1. We agree with the trial court that the issuance of the license rendered moot all questions in the case other than that of entitlement to attorney fees. Because the issue of entitlement to a hearing can arise in the context of final denial of a license, this is not a situation in which issues, though moot, should be considered because they are capable of repetition, but may evade review. Chastain v. Baker, 255 Ga. 432 (339 SE2d 241) (1986)
. Consequently appellant's enumerations of error concerning his constitutional attack on OCGA 43-34-38
will not be considered.
2. With regard to the trial court's finding that appellant was not a prevailing party, appellant asserts that application of a "but for" analysis demands the conclusion that the Board issued the license only because appellant filed suit and obtained a TRO. However, the correct standard for determining whether a 1983 plaintiff prevails is that used by the U. S. Supreme Court in Farrar v. Hobby, ---- U. S. ---- (113 SC 566, 573, 121 LE2d 494) (1992):
[A] plaintiff "prevails" when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in any way that directly benefits the plaintiff.
In applying that standard, it is essential to bear in mind that the "merits" of appellant's 1983 claim was not the denial of a license to practice medicine, but the denial of his asserted right to a hearing in the licensing process. Although it cannot be denied that the issuance of appellant's license materially altered the legal relationship between the parties in a way that directly benefits appellant, the record does not show that the alteration resulted from "actual relief on the merits" of appellant's claim. Since appellant's 1983 claim concerned the denial of a hearing to which he claimed a right, and there has been no adjudication that he has such a right, it cannot be said that appellant prevailed on the merits of his claim, much less that such relief resulted in the alteration of the parties' relationship. It follows that the trial court was correct in ruling that appellant was not the prevailing party. That being so, appellant is not entitled to attorney fees under 1988 and the trial court's holding regarding appellees' immunity need not be considered.