include arterial insufficiency on her differential, failing to order the proper tests to rule out the condition, and discharging Lonon without performing tests that could have identified an arterial clot. PA Shannon Areford testified that Grant was grossly negligent by failing to consider other differential diagnoses and perform additional tests that may have led to a more accurate diagnosis. Dr. Shannon Stinson and Dr. Jonathan Eliason, on the other hand, opined that Grant and Bedenbaugh met the standard of care. Following a hearing, the trial court granted summary judgment to Dr. Bedenbaugh on the ground that he was not Grant’s supervising physician and had no physician-patient relationship with Lonon. But the trial court denied summary 6 judgment to Grant and GEA, finding that whether the PBSA applied, and whether Grant was negligent or grossly negligent were issues for the jury to determine.4 These appeal followed.5 Case No. A26A1420 1. In this appeal, Lonon argues that the trial court erred by granting summary judgment to Dr. Bedenbaugh because, construing the evidence in the light most favorable to them, it was for the jury to decide whether there was a physician-patient relationship. We are not persuaded. In a medical malpractice case, “a plaintiff must prove the following elements: (1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) damage to the plaintiff.” Pattman v. Mann, 307 Ga. App. 413, 417 (701 SE2d 232) (2010) (quotation marks omitted). And, it is a 4 As for their claims for loss of consortium and vicarious liability, the trial court found that because these are derivative claims, they survive summary judgment along with Lonon and Mary’s gross negligence claim. The trial court also found the issue of punitive damages was for the jury. 5 The trial court granted Grant’s and GEA’s certificate of immediate review and they sought interlocutory review. However, we denied the application. Those issues are properly before us now in the cross appeal. OCGA §§ 5-6-34(d); 5-6-38(a). 7 well-settled principle of Georgia law that there can be no liability for malpractice in the absence of a physician-patient relationship. Doctor-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. The relationship is considered consensual where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient. Anderson v. Houser, 240 Ga. App. 613, 615(1) (523 SE2d 342) (1999) (citation modified). See also Rindsberg v. Neacsu, 317 Ga. App. 269, 272-73 (730 SE2d 525) (2012). That consensual relationship may be implied “where a physician has done something, such as participate in the patient’s diagnosis and treatment, that supports the implication that [he] consented to a physician-patient relationship.” Rindsberg, 317 Ga. App. at 273 (quotation marks omitted). See also Harris v. Griffin, 272 Ga. App. 216, 219 (612 SE2d 7) (2005). Here, there is no evidence in the record to raise a factual question about whether there was an express or implied consensual relationship. See Anderson, 240 Ga. App. at 619(1). We generally assume that a patient in the emergency room has consented to a doctor-patient relationship with the treating physicians. Anderson, 240 Ga. App. at 619(1). Thus, “the key question in determining the existence of a 8 doctor-patient relationship is whether the physician has knowingly accepted such individual as his patient.” Anderson, 240 Ga. App. at 619(1). As to that issue, Bedenbaugh and Grant presented testimony and evidence that Bedenbaugh was not Grant’s supervisor; Bedenbaugh did not consult with Grant about Lonon; Bedenbaugh never met or spoke to Lonon or Mary; and Bedenbaugh did not participate in Lonon’s treatment. Bedenbaugh merely reviewed Grant’s diagnosis and treatment and signed off on the chart. The fact that Bedenbaugh was available for consultation does not, without more, establish such a relationship. Anderson, 240 Ga. App. at 619(1). Nothing in the record shows that Lonon sought Bedenbaugh’s involvement, or that Bedenbaugh accepted Lonon as a patient. Compare Harris, 272 Ga. App. at 219 (factual question existed where patient sought referral from doctor, visited his office, completed patient paperwork, and signed a consent to treatment form). Faced with this evidence, Lonon has the burden to proffer specific evidence that creates an issue of fact sufficient to survive summary judgment. Avion Sys. v. Bellomo, 338 Ga. App. 141, 144(1) (789 SE2d 374) (2016) (“Where it has been demonstrated that there is no evidence sufficient to create a jury issue on at least one 9 essential element of plaintiff’s case, the burden shifts to the nonmoving party to point out specific evidence giving rise to a triable issue.” (citation modified)). But Lonon has offered nothing to show the creation of a consensual relationship.6 Rindsberg, 317 Ga. App. at 273; Harris, 272 Ga. App. at 219. Indeed, we have reached this same result under similar facts. See Pham v. Black, 347 Ga. App. 585, 587-88(1) (820 SE2d 209) (2018) (physical precedent only) (hospitalist did not have doctor-patient relationship where he consulted with patient’s physicians and ultimately declined to admit patient to hospital; there must be evidence of some participation in diagnosis and treatment); Tomeh v. Bohannon, 329 Ga. App. 596, 600-01(b) (765 SE2d 743) (2014) (no doctor patient relationship where on-call physician at time of child’s birth was automatically assigned as attending physician even though physician never provided any treatment); Guida v. Lesser, 264 Ga. App. 6 Rather than point to evidence, Lonon argues that Bedenbaugh must have been his doctor because — otherwise — “no one” was and because Grant’s hospital privileges and certification required physician oversight. These facts are more relevant to whether Grant and GEA breached a duty of care; they do not create a consensual relationship between Lonon and Bedenbaugh. See Zeh v. Maso, 366 Ga. App. 890, 894(1) (884 SE2d 563) (2023) (The Physician Assistant Act, OCGA § 43-34-100 et seq., does not make a physician vicariously liable for acts of PA); Anderson, 240 Ga. App. at 619(1) (patient is not third-party beneficiary of doctor’s contract with hospital such that it created consensual relationship). 10 293 (590 SE2d 140) (2003) (in simple negligence case, no doctor-patient relationship where doctor postponed consult, but patient died before the appointment, because doctor did not have contact with patient, know patient’s condition, or offer any advice about treatment); Minster v. Pohl, 206 Ga. App. 617, 620(1) (426 SE2d 204) (1992) (summary judgment proper because although the doctor “unquestionably took action” by viewing X-ray and making notations in chart, the record did not show that he undertook those actions “as her doctor”).7 We find these cases applicable here and, accordingly, we affirm the grant of summary judgment to Bedenbaugh. Case No. A26A1432 2. In this appeal, Grant and GEA argue that the trial court erred by denying their motion for summary judgment because the PBSA applies; there was no factual 7 The cases Lonon relies on are distinguishable because in each of those instances, the doctor participated in treatment decisions, ordered tests, and/or communicated with patients. See Smith v. Rodillo, 330 Ga. App. 365, 369-70(1) (765 SE2d 432) (2014) (sufficient evidence to survive summary judgment where urologist consulted with other doctors, ordered tests, and participated in treatment decisions); Rindsberg, 317 Ga. App. at 271-74 (question of fact where on-call doctor asked nurse about patient’s status, spoke to patient’s family, and refused family’s request to examine patient); Crisp Regional Hosp. v. Oliver, 275 Ga. App. 578, 584(5) (621 SE2d 554) (2005) (sufficient evidence of consensual relationship where doctor consulted with treating physician and ordered tests). But none of those actions occurred here. And Lonon has offered no other evidence to raise a factual question about whether there was a doctor-patient relationship. 11 question about whether Grant’s care was grossly negligent; and there was no evidence to support a claim for punitive damages. We conclude that the trial court properly determined that there were factual questions that preclude summary judgment on these issues. The PBSA provides that providers and healthcare facilities are not liable for damages arising from a COVID liability claim in the absence of gross negligence. OCGA § 51-16-2(a). A “COVID-19 liability claim” is defined as a cause of action for [a]cts or omissions by a healthcare facility or healthcare provider in arranging for or providing healthcare services or medical care to the claimant resulting in injury or death of the claimant for COVID-19 or where the response to COVID-19 reasonably interfered with the arranging for or the providing of healthcare services or medical care at issue to the claimant[.] OCGA § 51-16-1(3)(B). Here, there is conflicting evidence in the record, creating a factual question for the jury. Although the experts generally agreed that Lonon likely had COVID when he was treated at EGRMC, the record also contains evidence of negative COVID test results around the time of his treatment, and the experts do not establish, as a matter of law, that COVID caused the blood clot. Because a factual question remains, we 12 cannot say as a matter of law that the PBSA applies. See Mekoya v. Clancy, 360 Ga. App. 452, 462(2) (861 SE2d 409) (2021) (questions regarding causation are for the jury except in undisputed cases); McKenney’s, Inc. v. Sinyard, 350 Ga. App. 260, 271(1) (828 SE2d 639) (2019) (factfinder is authorized to reject evidence, including expert testimony); Reynolds Constr. Co. v. Reynolds, 218 Ga. App. 23, 25 (459 SE2d 612) (1995) (“Expert testimony is not conclusive or controlling and is submitted for whatever the factfinder considers it to be worth. The factfinder can consider such expert opinion testimony by reference to their own experience and may discard the opinion of experts entirely.” (citation modified)). Moreover, there is conflicting evidence in the record from the various experts as to whether Grant’s treatment satisfied the standard of care, or whether she was negligent or grossly negligent. Generally, questions of negligence and gross negligence are for the jury to decide. Kennestone Hospital v. Turner, 374 Ga. App. 887, 890(1) (914 SE2d 439) (2025) (physical precedent only). As a general rule, when facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable people as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury. 13 Abdel-Samed v. Dailey, 294 Ga. 758, 765(3) (755 SE2d 805) (2014) (citation modified). That is the case here, and thus, we agree with the trial court that summary judgment was not warranted. Finally, as to the claims for punitive damages, OCGA § 51-12-5.1 authorizes an award of punitive damages where “the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1(b). The term “punitive damages is synonymous with the terms ‘vindictive damages,’ ‘exemplary damages,’ and other descriptions of additional damages awarded because of aggravating circumstances in order to penalize, punish, or deter a defendant.” OCGA § 51-12-5.1(a). It is well settled that “mere negligence, although gross, will not alone authorize the recovery of punitive damages. There must be circumstances of aggravation or outrage.” Roberts v. Quick Rx Drugs, 343 Ga. App. 556, 562(2) (807 SE2d 476) (2017) (citation modified). But, whether punitive damages are warranted is typically a question for the jury. Assoc. Health Systems v. Jones, 185 Ga. App. 798, 802(2) (366 SE2d 147) (1988). 14 Our courts have repeatedly held that medical malpractice cases can present the level of aggravating circumstances that allow for punitive damages. See, e.g., Hoffman v. Southwest Comm. Hosp., 260 Ga. 588, 588-89(1) (397 SE2d 696) (1990) (punitive damages against doctor were for jury to decide where doctor’s office made error in chart and never corrected it, leading to surgery on the wrong hand); Ga. Clinic, P.C. v. Stout, 323 Ga. App. 487, 491-92(1) (747 SE2d 83) (2013) (punitive damages warranted where patient’s infection resulted from clinic’s use of medications contaminated in clinic due to failure to maintain sterile conditions, and fact that other patients were also infected showed want of care and conscious indifference to consequences); Tookes v. Murray, 297 Ga. App. 765, 768-69(2) (678 SE2d 209) (2009) (punitive damages was question for jury in dental malpractice case where dentist failed to perform diagnostic procedures to determine why teeth did not fit before using permanent cement to place them); Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 175(2) (355 SE2d 104) (1987) (punitive damages appropriate where nurse knew of patient’s heart condition and medications but failed to inform the doctor). We find these cases instructive here and, accordingly, we conclude that the trial court properly denied summary judgment as to the punitive damages claim, as well. 15 For all these reasons, we conclude that the trial court properly granted summary judgment to Bedenbaugh in Case No. A26A1420, and denied the summary judgment motion with respect to the claims against Grant and GEA in Case No. A26A1432. Judgments affirmed. Barnes, P. J., and Hodges, J., concur. 16