End-of-Life Directives and Medical Malpractice

Doctors Hosp. of Augusta v. Alicea, — S.E.2d — 2016 WL 3658910 (Ga. 2016)

An elderly person made an advance end-of-life directive, which provided as follows:

“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.”

The person also appointed her granddaughter as her healthcare agent “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 directive also stated that “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 healthcare 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.”

Two years later, the person was hospitalized. While she was experiencing respiratory distress in the early morning hours, her doctor decided to have her intubated and put on a ventilator to prevent her from going into respiratory or cardiac arrest. A nurse asked the doctor if he wanted to call the patient’s granddaughter before ordering the life-prolonging intubation. In response, the doctor said “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.” Later on, the doctor told the on-duty physician that he does not want the patient to die. The doctor’s decision was practically irreversible because taking the patient off the ventilator and having her extubated would have caused her to suffocate and die. As a result, the patient remained alive while suffering for another week.

The patient’s granddaughter sued the doctor and the hospital for medical malpractice.

The patient’s advance end-of-life directive was made pursuant to Georgia’s Advanced Directive Act of 2007, Ga. L. 2007, p. 133, § 1 (the “ADA”). The ADA provides, inter alia, 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” and that “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.” The ADA also gives such providers broad immunity from liability for malpractice when they act in good faith and promptly inform the patient’s agent of their refusal or failure to comply with the agent’s direction or decision and assist with the patient’s transfer to another medical facility. The doctor and the hospital invoked that immunity to obtain summary judgment.

The Georgia Supreme Court ruled in the plaintiff’s favor. Specifically, it held that “a provider cannot claim this immunity when his action was not based in good faith on the agent’s direction, just because the decision he made for the patient happens to be one that arguably complied or failed to comply with what the agent would have decided. Put another way, when the health care provider makes the patient’s health care decisions on his own, without relying in good faith on what the patient’s agent directed, the provider must defend his actions without the immunity.”

This decision squarely aligns with the statutory text and policy.