An Advance Directive: the Elective, Effective Way to Be Protective of Your Rights

JurisdictionUnited States,Federal,Georgia
Publication year2017
CitationVol. 68 No. 2

An Advance Directive: The Elective, Effective Way to Be Protective of Your Rights

Krysta Rae Tate

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An Advance Directive: The Elective, Effective Way to Be Protective of Your Rights*

I. Introduction

Death is an eternal theme within all cultures; the Grim Reaper coming to collect a person's soul, death riding in on a pale horse, mythical characters like Hades and Thanatos. A seemingly inescapable proposition emerged over time: the nature of death is unpredictable and unavoidable. Eventually, due to changes in technology, the world's perspective on the nature of death shifted. Advancements in medical technology introduced a plethora of life-sustaining procedures, and death was no longer completely beyond a human's control.

A breakthrough in the medical means used to control the dynamic nature of death occurred when the Georgia General Assembly enacted the Georgia Advance Directive for Health Care Act (the Act)1 in 2007. The Act created a single form, the advance directive, and resolved the inconsistencies between the living will and the durable power of attorney for health care.2 The resolutions contained in the advance directive served two goals: to clarify the role of the medical providers and to give greater power to patients to have the ultimate decision making power in their medical treatment.3

Along with these two goals, the Act also intended to provide a straightforward mechanism to transfer the decision making power of the patient

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to a health care agent, while ensuring the power would still have the full effect as if the patient were still the one making decisions. As one of the first cases in Georgia to consider the reach of the Act, Doctors Hospital of Augusta v. Alicea4 defined what is required of a health care provider who fails, or is unwilling, to comply with a health care agent's directions to qualify for immunity from civil liability under the Act's good faith reliance standard.5

II. Factual Background

Bucilla Stephenson executed an advance directive for health care (advance directive) on November 12, 2009, two years before being admitted to the hospital for her final illness. The advance directive designated Stephenson's granddaughter, Jacqueline Alicea, as her health care agent. As an agent, Alicea was authorized to make all health care decisions for Stephenson, if Stephenson became incapable of making her own decisions. This authority also allowed Alicea to make decisions regarding providing, withholding, or withdrawing artificial nutrition and hydration, and all other forms of health care. Alicea's decisions were required to be in accordance with the instructions Stephenson documented in the advance directive and Stephenson's other wishes to the extent known to Alicea.6 Stephenson notified Alicea and other members of her family that her wish was to not be kept alive on a machine if her condition was terminal.7 Specifically, Stephenson expressed "'she was ready to go when the good Lord called her,' and often repeated, 'when it's my time, it's my time, don't prolong it.'"8

In the advance directive section addressing "end-of-life decisions," Stephenson initialed:

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

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medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits.9

Stephenson was admitted to the hospital on March 3, 2012. Alicea gave her contact information and a copy of Stephenson's advance directive to the hospital as Stephenson was admitted. Upon filing, the advance directive was not placed behind the admission tab of Stephenson's medical record as required by hospital policy.10 Instead, the advance directive was misfiled in Stephenson's separate medical chart at the Intensive Care Unit (ICU) main desk.11

The following morning, Dr. Phillip Catalano called Alicea to inform her of his intentions to perform a computed tomography scan (CT scan).12 Alicea agreed and informed Dr. Catalano of Stephenson's advance directive. She specifically instructed cardio-pulmonary resuscitation (CPR) was not to be administered and no heroic measures were to be used to prolong Stephenson's life. Later, Dr. Carmel Joseph called Alicea with the results of the CT scan and for consent on the next step of treatment. Alicea consented to a right chest thoracentesis.13 Again, she expressed her earlier instructions regarding CPR and heroic measures.14 In response, Dr. Joseph asked Alicea about ventilation and she instructed him to call her before Stephenson was intubated or put on a ventilator. Pursuant to the hospital's policy requiring physicians to make notes of any discussions with designated health care agents about an advanced directive, Dr. Joseph made a progress note in Stephenson's medical chart documenting Alicea's instructions.15

Two days after Stephenson's admission, on March 5, Dr. Catalano, who had not read Stephenson's advance directive or the progress note in her medical chart, called Alicea to request consent for a surgical thoracentesis to drain more infection from Stephenson's lung. He explained Stephenson would be under general anesthesia, but he did not explain that the procedure required intubation and the use of a ventilator, nor was Alicea told Stephenson had been intubated and put on a ventilator

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during the surgery. She would not have consented to the surgery had she been informed intubation was required.16

Two days after Stephenson's second procedure, around 5:00 a.m. on March 7, Stephenson began experiencing respiratory distress. Dr. Catalano unilaterally decided, and instructed the on-duty doctor, to intubate Stephenson and put her on a ventilator. This decision was made without reference to the progress note in Stephenson's medical file, without reference to Stephenson's advance directive, and without reference to Stephenson's agent, Alicea. When Alicea learned Stephenson had been intubated and put on a ventilator, she came to the hospital with another copy of the advance directive. The nursing staff finally located the hospital's first copy of the advance directive fifteen to twenty minutes after Alicea's arrival with the new copy.17

Alicea explained to Dr. Mehrdad (Michael) Behnia, the physician in charge of the ICU, that the actions taken that morning were directly contrary to her grandmother's wishes and her own specific instructions to call her before Stephenson was put on a ventilator.18

Dr. Behnia outlined Alicea's two options moving forward: Stephenson could be taken off the ventilator and extubated, which would cause her to suffocate and die, or Stephenson could undergo another thoracentesis. Alicea chose the latter option, consenting to yet another surgical procedure. Throughout the following days, Alicea consented to several more surgical procedures per the recommendations of various hospital employees.19

Seven days after Dr. Catalano's unilateral decision to intubate Stephenson, Dr. Behnia informed Alicea that Stephenson's kidneys were failing and recommended Stephenson be taken off the ventilator. So, Alicea authorized the removal of the ventilator and the provision of comfort measures until Stephenson's death on March 17, 2012.20

Alicea, as administrator of Stephenson's estate, filed a complaint against the hospital and Dr. Catalano (defendants). The defendants filed a motion for summary judgment containing an argument for immunity under Official Code of Georgia Annotated (O.C.G.A.) sections 31-32-10(a)(2) and (3).21 The trial court denied summary judgment based on

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immunity, but granted a certificate of immediate review.22 The court of appeals granted the defendants' application for interlocutory appeal and affirmed, holding that the defendants were not entitled to summary judgment on the basis of immunity under O.C.G.A. §§ 31-32-10(a)(2) and (3).23 The Georgia Supreme Court granted certiorari to review this portion of the court of appeals' decision.24

On review, the supreme court held Dr. Catalano did not act in "good faith reliance" on any direction from Alicea, and he did not satisfy the requirements of a provider who is unwilling to comply to qualify for immunity under O.C.G.A. §§ 31-32-10(a)(2) and (3).25 For that reason, the supreme court affirmed.26

III. Legal Background

A. The Right to Decide

A patient has the right to complete control of his or her person, including control over decisions regarding which medical procedures are performed on him or her.27 The right to decide includes the right to consent to treatment and the right to refuse treatment.28 The nature of the treatment does not affect the patient's right to make decisions regarding the treatment, even decisions that result in death have been consistently upheld.29

B. Legal Approaches to the Right to Decide

Courts use various theories to uphold the patient's right to decide.30 Under the common law doctrine of self-determination, a patient is free from unwanted bodily intrusion.31 Thus, for a treatment to be valid, a

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patient must be fully informed of the medical risks involved and freely consent to a treatment.32

The doctrine of informed consent in Georgia is statutorily defined.33 The statute requires the doctor to inform the patient of the nature and purpose of a procedure, the material risks involved, the likelihood of success, practical alternatives, and the prognosis of the patient's condition if the procedure is rejected.34 The extensive nature of the information required to be divulged reflects the importance of an individual's right to control what happens to his or her own body.35

The Patient Self-Determination Act of 199036 requires healthcare providers to communicate (1) a patient's right to refuse treatment and (2) the healthcare provider's...

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