Hospital Liability for Life-Saving Efforts?

Hospitals are in the business of saving lives.  So they don’t usually face liability for trying to do just that.  But a July 5 Georgia Supreme Court decision is a reminder that it’s up to the patient—not the hospital or doctor—to decide whether to undergo life-saving efforts, and defying the patient’s wishes is risky.

Because the case was an appeal of denial of a defense motion for summary judgment, the court viewed the evidence in the light most favorable to the plaintiff.  Viewed that way, the facts looked like this: Ninety-one-year-old Bucilla Stephenson had executed an Advance Directive appointing granddaughter Jacqueline Alicea as her health care agent and checking the “Choice NOT to Prolong Life” box on the form.  When Bucilla was admitted to Doctors Hospital, Jacqueline gave the hospital the Advance Directive form and all her own contact information.

She told Dr. Catalano that CPR was not to be administered and heroic measures were not to be taken to prolong Bucilla’s life.  She told Dr. Joseph that Bucilla was not to be intubated or put on a ventilator unless she—Jacqueline—was called first.  But a week later Dr. Catalano did both those things without informing her.

Dr. Behnia then told Jacqueline that extubating Bucilla and taking her off the ventilator would cause her to suffocate and die and that the only other option was surgery to clean her lung.  Jacqueline consented to that option.  About a week later, with Bucilla’s kidneys shutting down, Jacqueline accepted Dr. Behnia’s recommendation that Bucilla be taken off the ventilator.  Three days later she died.

Jacqueline, as executrix, sued the Dr. Catalano and the hospital, alleging breach of agreement, professional and ordinary negligence, medical battery, intentional infliction of emotional distress, and breach of fiduciary duty.  The defendants moved for summary judgment on the grounds that the Georgia Advance Directive Act (O.C.G.A. § 31-32-10(a)) gave them immunity.   The trial court denied the motion, and court of appeals affirmed.

The defendants’ position was that subsections (a)(2) and (3) gave them immunity.  On certiorari from the court of appeals’ decision, the Supreme Court observed that both immunity subsections are conditioned by the introductory language of section (a) requiring that in order to have immunity, a person must have acted “in good faith reliance on any direction or decision by the health care agent.”  What’s more, both subsections require that providers to inform the agent that they are unwilling to comply with a directive and that they take certain steps until the patient can be transferred to another provider.

The Supreme Court said, “Although there is evidence to the contrary, there is ample evidence that in ordering that [intubation and ventilation] procedure, Dr. Catalano was not acting in good faith reliance – in honest dependence – on any decision [Jacqueline] had made as [Bucilla's] health care agent, either to comply with it or to refuse or fail to comply with it and then promptly inform [Jacqueline] of his unwillingness.”  So the denial of the defendants’ motion for summary judgment on the statutory immunity defense was affirmed, leaving a jury to “decide the disputed factual issues at trial.”

The case is Doctors Hospital of Augusta v. Alicea, No. S15G1571 (Ga., July 5, 2016).

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