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Doctors Hosp. of Augusta, LLC v. Alicea

Court of Appeals of Georgia

June 17, 2015

DOCTORS HOSPITAL OF AUGUSTA, LLC et al.
v.
ALICEA

Page 115

Cert. applied for.

Health care advance directive. Richmond Superior Court. Before Judge Annis.

Insley & Race, Kevin P. Race, David V. Johnson, Brett A. Tarver, for appellants.

Nicholson Revell, Harry D. Revell; Connor & Connor, Kenneth L. Connor, C. Caleb Connor, for appellee.

BARNES, Presiding Judge. Ray and McMillian, JJ., concur.

OPINION

Page 116

Barnes, Presiding Judge.

This appeal raises questions pertaining to the immunity of health care providers and facilities under the Georgia Advance Directive for Health Care Act, OCGA § 31-32-1 et seq. (" Advance Directive Act" ) and to the law of informed and basic consent. The plaintiff, as administrator of the estate of her grandmother, sued Doctors Hospital of Augusta, LLC and Dr. Phillip William Catalano (collectively, the " Defendants" ), alleging that they intubated the plaintiff's grandmother and placed her on mechanical ventilation, which prolonged her life when she was in a terminal condition and caused her unnecessary pain and suffering, contrary to the grandmother's advance directive and the specific directions of her designated health care agent. The plaintiff asserted claims for, among other things, medical malpractice for lack of informed consent and medical battery for lack of basic consent.

The Defendants moved for summary judgment, contending that the uncontroverted evidence showed that they were immune from liability for intubating the grandmother on March 7, 2012 based on OCGA § 31-32-10 (a) (2) and (3) of the Advance Directive Act; that they obtained informed consent for a March 5, 2012 surgical procedure [332 Ga.App. 530] performed on the grandmother; and that they obtained basic consent for the March 5 procedure and March 7 intubation. The trial court denied summary judgment to the Defendants on these claims.

For the reasons discussed below, we affirm the trial court's denial of the Defendants' motion for summary judgment on their defense of statutory immunity and on the plaintiff's medical battery claim for lack of basic consent to the March 7 intubation. However, we reverse the trial court's denial of summary judgment to the Defendants on the plaintiff's claims based on the alleged lack of basic and informed consent relating to the grandmother's March 5 surgical procedure.

Summary judgment is appropriate only if the pleadings and evidence " show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]" OCGA § 9-11-56 (c). We review the denial of summary judgment de novo and view the evidence in the light most favorable to the nonmoving party. Hood v. Todd, 287 Ga. 164, 165 (695 S.E.2d 31) (2010). Guided by these principles, we turn to the record in the present case.

Stephenson's Advance Directive for Health Care.

In November 2009, Bucilla C. Stephenson executed an advance directive for health care (the " Advance Directive" ).[1] In her Advance Directive, Stephenson designated Jacqueline Alicea, her granddaughter with whom she lived, as her health care agent if she became " incapable of making [her] own decisions." She granted Alicea the unlimited authority " to make all health-care decisions for [her], including decisions to provide, withhold, or withdraw artificial hydration and nutrition, and all other forms of health care to keep [her] alive." Alicea was authorized to consent or refuse consent to any medical treatment or procedure and to direct the withholding of cardiopulmonary resuscitation (" CPR" ) and other forms of health care.

Additionally, in her Advance Directive, Stephenson instructed her health care providers and others involved in her care not to prolong her life under the following circumstances: (1) when she had an incurable and irreversible condition that would result in her death within a relatively short period of time; (2) when she became unconscious and, to a reasonable degree of medical certainty, would not regain consciousness; or (3) when the likely risks and burdens of treatment outweighed the expected benefits. The Advance

Page 117

Directive did not specifically list or define the medical technology that Stephenson [332 Ga.App. 531] did or did not desire to be used as part of her medical care. But Stephenson informed her family members that she did not want to be kept alive " on any machines" at the hospital, including a ventilator, if her condition was terminal.

Stephenson's Admission to Doctors Hospital.

In late February 2012, Stephenson, then 91 years old, developed a persistent cough. On the morning of March 3, 2012, Stephenson awoke lethargic and " not very responsive," and she lost consciousness and bowel control when Alicea was bathing her. Alarmed by Stephenson's condition, Alicea and her husband drove Stephenson to the Doctors Hospital emergency room.

Upon arrival at the emergency room, Stephenson was disoriented and unable to complete a sentence because of her shortness of breath. Stephenson was examined in the emergency room and subsequently was admitted to Doctors Hospital after her blood work and a chest x-ray showed that she was suffering from pneumonia, sepsis, and acute renal failure.

Alicea provided the hospital with a copy of Stephenson's Advance Directive and her contact information so that she could be consulted about Stephenson's care if she were away from the hospital. Hospital policy required that upon admission to the hospital, a copy of a patient's advance directive be placed in the front of the medical record behind the admission tab to ensure that it was readily available to all physicians and hospital staff. A copy of Stephenson's Advance Directive was placed in her medical record, but not behind the admission tab where it could easily be seen and reviewed.

Alicea's Communications to the Physicians.

On the morning following Stephenson's admission, Alicea was at home preparing to return to the hospital when she received a phone call from Dr. Catalano, a thoracic and cardiovascular surgeon with staff privileges at Doctors Hospital. Dr. Catalano informed Alicea that Stephenson was being moved to the intensive care unit (" ICU" ) where he would be treating her and that he planned to perform a computed tomography (" CT" ) scan to better assess her condition. During the phone call, Alicea told Dr. Catalano about Stephenson's Advance Directive and specifically instructed that no CPR should ever be administered and " no heroic measures" employed.

The CT scan performed on March 4 showed that the pneumonia was causing a build-up of fluid around Stephenson's lung that was displacing her heart. Around 2:30 p.m. that same day, Alicea received a phone call from Dr. Carmel Joseph, an ICU physician, who wanted to perform a thoracentesis, a therapeutic procedure that involved inserting a tube into Stephenson's chest to drain the fluid around the lung. Alicea consented to the thoracentesis during the phone call.

[332 Ga.App. 532] Repeating what she told Dr. Catalano earlier that day, Alicea informed Dr. Joseph during their phone call that although she was consenting to the thoracentesis, Stephenson wanted no " heroic measures" to prolong her life and that there was to be no CPR because she feared that Stephenson would be injured during chest compressions. Alicea also specifically directed Dr. Joseph that no intubation be performed or mechanical ventilation be used on Stephenson without first calling her for permission.[2] Under hospital policy, any discussions between a physician and family members regarding an advance directive were to be documented in the progress notes on the patient's medical chart. Pursuant to that policy, Dr. Joseph made two notations in his March 4 progress note that Stephenson was " no CPR" and that Alicea was to be called " before patient is intubated."

After his phone call with Alicea, Dr. Joseph performed the thoracentesis, which revealed pockets of pus within Stephenson's chest cavity outside of her lungs. Concerned that Stephenson faced an imminent risk of death from overwhelming infection in her chest cavity, the physicians involved in Stephenson's care agreed that Dr. Catalano would consult with Stephenson's family about

Page 118

performing an additional surgical procedure to ...


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