Aрpellants, in their individual capacities “as next of kin and only heirs of Ed Echols, Deceased,” instituted the instant wrongful death action against appellee-Dr. Spivey and the nursing home in which Mr. Echols resided until a short time before his death. As against Dr. Spivey, the appellants’ complaint alleged that Mr. Echols’ death was the proximate result of medical malpractice. The asserted malpractice was Dr. Spivey’s failure to diagnose and treat Mr. Echols for renal failure and cancer of the prostate, the conditions alleged to have led ultimately to his death. Dr. Spivey answered and denied the material allegations of appellants’ complaint.
After discovery, Dr. Spivey moved for summary judgment and supported the motion with his own affidavit. The relevant averments of Dr. Spivey’s affidavit were as follows: He was aware of Mr. Echols’ symptoms which were indicative of cancer and had suspected “a malignanсy in the uninary tract, most probably in the bladder or prostate.” “On more than one occasion,” Dr. Spivey voiced his suspicions to Mr. Echols and recommended a referral “to a urologist or other specialist for appropriate tests to determine whether he had cancer.” Mr. Echols’ reply was “that he did not want to be referred to a specialist and that he did not want to have any diagnostic tests respecting the suspected cancer.” “ [F]or several reasons,” Dr. Spivey deviated from his “customary practice to involve members of a patient’s family when the patient indicates that he dоes not desire treatment for a known condition or declines to have diagnostic tests or be referred to a specialist.” The first of those reasons was that “Mr. Echols was lucid and, in [Dr. Spivey’s] opinion, entirely capable of making a rational decision to decline treatment. Second, Mr. Echols had nо wife or children. His other relatives had never, to [Dr. Spivey’s] knowledge, visited him ...” With specific reference to Mr. Echols’ kidney condition, it was Dr. Spivey’s medical opinion that “[t]here was nothing which could be done ... outside of seeing to it that he had an adequate intake of fluids,” as Mr. Echols was not “a good candidate for renal dialysis because of his advanced age and because of the other medical problems he had.” It was the final conclusion of Dr. Spivey that, in his own medical opinion, “in all the medical services which [he] performed for Mr. Echols, [he] exercised at least as high a degree of carе, skill and diligence as would ordinarily be employed by members of the medical profession generally under similar conditions and like circumstances, and that [he] was never negligent in any way or manner in connection with any of the services that [he] rendered to Mr. Echols.”
*752 In opposition to Dr. Spivey’s motion, apрellants submitted, along with other evidence, another physician’s affidavit. It was the expert medical opinion of appellants’ affiant that Dr. Spivey’s failure to conduct a “thorough, urological work-up to permit proper diagnosis and timely treatment” of Mr. Echols or to “refer Mr. Echols to a urologist or other specialist for appropriate tests to determine the nature of his disease” was “negligent and was not an exercise of the proper care, skill and diligence as would ordinarily be employed by members of the medical profession generally under similar circumstances and like conditions.” With specific regard to Dr. Spivey’s contention that he had recommended, but that Mr. Echols had refused, referral to a specialist for diagnostic testing, appellants’ affiant stated: “If this did occur as Dr. Spivey testified in his affidavit it is my opinion that it would be the accepted standard in the medical professiоn generally to place this conversation and/or the recommendations in the hospital records and/or to discuss Mr. Echols’ alleged refusal of this treatment with a responsible member of his family and to note such discussion in the medical record. Dr. Spivey’s obvious decision not to do that does not follow in my оpinion the degree of care, skill and diligence as would ordinarily be used or employed by members of the medical profession generally under similar conditions and like circumstances. Failure to make a notation of such an important event as refusal of necessary treatment casts doubt upоn Dr. Spivey’s contention that it did in fact occur.”
On this evidence, Dr. Spivey’s motion for summary judgment was heard by the trial court. Thereafter an order granting the motion was entered. It is from that order that appellants bring the instant appeal.
1. Dr. Spivey first asserts that his motion for summary judgment was properly granted because appellants, as the “next of kin and only heirs of Ed Echols, Deceased,” have no capacity and standing to bring the instant wrongful death action. It appears that this issue was not raised in the trial court. Thus, it “could not properly have been the basis for a grant of summary judgment in this case.”
Parker v. Centrum Intl. Film Corp.,
2. Dr. Spivey contends that summary judgment wаs properly granted when the allegations of his alleged negligence are viewed against the “right of a person 18 years of age or over to refuse to consent to medical and surgical treatment as to his own person.” OCGA § 31-9-7 (Code Ann. § 88-2907). “[A] competent adult has the right to refuse necessary lifesaving surgery and medical treatment (i.e., has the right to die) where no state interest other than saving the life of the patient is involved. [Cit.]”
Jefferson v. Griffin Spalding
*753
County Hosp. Auth.,
A lucid adult has the right to withhold his consent to suggested and recommended medical procedures and, absent such consent, a physician owes no further duty to his patient in that regard other than to honor the decision. A patient, “by virtue of his right of privacy, can refuse to allow intrusions on his person, even though calculated to preserve his life.”
Zant v. Prevatte,
However, the question yet remains whether it has been established as a matter of law that Dr. Spivey did in fact inform Mr. Echols of the recommendation that he undergo diagnosis for possible cancer of the prostate and that Mr. Echols refused this recommendation. Appellants’ affiant could not, of course, specifically controvert Dr. Spivey’s assertions in that regard. Since we have held that, under the circumstances, no one other than Mr. Echols had a right to be informed or consulted with regard to his medical treatment, no one other than Mr. Echols would be in a position to deny specifically that he had been apprised of his need for diagnostic treatment by Dr. Spivey. What appellants’ affiant did attеmpt was to attack the credibility of Dr. Spivey’s contention that he had informed Mr. Echols of the suspected cancer. This was done though the affiant’s assertion that the lack of corroborative evidence in this regard in Mr. Echols’ medical records signifies a breach of professional standards and “cаsts doubt on Dr. Spivey’s contention” that Mr. Echols was informed of his suspected cancer. That the accepted standard medical practice was to include a notation in the records of a patient refusing recommended treatment and that such a notation did not appear in Mr. Echols’ reсords was not controverted by Dr. Spivey. Thus, the question becomes whether, under this state of the record, Dr. Spivey’s testimony that he advised Mr. Echols to have diagnostic treatment is unimpeached.
“The interest of a witness in the result of the suit, especially where he is a party, may always be considered in passing on his
*754
сredibility; and, although he may not be contradicted by any other witness, but there are circumstances inconsistent with the truth of his testimony, the jury are not obliged to believe him.”
McRae v. Wilby,
Under these circumstances, we find that a genuine issue of material fact remains in the case as to credibility of Dr. Spivey’s testimony regarding Mr. Echols’ apprisal and refusal of medical treatment for cancer. “ ‘Implications inconsistеnt with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain as an issue of fact despite uncontradicted evidence in regard thereto.’ [Cit.]”
Chaffin v. Community Loan &c. Co.,
3. Dr. Spivey asserts, however, that even if genuine issues of material fact remain regarding his alleged negligent failure to diagnosе and treat Mr. Echols for prostate cancer, summary judgment was nevertheless properly granted. He asserts that the question of whether his negligence in this regard was the proximate cause of Mr. Echols’ death has been eliminated from the case and that summary judgment was thus properly granted on that basis.
We nоte at the outset that no genuine issue of material fact remains in the case regarding Dr. Spivey’s alleged negligent treatment of Mr. Echols’ kidney condition. As noted above, Dr. Spivey’s affidavit stated that he was doing everything that could be done with reference to that condition and that it was his medical opinion thаt he was not negligent in connection with his treatment of Mr. Echols. Appellants offered nothing to controvert this evidence, the affidavit of their expert relating solely to the issue of Dr. Spivey’s failure to diagnose and treat Mr. Echols for prostate cancer. Accordingly, the sole issue remaining for resolutiоn in the case is whether Dr. Spivey’s alleged negligent treatment of Mr. Echols for prostate cancer has been eliminated as a proximate cause of Mr. Echols’ death.
In this regard, Dr. Spivey relies upon the deposition testimony of another doctor who subsequently did diagnose and treat Mr. Echols for prоstate cancer and who was Mr. Echols’ attending physician at the time of his death. It was the medical opinion of this physician that Mr. Echols died from his kidney condition. However, Dr. Spivey’s purported negligent treatment of Mr. Echols’ prostate cancer is not necessarily eliminated as a proximate cаuse of his death from his kidney condition in the absence of evidence which would establish as a matter of law that Dr. Spivey’s asserted negligent failure to diagnose and treat Mr. Echols for cancer did not aggravate his kidney condition. See generally
Nat. Dairy Products Corp. v. Durham,
We find that such uncontroverted evidence eliminating Dr. Spivey’s аsserted negligence with regard to Mr. Echols’ cancer treatment as a proximate cause of death from kidney failure exists in the instant case. The medical opinion of Mr. Echols’ final attending physician was as follows: “I don’t think anybody could [have] *756 changed [Mr. Echols’] course by treating his cancer of the рrostate, [be] cause it wasn’t that bad, in terms of the tests that we get and clinical manifestations.” The deponent also testified that he “wouldn’t think that [Mr. Echols’ prostate cancer] shortened” his life but that in fact the treatment of that condition might have “added to his morbidity ...” The entirety of the deponent’s expert medical testimоny demonstrates that the absence of previous diagnosis and treatment for prostate cancer played no part in Mr. Echols’ death.
No evidence for appellants controverts the expert medical testimony that the physical condition that Dr. Spivey allegedly negligently failed to diagnose and treat, prostate cancer, was not in fact a contributing causal factor in the death upon which appellants’ claim is premised. Appellants’ affiant only offered his expert opinion that Dr. Spivey was negligent in failing to diagnose and treat Mr. Echols for prostate cancer. Therе was no opinion offered that Dr. Spivey’s alleged negligence in this regard was a proximate cause in Mr. Echols’ death. Thus, although there remained a genuine issue of material fact regarding Dr. Spivey’s alleged negligence in failing to diagnose and treat Mr. Echols for prostate cancer as discussed in Division 2, it is clear that Dr. Spivey’s evidence pierced the pleadings as to proximate cause which was another essential element of appellants’ cause of action. “No matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable.”
McKinney v. Burke,
Judgment affirmed.