Ussery v. Children's Healthcare of Atlanta, Inc. ( 2008 )

BERNES, Judge,

concurring specially and fully.

I concur fully with Divisions 1 (a), 1 (c), 2, 3, 4, 5, and 6 of the majority opinion. I concur in the judgment only with respect to Division 1 (b).

While concurring fully with Division 1 (a), I write separately to emphasize that although the Supreme Court of Georgia has pointed out that the propriety of discontinuing life support involves a case-specific inquiry, the Supreme Court nevertheless has delineated the contours of where discontinuance can be considered appropriate. Specifically, Georgia precedent establishes that the consent of an incompetent patient’s family or guardian to the discontinuance of life support is valid if the patient is terminally ill facing imminent death, or if the patient “has no reasonable possibility of regaining cognitive functions.” DeKalb Med. Center v. Hawkins, 288 Ga. App. 840, 843 (1) (655 SE2d 823) (2007). See In re Jane Doe, 262 Ga. 389 (418 SE2d 3) (1992); In re L. H. R., 253 Ga. 439 (321 SE2d 716) (1984). Here, the uncontroverted evidence of record reflects that Ella Ussery had no reasonable possibility of regaining cognitive functions, and so the parental consent to discontinue life support obtained by the hospital was valid under the standard set out in Georgia case law. Accordingly, I agree with the majority that summary judgment was appropriate on the plaintiffs’ intentional tort claim.

Decided January 23, 2008. Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, for appellants. Peters & Monyak, Jonathan C. Peters, Melissa B. Johnson, Hall, Booth, Smith & Slover, John E. Hall, Jr., Jason D. Hergenroether, Terrell W. Benton III, for appellees.

We need not reach the issue of whether the two-physician requirement set forth in In re L. H. R., 253 Ga. at 446, was overruled by In re Jane Doe, 262 Ga. 389. That question should be pretermitted because, as the majority notes, the uncontroverted evidence shows that the decision to discontinue life support for Ella involved the consultation of two other nontreating physicians. For this reason, I concur in judgment only with regard to Division 1 (b).