Supreme Court of Georgia Rules on Novel Medical Negligence Defense

In 2007, the Georgia legislature adapted existing state laws concerning powers of attorney and living wills and adopted the Advance Directive Act. This Act streamlined existing state laws to make it simpler for a citizen to declare preferences for medical treatment and appoint someone to make medical decisions on his or her behalf. Beyond clarifying rights associated with medical decision-making, the Act provided immunity to health care providers in certain situations when care is administered in contravention of the terms of an advance directive. Given the law’s newness, many of these contours of the Act’s provisions have yet to be tested through litigation. However, in a recent decision, Doctors Hosp. of Augusta v. Alicea, the Supreme Court of Georgia took the opportunity to weigh in on the scope of this important law.

The plaintiff in Alicea is the granddaughter of a deceased woman who received care at Doctors Hospital in Augusta, Georgia. The decedent had been brought to the hospital on March 3, 2012, and preliminary tests showed that she was suffering from pneumonia, sepsis, and acute renal failure. About two years earlier, the decedent had executed an advance directive that generally gave the plaintiff the authority to make medical decisions on her behalf, including decisions related to artificial life support treatments. The decedent had repeatedly told her family members that she did not want rely on machines to live and that her family should let her pass when it was time. In addition, the advance directive contained particular provisions expressing the decedent’s desire to not have her life prolonged artificially. At the time the decedent was admitted to the hospital, the plaintiff gave a copy of the advance directive to the staff.

On the day the decedent was admitted to the hospital, a surgeon with staff privileges called the plaintiff to inform her of the decedent’s condition and explain that staff intended to perform a CT scan. The plaintiff agreed to the CT scan but informed the surgeon of the advance directive and of the decedent’s desire to not receive CPR or have heroic measures taken to prolong her life. Later that day, a different physician contacted the plaintiff to give her the CT scan results and ask for her consent to a right chest thorancentesis. The plaintiff consented to this procedure, which did not involve intubation, but she repeated her earlier instruction that heroic measures should not be taken and that CPR should not be administered. In addition, when the physician specifically asked her about ventilation, the plaintiff stated that she should be contacted before either intubation or ventilation would be performed.

A couple days later, the original surgeon called the plaintiff to request her consent to a surgical thorancentesis. The surgeon had neither read the advance directive nor read the notes of the other physician that indicated that the decedent should not be intubated or placed on a ventilator. The plaintiff consented to the procedure but had not been told it would require the use of a ventilator and intubation during the process. The plaintiff asserted that had she known, she would not have consented to the procedure. About two days thereafter, the decedent began to experience respiratory distress, and at 4 a.m. that day the surgeon decided to have the decedent intubated and placed on a ventilator. A nurse asked the surgeon whether the plaintiff should be contacted before the intubation was done, but the surgeon told her to just wait until the morning. The plaintiff’s husband stopped by at around 8 a.m. to discover that the decedent had been intubated and placed on a ventilator. After being informed of the intubation, the plaintiff came to the hospital and asked nursing staff why her instructions to not intubate the decedent had not been followed and why she had not been contacted. The plaintiff inquired about which options existed now that the decedent had been placed on a ventilator. She was told she could elect to either have the ventilator removed, which would lead to the decedent’s suffocation and death, or have another procedure done to remove build up from the lungs. The plaintiff consented to the latter and to several other surgical procedures recommended by the surgeon over the course of the next week. Eventually, the decedent’s kidneys began to shut down, and the plaintiff was informed that the decedent would need dialysis. At this point, the decedent was taken off the ventilator and, three days later, died.

Following this tragic string of events, the plaintiff, as the representative of the decedent’s estate, brought suit against the hospital and the surgeon. The plaintiff alleged, inter alia, that by intubating and placing the decedent on a ventilator, in contravention of the instructions of the advance directive, the decedent’s life was prolonged, causing her unnecessary pain and suffering. The defendants moved for summary judgment, arguing, among other things, that they were entitled to immunity under O.C.G.A. § 31-32-10 (a)(2) and (3). The trial court denied the motion but certified the question for immediate interlocutory appeal. The Court of Appeals affirmed, finding that genuine issues of material fact concerning whether the defendants made a good-faith effort to rely on the advance directive precluded granting summary judgment based on the immunity defense. The Supreme Court of Georgia then granted certiorari.

Notwithstanding the defendants’ persistence, the Supreme Court of Georgia agreed that the defendants were not entitled to summary judgment on the issue of immunity and affirmed the Court of Appeals’ ruling. The crux of the defendants’ argument was that the Advance Directive Act was intended to broadly immunize health care providers and that this immunity was not limited, as the Court of Appeals held, to only those acts taken in good-faith reliance. However, the Supreme Court of Georgia held that this interpretation was inconsistent with the text of the statute, which clearly in the introductory clause immunizes only those providers that “act[] in good faith reliance on any direction or decision by the health care agent.” O.C.G.A. § 31-32-10 (a). The Supreme Court went on to clarify that even though immunity may still be found when a health care provider acts in opposition to the direction of a health care agent, “reliance” requires, at a minimum, that the health care provider act “in dependence on th[e] direction or decision” of the agent. If, however, the health care provider acts “without reference to the agent’s wishes,” reliance cannot be shown.

Applying these standards, the Supreme Court held that immunity was properly denied. First, the court noted that there was ample evidence indicating that the defendants, in particular the surgeon, were not acting in reliance on the instruction of the plaintiff. Furthermore, in order to invoke immunity when actions are taken in direct opposition to an agent’s instruction, one must show that he or she promptly communicated an unwillingness to act in accordance with the directive and take steps regarding the patient’s care until transfer could be effectuated. In this case, there was an absence of evidence suggesting the defendants made any effort to communicate their unwillingness to comply with the agent’s instruction. Accordingly, the Supreme Court affirmed the denial of summary judgment based on the Advance Directive Act immunity.

The use of advance directives has become increasingly popular in recent years, so this is very likely not the last case our state’s highest court will hear regarding the scope of the Advance Directive Act’s provisions. Indeed, medical negligence cases often raise a variety of unique legal issues, and those with a possible claim should consider finding experienced counsel prior to undertaking legal action. The Atlanta wrongful death attorneys at Christopher Simon Attorney at Law have many years of experience representing injured patients, and they are prepared to offer you assistance with a potentially meritorious claim. Indeed, if you’ve recently been injured in a possible case of medical negligence and would like to learn more about your legal options for compensation, feel free to contact us and schedule a free case evaluation.

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