On July 5, 2016, in Doctors Hospital of Augusta v. Alicea, 2016 Ga. LEXIS 448 (2016), the Georgia Supreme Court affirmed lower court decisions denying a motion for summary judgment. In doing so, the Court interpreted the Georgia Advanced Directive Act, O.C.G.A. § 31-32-1 et seq., holding that it is the will of the patient or her designated agent, and not the will of the health care provider, that controls health decisions.

On November 12, 2009, Bucilla Stephenson executed an advance directive naming Jacqueline Alicea, her granddaughter, as health agent. Stephenson was 89 years old at the time. The advance directive specified that Alicea was authorized to make health care decisions for Stephenson in accordance with what Alicea deteremined to be in Stephenson’s best interest. The advance directive also said: “My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health-care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.”

Stephenson had repeatedly told her family that she was ready to go when the good Lord called her. “When it’s my time, it’s my time, don’t prolong it.” Stephenson specifically told her agent she did not want to rely on a machine to live, including a ventiflator Another family member had died on a ventilator, with Alicea making the decision to remove life support and Stephenson had not wanted to put her granddaughter through that decision-making process again.

Two years passed and Stephenson’s health declined. She was taken to the hospital around February 28, 2012 when Alicea thought Stephenson was having a stroke. Alicea brought Stephenson’s advance directive with her.

Numerous tests were performed, with Alicea inquiring about her grandmother’s condition. At each juncture, Alicea indicated that her grandmother did not want to be intubated and did not want to be placed on a ventilator. At least one doctor charted that Alicea was to be contacted before CPR was performed and before Stephenson was intubated.

On Monday, March 5, 2012, a physician requested consent for a surgical thoracentesis, which was a procedure to drain fluid from Stephenson’s lung cavity. The physician had not read Stephenson’s advance directive or the progress notes charted by the other physician. He did not inform Alicea that the procedure required intubation or the use of a ventilator. If he had provided that information, then Alicea would not have consented to the surgery. During the surgery, the physician discovered that much of Stephenson’s right lung was necrotic (dead) and removed approximately two-thirds of the lung. Stephenson was extubated in the recovery room. Alicea was not informed that her grandmother had been intubated and placed on a ventilator for the procedure.

Two days later, Stephenson experienced respiratory distress during early morning hours. Around 4am, nursing staff called the physician. The physician made the decision to place Stephenson on a ventilator. When the nursing staff questioned whether to call Alicea first, the phsycian rebuffed them saying “I'm not going to call her at six o'clock in the morning and scare the hell out of her. I'll wait till, you know, she wakes up and then I'm going to call her and tell her what happened.” No effort was made to contact Alicea before Stephenson was intubated.

Around 8am that morning, Alicea’s husband stopped by the hospital and discovered Stephenson was on a ventilator. He called his wife, who immediately came to the hospital demanding to know why her instructions were disregarded. It took the nursing staff approximately 15 to 20 minutes to locate a copy of the advance directive in Stephenson’s file and, when they did, one nurse remarked “Boy, somebody really messed up.”

On March 14, Stephenson’s kidney’s began shutting down. A new physician recommended taking Stephenson off of the ventilator, which was done. Comfort measures were provided and Stephenson died three days later, on March 17, 2012.

On May 14, 2013, Alicea filed a lawsuit against the hospital and the physician who intubated Stephenson, and who placed her on the ventilator. The lawsuit alleged that Stephenson was caused unnecessary pain and suffering, contrary to her advance directive for health care and the specific directions of Alicea, her designated health care agent. The complaint alleged breach of agreement, professional and ordinary negligence, medical battery, intentional infliction of emotional distress, and breach of fiduciary duty. When discovery concluded, the defendants filed a motion for summary judgment, alleging they were immune from civil prosecution because the immunity provisions in the Advanced Directive Act protected them.

The trial court rejected the defendants’ arguments and denied the motion for summary judgment. The defendants appealed. The Court of Appeals also rejected the defendants’ arguments and affirmed the trial court. The defendants appealed. The Georgia Supreme Court then accepted the defendants’ petition for certiorari. On appeal, a unanimous Supreme Court affirmed the trial court and the court of appeals, finding that there is no immunity unless the health care provider acts in good faith to follow the patient’s decision, or the decision of her health agent, or unless the provider informs the patient or health agent that it cannot follow the decision on moral grounds and immediately cooperates to facilitate a transfer to a health care provider who will follow the patient’s decision.

In reaching its conclusion, the Court examined the statute and the uncodified preface to the 2007 statute. There it stated: “The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn.” The Court held this means “a clear objective of the Act is to ensure that in making decisions about a patient's health care, it is the will of the patient or her designated agent, and not the will of the health care provider, that controls.”

As part of its decision, the Court gave the following instruction regarding how health decisions are made:

The Act then sets forth several rules for how decisions are to be made in caring for a patient with an advance directive. If the patient's attending physician determines in good faith that the patient is able to understand the general nature of the health care procedure being consented to or refused, the patient's own decision about that procedure prevails over contrary instructions by a health care agent. See OCGA § 31-32-7 (a). However,

[w]henever a health care provider believes a declarant is unable to understand the general nature of the health care procedure which the provider deems necessary, the health care provider shall consult with any available health care agent known to the health care provider who then has power to act for the declarant under an advance directive for health care.

OCGA § 31-32-8 (1). In addition, with respect to the withholding or withdrawal of life-sustaining procedures or nourishment and hydration, the health care agent's directions prevail over the patient's written instructions in the advance directive, unless the advance directive specifies otherwise. See OCGA § 31-32-14 (d). The health care agent also has priority over any other person, including a guardian, to act for the patient in matters covered by the advance directive, unless the directive says otherwise. See OCGA § 31-32-14 (e).

So, was the physician acting in good faith, attempting to follow the patient’s wishes as expressed herself or by her health agent? For purposes of the motion for summary judgment, the Court found he was not.

“The health care decision in question is the decision to intubate Stephenson and put her on a ventilator as a life-prolonging measure around 4:00 a.m on the morning of March 7, 2012. Although there is evidence to the contrary, there is ample evidence that in ordering that procedure, Dr. Catalano was not acting in good faith reliance — in honest dependence — on any decision Alicea had made as Stephenson's health care agent, either to comply with it or to refuse or fail to comply with it and then promptly inform Alicea of his unwillingness. Instead, the evidence would support a finding that Dr. Catalano made the health care decision himself, in the exercise of his own medical and personal judgment. By his own account, when he directed the on-duty doctor to intubate Stephenson, he was not considering the stuff of advance directives and health care agents — “any of the code/no code/do not intubate/resuscitate”; he decided himself “what's right for the patient,” and would check with Alicea later to see if she wanted to “undo” the procedure he was ordering and “pull the tube out.” See footnote 3 above. Dr. Catalano even rebuffed a nurse's question about calling Alicea before ordering the intubation, saying that he would call her later “and tell her what happened.”

The Court declined to comment on the ultimate outcome of the case, or on other disputes among the parties. However, it’s guidance regarding the use of an advance directive is instructive. The patient or her agent is in charge when making health decisions. Summary Judgment was denied.