CopyCited 7 times | Published | Supreme Court of Georgia | Jul 5, 2016 | 788 S.E.2d 392
...ion 1 of its opinion, although we
conclude that the court skipped over one important point. The correct analysis
makes it even clearer, however, that the Defendants were not entitled to
summary judgment based on their claim of immunity under OCGA §
31-32-10
(a) (2) and (3), and we therefore affirm the Court of Appeals’ judgment as to
that issue....
...Catalano’s attention to Stephenson’s Advance Directive and
the notation in the progress notes regarding intubation.
Following discovery, the Defendants filed a motion for summary
judgment, contending among other things that they were immune from liability
based on the March 7 surgical procedure under OCGA §
31-32-10 (a) (2) and
(3).5 On May 20, 2014, the trial court denied summary judgment on that issue,
but granted the Defendants a certificate of immediate review.6
The Court of Appeals granted the Defendants’ application for
5...
...13
interlocutory appeal and affirmed in relevant part. In Division 1 of its opinion,
the Court of Appeals held that the Defendants were not entitled to summary
judgment that they had immunity under §
31-32-10 (a) (2) and (3) for the failure
to comply with Alicea’s direction to contact her and obtain permission before
intubating Stephenson and placing her on a ventilator on March 7, 2012....
...We express no opinion on any of those
issues.
14
reliance” on the designated health care agent’s directions and decisions in order
to qualify for the immunity from civil liability provided in OCGA §
31-32-10
(a) (2) and (3). Our rejection of this argument depends in part on our
understanding of the Act’s overall purpose and operation, so we will outline
those features before turning to a detailed examination of §
31-32-10 (a).
(a) In 2007, the General Assembly enacted the statute that
contains the Advanced Directive Act to replace two prior legislative schemes
concerning end-of-life care, seeking to update the law in this area and eliminate
inconsistencies and confusion....
...s arranged by the agent –
presumably a transfer to a provider (who may be in the same facility) who will
comply with the agent’s decision.
(c) The Advance Directive Act then includes a series of immunity
provisions in OCGA §
31-32-10. The Defendants seek to rely on §
31-32-10
(a), and in particular on subsections (a) (2) and (3).10
10
Subsections (b) and (c) of OCGA §
31-32-10 relate to immunity from civil and criminal
liability and professional discipline involving the patient’s instructions concerning the withholding
21
OCGA §
31-32-10 (a) begins with a general release of liability for
[e]ach health care provider, health care facility, and any other
person who acts in good faith reliance on any direction or decision
by the health care agent ....
...of the health care agent and each such health care provider, health
care facility, and any other person acting in good faith reliance on
such direction or decision: . . . .
After the colon come five specific immunity provisions. See OCGA §
31-32-10
(a) (1)-(5).11
or withdrawal of life-sustaining procedures, nourishment, or hydration as discussed in §
31-32-9.
Subsection (d) addresses the immunity of witnesses to an advance directive, and subsection (e)
specifies that immunity is...
...Corresponding to the first clause of §
31-32-8 (2), which
requires that “[a] health care decision made by a health care agent in accordance
with the terms of an advance directive for health care shall be complied with by
every health care provider to whom the decision is communicated,” §
31-32-10
(a) (1) grants providers immunity from civil or criminal liability or professional
discipline “solely for complying with any direction or decision by the health
decision by the health care agent....
...23
care agent, even if death or injury to the declarant ensues.” And corresponding
to the proviso in §
31-32-8 (2) for health care providers who are “unwilling to
comply with the health care agent’s decision,” §
31-32-10 (a) (2) and (3) give
such providers similarly broad immunity – so long as they promptly inform the
agent of the “refusal or failure” to comply with the agent’s direction or decision
and assist with the patient’s continued car...
...ral compliance
duty in §
31-32-8 (2) – so a separate link to the introductory clause was not
needed. Indeed, to reiterate that only health care providers who act in good faith
reliance on the agent’s directions are entitled to immunity under §
31-32-10 (a),
the introductory clause speaks of “each such health care provider ....
...s, “[e]ach
health care provider who acts in good faith reliance on any direction or decision
by the health care agent.”
Thus, we agree with the Court of Appeals that,
[t]aken together, the language, grammar, and structure of OCGA §
31-32-10 (a) reflect that the requirement of “good faith reliance” on
a health care agent’s direction or decision referenced in the
introductory clause was intended to apply to the subsections that
follow it, includin...
...OCGA
§
31-32-8 (2) plainly authorizes a health care provider to make no effort to
comply with an agent’s direction – to refuse or fail entirely to comply – so long
as the provider promptly informs the agent of that choice and takes the other
steps of care and cooperation that the Act requires. And OCGA §
31-32-10 (a)
(2) and (3) give such a provider immunity for doing just what the statute allows
him to do....
...as decided, and then proceeds as the
statute mandates in §
31-32-8 (2) – either by complying with that decision or by
taking the steps required when he is unwilling to comply with the decision –
then he may look to the immunity provisions in §
31-32-10 (a) for protection.
But a provider cannot claim this immunity when his action was not based in
good faith on the agent’s direction, just because the decision he made for the
28
patient happen...
...Put another way, when the health care provider
makes the patient’s health care decisions on his own, without relying in good
faith on what the patient’s agent directed, the provider must defend his actions
without the immunity given in OCGA §
31-32-10 (a).
3. When we apply these legal principles to the current record in this
case, construed in favor of Alicea as the non-moving party, it is clear that the
Defendants were properly denied summary judgment on their immunity claim
based on OCGA §
31-32-10 (a) (2) and (3)....
...without reliance on Alicea’s directions may subject them to liability.
For the reasons discussed above, the trial court correctly denied the
Defendants’ motion for summary judgment as to their claim of immunity from
civil liability under OCGA §
31-32-10 (a) (2) and (3), and the Court of Appeals
correctly affirmed that ruling.
Judgment affirmed....
CopyCited 5 times | Published | Supreme Court of Georgia | Mar 11, 1996 | 266 Ga. 374, 96 Fulton County D. Rep. 966
...Cornwell had executed a living will under the provisions of OCGA §
31-32-1 et seq., or as if they held a health care power of attorney under the provisions of OCGA §
31-36-1 et seq. The appellants further contend that such conduct would violate the criminal provisions of OCGA §
31-32-10 and OCGA § 31-36-9(2), subjecting the Shumates to disinheritance under § 53-4-6. In this regard, §
31-32-10 provides in relevant part that [a]ny person who falsifies or forges the living will of another ......
...Section 31-36-9(2) contains a similar provision concerning a person who falsifies or forges a health care agency. We find that the trial court properly granted summary judgment as to these contentions. First, by basing criminal liability upon the act of falsifying or forging a living will or health care agency, both §
31-32-10 and § 31-36-9(2) clearly contemplate that a written, but forged or falsified, living will or health care agency must be the cause of the withholding of life-sustaining procedures....
