DOCTORS HOSPITAL OF AUGUSTA, LLC et al. v. ALICEA
S15G1571
Supreme Court of Georgia
JULY 5, 2016
788 SE2d 392
NAHMIAS,
NAHMIAS, Justice.
In March 2012, Jacqueline Alicea‘s 91-year-old grandmother, Bucilla Stephenson, died at the end of a two-week stay at Doctors Hospital of Augusta, LLC (“Hospital“). In May 2013, Alicea, acting as the administratrix of her grandmother‘s estate, sued the Hospital and Dr. Phillip Catalano (collectively, “Defendants“). Alicea alleged among other things that the Defendants intubated her grandmother and put her on a mechanical ventilator, which prolonged her life when she was in a terminal condition and caused her unnecessary pain and suffering, contrary to her advance directive for health care and the specific directions of Alicea, her designated health care agent. The Defendants filed a motion for summary judgment, arguing among other things that
On interlocutory appeal, the Court of Appeals affirmed the portion of the order denying immunity. See Doctors Hospital of Augusta, LLC v. Alicea, 332 Ga. App. 529, 536-543 (774 SE2d 114) (2015). This Court then granted the Defendants’ petition for certiorari to review that aspect of the Court of Appeals’ decision. As explained below, we endorse much of what the Court of Appeals said about the immunity analysis in Division 1 of its opinion, although we conclude that the court skipped over one important point. The correct analysis makes it even clearer, however, that the Defendants were not entitled to summary judgment based on their claim of immunity under
1. Because we are reviewing a motion for summary judgment, we must construe the evidence most favorably towards the nonmoving party, who is given
(a) On November 12, 2009, Stephenson, who was then 89 years old, executed an advance directive for health care (“Advance Directive“), designating as her health care agent Alicea, the granddaughter with whom she lived. The Advance Directive specified that Alicea was “authorized to make all health-care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration, and all other forms of health care to keep me alive.” 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 repeatedly told her family members that “she was ready to go when the good Lord called her,” and said, “when it‘s my time, it‘s my time, don‘t prolong it.” She told Alicea specifically that “[s]he did not want ... to rely on a machine to have to live,” including a ventilator to breathe for her. In 2007, Alicea‘s 80-year-old father had died at the Hospital after entering it with pneumonia and without an advance directive or other document concerning end-of-life decisions. Because Alicea‘s mother had Alzheimer‘s disease, Alicea ultimately had to make the decision to take her father off a ventilator. Stephenson did not want Alicea to have to make that kind of decision about her. In the paragraph of the Advance Directive addressing “end-of-life decisions,” Stephenson initialed the option that said:
Choice NOT to Prolong Life.
I do not want my life to be prolonged if (1) I have an incurable [ ] and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits.
(b) Two years passed. Then, around February 28, 2012, Stephenson developed a persistent cough. On Saturday, March 3, she woke up lethargic; she was minimally responsive and had urinated on herself. After Alicea and her husband assisted Stephenson in sitting up, she became more aware, and they helped her to the bathroom to clean up. As Alicea was bathing her, Stephenson lost control of her bowels, and her eyes rolled toward the back of her head. Alicea and her husband feared that Stephenson was having a stroke and drove her to the Hospital‘s emergency room; Alicea brought the Advance Directive with her.
Blood tests and a chest x-ray showed that Stephenson was suffering from pneumonia, sepsis, and acute renal failure, and she was admitted to the Hospital. Alicea gave the Hospital the Advance Directive, which was placed in Stephenson‘s medical record, but not in the front behind the admission tab as required by Hospital policy to ensure its ready availability to all doctors and Hospital staff. Alicea also gave the Hospital her contact information, including her home, work, and cell phone numbers and her husband‘s cell phone number, so that she could be reached whenever she was away from the Hospital. Alicea has presented evidence showing that from the time Stephenson arrived at the Hospital, she was unable or chose not to make significant health care decisions for herself, triggering Alicea‘s authority to make those decisions pursuant to the Advance Directive.
Around 2:30 p.m., Dr. Carmel Joseph, an ICU physician, called Alicea to give her the results of the CT scan and ask her to consent to a right chest thoracentesis, which would involve a small incision and the insertion of a tube into Stephenson‘s chest to drain infection from her lung; this procedure does not involve intubation.1 Alicea consented to the procedure but repeated her earlier instructions to Dr. Catalano that “no heroic measures” were to be used and that Stephenson was not to be given CPR. Dr. Joseph asked Alicea about ventilation specifically, and Alicea directed him to call her before intubating Stephenson and putting her on a ventilator. Pursuant to the Hospital‘s policy requiring physicians to document in the patient‘s medical chart any discussions with the designated health care agent about an advance directive, Dr. Joseph wrote twice in his progress note that Stephenson was “no CPR” and that Alicea had to be called “before patient is intubated.”2
On Monday morning, March 5, Dr. Catalano called Alicea and requested her verbal consent for a “surgical” thoracentesis to drain more fluid from Stephenson‘s lung cavity. He explained that he would make an incision to insert a tube for drainage and that Stephenson would be under general anesthesia, which Alicea understood to mean that she would essentially be asleep during the procedure. Dr. Catalano had not read the Advance Directive or the progress notes in Stephenson‘s medical chart; he did not tell Alicea, and she did not know, that this procedure would require intubation and the use of a ventilator. Had Alicea known that intubation was required, she would not have consented to the surgery. During the surgery, Dr. Catalano found that much of Stephenson‘s right lung was necrotic (dead tissue), and he removed two-thirds of the lung. Stephenson was extubated in the recovery room, and Alicea was not told that she had been intubated and put on a ventilator.
Two days later, on March 7, Stephenson was experiencing respiratory distress in the early morning hours, and the nursing staff was concerned that she would progress to respiratory failure. Around 4:00 a.m., the nursing staff called Dr. Catalano at home. Dr. Catalano decided to have Stephenson intubated and put on a ventilator to prevent her from going into respiratory or cardiac arrest. A nurse asked Dr. Catalano if he wanted to call Alicea before ordering the life-prolonging intubation, but he rebuffed her, 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.” Dr. Catalano then spoke to the on-duty doctor and directed him to intubate Stephenson, telling the doctor, “I don‘t
When Alicea‘s husband stopped by the Hospital that morning around 8:00 to check on Stephenson, he was surprised to see her on a ventilator. He called Alicea, who was shocked by the news, and told her that the nursing staff could not find the Advance Directive. Alicea left work as quickly as she could, got a copy of the Advance Directive from home, and headed to the Hospital. It took the nursing staff 15 to 20 minutes of searching to locate the Hospital‘s copy of the Advance Directive, and one nurse remarked to Alicea‘s husband, “Boy, somebody has really messed up. I found it.”
When Alicea got to the Hospital, she demanded to know from the ICU nurses why her direction not to intubate Stephenson without calling her first had been disregarded. Alicea was very upset, and the nursing staff asked Dr. Mehrdad (Michael) Behnia, the physician in charge of the ICU, to explain what had happened that morning. Alicea held up the Advance Directive and told the doctor that her grandmother had expressed her wishes, which were contrary to what had happened, and that Alicea had specifically said to call her before putting Stephenson on a ventilator. Later that morning, Dr. Catalano wrote in a progress note that Stephenson was “beginning to go into respiratory failure” at about 4:00 a.m. and that she was “‘exigently intubated’ before emergency” at his request.
Alicea asked Dr. Behnia about possible next steps. He told her that she could decide to have Stephenson taken off the ventilator and extubated, which would cause her grandmother to suffocate and die (as had happened with Alicea‘s father), and that the only other option was to perform another surgery to clean out Stephenson‘s lung cavity more. Had Stephenson been allowed to die that morning, Alicea “would have understood that it was her time and God took her.” Having been deprived of the opportunity to let nature take its course, Alicea consented to the surgical procedure and others recommended by Dr. Catalano and the Hospital staff over the next week, including the placement of a feeding tube, a bronchoscopy to remove pus from Stephenson‘s airway, and a tracheostomy to provide an alternate airway and to remove secretions.
On March 14, Alicea was informed that Stephenson‘s kidneys were shutting down and that she needed dialysis, and Alicea gathered the family at the Hospital to discuss the situation. Dr. Behnia talked to them and recommended that they take Stephenson off the ventilator. He said that she could be moved out of the ICU and given comfort measures such as morphine until she passed away. Alicea then authorized the removal of the ventilator and the provision of comfort measures only, and three days later, on March 17, 2012, Stephenson died.
(c) On May 14, 2013, Alicea, acting as the administratrix of Stephenson‘s estate, filed a complaint against the Hospital and Dr. Catalano, raising claims of breach of agreement, professional and ordinary negligence, medical battery, intentional infliction of emotional distress, and breach of fiduciary duty. The Hospital‘s alleged liability was based on respondeat superior for the actions of its agents and employees. The complaint alleged that Dr. Catalano and other medical personnel associated with the Hospital had subjected the terminally ill Stephenson to unnecessary medical procedures, in particular her intubation and placement on a ventilator on
In support of her claims, Alicea relied on an expert on gerontology, geriatrics, and palliative care.4 The expert concluded that when Stephenson arrived at the Hospital on March 4, she already “had an incurable and irreversible condition that was likely to result in her death within a relatively short period of time thereafter,” and that “her condition was such that the likely risk and burdens of any invasive procedures and treatment outweighed any expected benefits.” Consequently, the expert opined that the Defendants were required under the standard of care to refrain from taking steps to prolong her life in accordance with her Advance Directive as well as the instructions of Alicea, her designated health care agent. According to Alicea‘s expert, Dr. Catalano breached the standard of care by, among other things, failing to review Stephenson‘s Advance Directive and the progress notes in her medical chart to determine if Alicea had given any directions for Stephenson‘s care and by failing to obtain basic consent from Alicea before the March 7 intubation. The expert further opined that the nurses employed by the Hospital had violated the standard of care by failing to contact Alicea before the March 7 intubation and failing to call Dr. Catalano‘s attention to Stephenson‘s Advance Directive and the notation in the progress notes regarding intubation.
Following discovery, the Defendants filed a motion for summary judgment, contending among other things that they were immune from liability based on the March 7 surgical procedure under
The Court of Appeals granted the Defendants’ application for interlocutory appeal and affirmed in relevant part. In Division 1 of its opinion, the Court of Appeals held that the Defendants were not entitled to summary judgment that they had immunity under
(a) In 2007, the General Assembly enacted the statute that contains the Advance Directive Act to replace two prior legislative schemes concerning end-of-life care, seeking to update the law in this area and eliminate inconsistencies and confusion. See Ga. L. 2007, p. 133, § 1 (b); former OCGA §§ 31-32-1 to 31-32-12 (“Living Will Act“); former OCGA §§ 31-36-1 to 31-36-13 (“Durable Power of Attorney for Health Care Act“). As the uncodified first section of the 2007 statute explained:
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.
Ga. L. 2007, p. 133, § 1 (a). Thus,
the clear expression of an individual‘s decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families.
Id. § 1 (d). The Advance Directive Act sets forth “general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care.” Id. The statutory advance directive form is found in
(b)
The Act defines “health care” broadly to mean “any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for a declarant‘s physical or mental health or personal care.”
It is the responsibility of the patient or the health care agent to notify the health care provider of the existence of the advance directive and any amendment to or revocation of the directive. See
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
[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.
The health care decision now at issue in this case is the decision that needed to be made on March 7, 2012, about whether Stephenson should be intubated and put on a ventilator to prolong her life. Stephenson was unable to, and clearly did not, make that decision for herself, so Alicea had the authority to make that decision for Stephenson under her Advance Directive, which Alicea had given to the Hospital‘s staff and had discussed with them and with Dr. Catalano. With respect to the duties of “[e]ach health care provider and each other person with whom a health care agent interacts under an advance directive for health care” in this situation, the Act says the following in
A health care decision made by a health care agent in accordance with the terms of an advance directive for health care shall be complied with by every health care provider to whom the decision is communicated,
subject to the health care provider‘s right to administer treatment for the [patient‘s] comfort or alleviation of pain; provided, however, that if the health care provider is unwilling to comply with the health care agent‘s decision, the health care provider shall promptly inform the health care agent who shall then be responsible for arranging for the [patient‘s] transfer to another health care provider. A health care provider who is unwilling to comply with the health care agent‘s decision shall provide reasonably necessary consultation and care in connection with the pending transfer....
Thus, a health care provider in this situation generally must comply with the health care agent‘s decision, with two exceptions. The first, not pertinent here, is as to pain treatment. The second recognizes that the provider may be “unwilling” to comply with the agent‘s decision, on medical, moral, or other grounds. But the unwilling provider is not entitled to then make the health care decision for the patient himself, or to just walk away. The Act requires such a provider to “promptly inform” the agent of his unwillingness to comply and also to “provide reasonably necessary consultation and care” in connection with the transfer of the patient to another care-giver as arranged by the agent — presumably a transfer to a provider (who may be in the same facility) who will comply with the agent‘s decision.
(c) The Advance Directive Act then includes a series of immunity provisions in
[e]ach health care provider, health care facility, and any other person who acts in good faith reliance on any direction or decision by the health care agent ... to the same extent as though such person had interacted directly with the declarant as a fully competent person.
The Act then says:
Without limiting the generality of the foregoing, the following specific provisions shall also govern, protect, and validate the acts of the health care agent and each such health care provider, health care facility, and any other person acting in good faith reliance on such direction or decision:
After the colon come five specific immunity provisions. See
The Defendants contend that subsections
The Court of Appeals rejected this reading of the statute, and so do we. To begin with, as a matter of basic grammar, the text following a colon normally elaborates on the general statement that comes before it, rather than being disassociated from the introductory clause. See William Strunk, Jr. & E.B. White, The Elements of Style (3d ed. 1979) (“A colon tells the reader that what follows is closely related to the preceding clause.“). Moreover, as the Court of Appeals observed, subsection
Thus, we agree with the Court of Appeals that,
[t]aken together, the language, grammar, and structure of
OCGA § 31-32-10 (a) reflect that the requirement of “good faith reliance” on a health care agent‘s direction or decision referenced in the introductory clause was intended to apply to the subsections that follow it, including subsections(a) (2) and(3) pertaining to a failure to comply with an agent‘s direction or decision.
Alicea, 332 Ga. App. at 541. We also agree with the Court of Appeals that “good faith” as used in this context means “a state of mind indicating honesty and lawfulness of purpose [and a] belief that one‘s conduct is not unconscionable or that known circumstances do not require further investigation.” Id. (quoting O‘Heron v. Blaney, 276 Ga. 871, 873 (583 SE2d 834) (2003), and citing Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 753 (251 SE2d 250) (1978)).
The Court of Appeals did not discuss, however, what “reliance” means in this context, turning instead to an analysis of whether the evidence indicates that Dr. Catalano honestly believed that he was complying with Alicea‘s directions when he ordered Stephenson‘s intubation on March 7. Alicea, 332 Ga. App. at 541-542. This approach skips over the preliminary question of reliance.
Recall that a primary purpose of the Advance Directive 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, rather than the will of the health care provider, that controls.
believes a declarant is unable to understand the general nature of the health care procedure which the provider deems necessary... 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.
If a provider is aware of what the agent has decided, and then proceeds as the statute mandates in
3. When we apply these legal principles to the current record in this case, construed in favor of Alicea as the nonmoving party, it is clear that the Defendants were properly denied summary judgment on their immunity claim based on
As discussed above, the Advance Directive Act is all about letting patients and their health care agents, rather than the health care provider, control such decisions. Also reflected in many provisions of the Act is a principle that Dr. Catalano apparently disagreed with — that the patient and her agent may see a real difference between passively allowing her life to slip away and requiring a loved one to make the affirmative decision to “pull the plug” and halt life-sustaining measures like mechanical ventilation so that the patient dies. The record indicates that had Alicea been consulted before the intubation as she had directed, she would not have authorized the procedure.
Because there is at least a disputed issue of fact as to whether Dr. Catalano acted with good faith reliance on any decision made by his patient‘s health care agent, Dr. Catalano cannot on motion for summary judgment claim the immunity that subsections
There is also another straightforward ground for rejecting immunity under subsections
We therefore need not decide the closer question on which the Court of Appeals based its decision (and on which the parties focus their arguments) — whether there is a sufficient factual dispute about Dr. Catalano‘s understanding of Alicea‘s wishes about intubation to show that he was not acting in “good faith.” The evidence of Dr. Catalano‘s actions and inactions to which the Court of Appeals pointed may well support its ruling on that point. See Alicea, 332 Ga. App. at 542. But given the clear factual dispute about whether he relied at all on any directive from Alicea in acting to order the March 7 intubation, as well as the apparently undisputed evidence that he did not satisfy the “unwilling to comply” and “promptly inform”
For the reasons discussed above, the trial court correctly denied the Defendants’ motion for summary judgment as to their claim of immunity from civil liability under
Judgment affirmed. All the Justices concur.
DECIDED JULY 5, 2016.
Insley & Race, Kevin P. Race, David V. Johnson, Brett A. Tarver, for appellants.
Connor & Connor, Kenneth L. Connor, C. Caleb Connor, Camille Godwin; Nicholson Revell, Harry D. Revell, for appellee.