Doctor’s orders: Follow Georgia advance directives!

by Kurt Schulzke on November 7, 2016

When it comes to following orders, MDs don’t have the best track record. This brings to mind advance directives for health care. They’re touted as estate plan essentials but do they really work? It turns out that their practical impact depends on the willingness of healthcare providers to read and heed what patients write.

In her excellent book, The Nurses, Alexandra Robbins contends that medical personnel pay little attention to advance directives, especially if hovering family members are demanding that grandpa be kept alive. After all, who is more likely to sue? A patient on indefinite life support or a grieving daughter?

The Georgia Supreme Court explored this touchy territory in a 2016 drama featuring very busy medical doctors, a terminally ill nonogenerian patient, a hospital whose advance directives policy was not followed, and a very unhappy granddaughter.

Spoilers: In Doctors Hospital of Augusta v. Alicea (S15G1571, July 5, 2016), the Court held that advance directives and health care agent instructions are mandatory reading for doctors, and that a good faith attempt to follow them is a prerequisite to any immunity for failure to so do under OCGA § 31-32-10. For more details, read on.

In November 2009, Alicea’s grandmother, Bucilla Stephenson, executed an advance directive authorizing Alicea to consent to or refuse any medical treatment for Stephenson. It also specifically warned health care providers not to prolong her life (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.* While the directive did not list specific medical technology, Stephenson told family members that no “machines,” including ventilators, were allowed.

On March 3, 2012, at age 91, Stephenson was admitted to the hospital and diagnosed with pneumonia, sepsis, and acute renal failure. On admission, she was disoriented and marginally responsive. Alicea gave the hospital a copy of the advance directive and the hospital placed it in Stephenson’s medical record.

The next day, March 4, Alicea reminded the treating surgeon, Dr. Catalano, of the advance directive and told him not to administer CPR or other heroic measures. Later the same day, she reiterated these instructions to a Dr. Joseph, adding that neither intubation nor mechanical ventilation should be used. Dr. Joseph duly noted these instructions in Stephenson’s treatment progress notes.

On March 5, Dr. Catalano–who had read neither the progress notes nor the advance directive–called Alicea to get approval to drain fluid from Stephenson’s chest cavity. He did not tell her that intubation would be required. After the procedure, Stephenson was extubated. Later, after Stephenson’s condition worsened,  on March 7 at about 4:50 a.m., Dr. Catalano again ordered Stephenson intubated without informing Alicea or seeking her approval.

When Alicea arrived later that morning, she was faced with choosing between affirmatively removing her grandmother’s life support or allowing it to remain in place. She told the hospital that having forced this choice on her, the hospital would be responsible for Stephenson’s care from that point forward. She remained in the ICU until March 14, when she was disconnected from the ventilator, and died on March 17.

Alicea, as administrator of Stephenson’s estate sued Doctors Hospital, LLC and Dr. Catalano, seeking compensatory and punitive damages, attorneys fees, and expenses of litigation. The defendants moved for summary judgment, arguing that the intubation and ventilation were immune from liability under OCGA § 31-32-10. The trial court disagreed, denying summary judgment because the defendants’ good faith was a disputed question of material fact to be decided at trial. The Georgia Court of Appeals affirmed; the Supreme Court agreed:

[I]t is clear that the Defendants were properly denied summary judgment on their immunity claim . . . The health care decision in question is the decision to intubate Stephenson and put her on a ventilator as a life-prolonging measure around 4:00 a.m on the morning of March 7, 2012. Although there is evidence to the contrary, there is ample evidence that in ordering that procedure, Dr. Catalano was not acting in good faith reliance – in honest dependence – on any decision Alicea had made as Stephenson’s health care agent . . . Instead, the evidence would support a finding that Dr. Catalano made the health care decision himself, in the exercise of his own medical and personal judgment. By his own account, when he directed the on-duty doctor to intubate Stephenson, he was not considering the stuff of advance directives and health care agents . . . he decided himself “what’s right for the patient,” and would check with Alicea later to see if she wanted to . . . “pull the tube out.” Dr. Catalano even rebuffed a nurse’s question about calling Alicea before ordering the intubation, saying that he would call her later “and tell her what happened.”

As discussed above, the Advance Directive Act is all about letting patients and their health care agents, rather than the health care provider, control such decisions. Also reflected in many provisions of the Act is a principle that Dr. Catalano apparently disagreed with – that the patient and her agent may see a real difference between passively allowing her life to slip away and requiring a loved one to make the affirmative decision to “pull the plug” and halt life-sustaining measures like mechanical ventilation so that the patient dies. . .

Because there is at least a disputed issue of fact as to whether Dr. Catalano acted with good faith reliance on any decision made by his patient’s health care agent, Dr. Catalano cannot on motion for summary judgment claim the immunity that subsections (a) (1), (2), and (3) give to providers who honestly depend on such a decision . . .

What about the hospital? Did Dr. Catalano’s disregard of hospital policy and Alicea’s instructions immunize the hospital from liability? To this, the Court answers with a firm “no”:

Likewise, the Hospital points to no evidence that its staff acted based on a decision by Alicea with respect to the March 7 intubation; when Dr. Catalano made the decision himself, the staff simply proceeded based on his directive.

Finally, the Court offered an alternative theory on which the defendant’s summary judgment motion should be denied:

There is also another straightforward ground for rejecting immunity under subsections (a) (2) and (3). . . [T]hose provisions immunize providers who are unwilling to comply with a health care agent’s directive, promptly inform the agent of that unwillingness, and take other steps regarding the patient’s care until a transfer can be effectuated. There is no evidence that Dr. Catalano and the Hospital staff were unwilling to comply with Alicea’s direction regarding intubating Stephenson, much less that they promptly communicated any such unwillingness to Alicea. If anything, the Defendants claim that they believed they were complying with Alicea’s directive, which would invoke immunity under subsection (a) (1).

Bottom line: Doctors and hospitals beware! Georgia takes advance directives and patient health care agents seriously. Every complete estate plan should include include an advance directive but patients or their healthcare agents should communicate clearly with healthcare providers to ensure that directives and agent instructions are followed.

* These instructions in Stephenson’s advance directive require several data-dependent probabilistic judgments–e.g., whether a patient will not regain consciousness “to a reasonable degree of medical certainty,” and whether treatment risks and burdens outweigh expected benefits–that will be discussed in a future blog post. Bayesian data talk incoming!