On July 5, 2016, in Doctor’s Hospital of Augusta v. Alicea, the Georgia Supreme Court issued an opinion involving the interpretation and application of the Georgia Advance Directive for Health Care. The opinion is interesting in part because we have so little judicial analysis or opinion on the Georgia Advance Directive for Health Care. While the language in the document itself and the concepts involved in its execution and application appear straightforward, end of life decisions are rarely so neat and simple. In this opinion the Court clearly affirmed the patient’s right, even if through a health-care agent, to choose a course of treatment.
For purposes of this blog post we need not delve deeply into the procedural posture or specific legal technicalities of the case. Instead we will discuss the Georgia Advance Directive for Health Care generally, summarize the facts, the judges’ opinion, and what Georgia residents and health-care providers can take away from the case.
Georgia Advance Directive for Health Care
Prior to 2007, the State of Georgia had two separate documents that people used to choose a health care decision-maker and to express their own preferences about how they would be cared for if they were not able to communicate. In 2007, lawmakers combined the “Living Will” and “Health Care Power of Attorney” into one document, the “Advance Directive for Health Care”. The Georgia statutory form can be found at O.C.G.A. § 31-32-4. The purpose of the new document was to reduce confusion by having only one document that incorporated aspects from both of the previous documents. The Advance Directive allows Georgia residents to select the individual they want to make health-care decisions for them and express their personal preferences about specific aspects of their care. Most significantly, the Advance Directive allows patients to specify whether they wish to have their life prolonged by artificial means.
Ninety-one-year-old Bucilla Stephenson had executed an Advance Directive for Health Care appointing granddaughter, Jacqueline Alicea, as her health-care care agent. Ms. Stephenson indicated in her Advance Directive for Health Care and also expressed to Ms. Alicea and other family members that she did not wish to have her life prolonged by artificial means or treatment. Later, when Ms. Stephenson was admitted to Doctors Hospital, her grandaughter gave the hospital the Advance Directive form and her own contact information. She also expressly instructed the treating physician not to perform CPR or employ any other heroic measure to prolong Ms. Stephenson’s life. She also instructed that she was to be called before Ms. Stephenson’s was intubated or placed on a ventilator.
About a week later, without contacting Ms. Alicea as instructed, the physician intubated Ms. Stephenson and placed her on a ventilator to save her life. A week later, after another procedure to clean out Ms. Stephenson’s lung, Ms. Alicea consented to the doctor’s recommendation to take her grandmother off the ventilator, and Ms. Stephenson died.
Ms. Alicea later filed a lawsuit against the hospital and the physician alleging that Ms. Stephenson was caused unnecessary pain and suffering, contrary to the wishes she expressed in her Advance Directive for Health Care and the specific directions of Ms. Alicea, her designated health care agent. The defendants filed a motion for summary judgment, alleging they were immune from civil prosecution because they were protected by the immunity provisions in the Advanced Directive Act.
The Court held that the immunity provisions in the Advanced Directive Act are predicated on a health-care provider making a good faith effort to follow the patient’s wishes. If the health-care provider cannot follow the patient’s direction, the provider must inform the patient and cooperate in facilitating a transfer to a different health care provider. In this case, the defendant did not make a good-faith effort to follow the patient’s wishes.
1. The Court clearly and unequivocally affirmed the patient’s right to choose their own course of treatment, observing that a guiding principle in the creation of the Advance Directive is to ensure that in making health-care decisions, “it is the will of the patient or her designated agent, not the will of the health-care provider, that controls.”
2. It is the responsibility of the patient or agent to make sure the health-care provider has a copy of the Advance Directive. Once provided a copy of the Advance Directive, the health-care provider must make it a part of the patient’s record or file.
3. With respect to end of life care or treatment, the health care agent’s directions prevail over the patient’s written instructions in the Advance Directive.
4. The health-care agent has priority over everyone, including a court-appointed guardian, in making health care decisions covered by the Advance Directive
5. Health-care providers must now follow the patient’s or agent’s wishes or risk liability. However, if the care providers do follow the patient’s or agent’s wishes, they will enjoy express statutory protection from liability.