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Jul 30 15

Shameless Plea for Nomination

by merlin

It’s that time of year again!  The American Bar Association has sent out a call for nominations for the annual Blawg 100 Amici and I am here to shamelessly beg for nominations from my readers.  I know that only a few of you subscribe, but I also know that I have about 800 – 1,000 posts read per day, so I know somebody pays attention to the things I write!

The link is embedded above, and I would love to be included in their list.  If this blawg helps you folks in any way, I am glad to be a source of that assistance, and would appreciate the recognition.

Jul 29 15

A2L Webinar Notes – “Winning Your Case Before Trial Using Persuasive Graphics”

by merlin

A2L Webinar – “Winning Your Case BEFORE Trial Using Persuasive Graphics”

Webinar – July 29, 2015

 

Two-Track Litigation Plan

Juries tend to find two facts very interesting or important, and tend to organize their cases around those two facts.  The lawyer should do the same.

Storytelling for Litigators:

  • REMEMBER: Dealing with HUMAN BEINGS, so tell a story, because SOME STORY will emerge (so better to control the story that does emerge)
  • Scientific Study: Same areas in the brain-scans of subjects (listeners and speakers on same story) light up.
  • Effective storytelling: Use sensory language wherever possible, because the brain does not interpret it as mere NOISE.
  • Engage listener as a PARTICIPANT (not a mere observer) of what you are saying, and do it BEFORE the trial, if possible. You want the story to be consistent for them over the course of the encounter.
  • Don’t tell HOW it happened as much as the WAY it happened.

Must be a VISUAL component as well (studies show vast majority, more than 61%, learns visually)

  • Just relaying information alone is not enough.
  • 2011 Broda-Baum Study: No graphics vs. flipchart vs. static graphics vs. IMMERSIVE graphics (graphics are moving, dynamic)
  • Only the last one provides advantage to retention
  • Not enough to make powerpoint slides and leave it alone
  • Putting everything on slide word-for-word decreases effect of what you are saying (redundancy effect); it actually DECREASES retention and memory
  • Do not use BULLET POINTS (you want to avoid text-heavy stuff)
  • Look at a classic Bill Gates presentation versus a classic Steve Jobs presentation (if users are spending time reading your graphics, not necessarily LISTENING to you); presentation needs to LOOK pricey and well-done, but avoid cost(duh)
  • Professor Edward Tufte (Yale) – study that looked at a mere list of data versus the graphical depiction of same date, presented to NASA for the Challenger disaster; the graphical depiction is MORE PERSUASIVE
  • The presentation showed a timeline they composed versus one their client had done, involving a trademark infringement case, and the VISUAL depiction of the timeline shows the clear infringement, as opposed to the TEXT timeline.
  • They did a VIDEO that was labelled, showing the stuff in PLAIN LANGUAGE (winning with visual evidence)

When they did an information-comparison (powerpoint versus their own version), the PowerPoint was a text-based presentation (ineffective) versus their GRAPHIC version (effective)

 

  • Showing the visual demonstrative:
  1. Tells the other side how much they are going to spend on this case;
  2. Tells the mediator WHO IS GOING TO WIN THE CASE

Tell the story graphically and in a short format!!!

“People will forget what you said, people will forget what you did, but they will never forget how you made them feel.” – Maya Angelou

Jul 27 15

Re-Post (4/15/12 on Temporary Hearings in Divorce Cases)

by merlin

Because the issue has become important again, I have looked at the Uniform Superior Court Rule governing the conduct of temporary hearings (Rule 24.5 – it does not appear to have changed since my entry in April 2012).  The only change that I would make to the entry below is to place significance on a different phrase in subsection (B) – “Except by leave of Court,…” – because there are times when care and custody of a minor child is the ONLY issue relevant, and the minor children might have relevant testimony.

The entry is below:

_________________________________________________

Many people in Georgia, even in relatively ugly divorce cases, choose to represent themselves (they are often convinced that they are as smart as any attorney, but the fact is that there are specialized rules that govern the proper admission and use of evidence and testimony, and even attorneys themselves might be unaware of these rules when they don’t necessarily practice often in a particular area, or they tend to dispose of the matter without need for the procedures that would otherwise be available).  In an action for divorce, the Court will first establish the rights and obligations of the respective parties at a temporary hearing.  It is important to choose the evidence that the Court can/will hear at this hearing carefully, because there are special rules governing that hearing itself, and the hearing sets the standards for the divorce action overall.

Georgia Uniform Superior Superior Court Rule 24.5 gives the following guidelines for this hearing:

(A) At temporary hearings the parties involved and one additional witness for each side may give oral testimony. Additional witnesses must testify by deposition or affidavit unless otherwise ordered by the court. Any affidavit shall be served on opposing counsel at least 24 hours prior to hearing.

(B) Except by leave of court, the minor child/children of the parties shall not be permitted to give oral testimony at temporary hearings; such child/children will be excluded from the courtroom or other place of hearing. When custody is in dispute, if directed by the court, minor child/children of the parties shall be available for consultation with the court. At any such consultation, attorneys for both parties may be in attendance but shall not interrogate such child/children except by express permission from the court. Upon request, the proceedings in chambers shall be recorded.

There are two things that need to be pointed out to the party that is involved in an action for divorce in Georgia, especially when minor children are involved, and I have put both of these topics in italics in the Court Rule above.  The first important issue to note is that the party themselves will have their chance to say something, if they feel that is wise (remember: a party that testifies is guided by their attorney on direct examination, but they are then subject to cross-examination by the other side’s attorney), and they get to support their allegations/contentions with one additional witness.  That additional witness likely ought to provide the testimonial issue that most needs to be addressed in a case by the party, such as a property issue they are fighting over or an issue of child custody during the divorce.

This second point is relevant to the latter phrase I have placed in italics in the Court Rule above: “the minor child/children of the parties shall not be permitted to give oral testimony at temporary hearings”.  This is why it is very important, when the care and custody of minor children is a matter of contention between the parties at a divorce hearing, to make sure that the contentions supporting a party’s views on the child custody issue, or demonstrating the falsity of the contentions of the other party on that issue, are addressed, either by Affidavit (at least, one that isn’t subject to exclusion on the basis of a valid objection) or by use of the additional witness that is permitted under the Rule.

Jul 24 15

Basic Information on Advance Directives for Health Care

by merlin

As a general practitioner, I try to be capable at a wide variety of tasks.  There is an old label for general practitioners like myself: “Jack of all trades; Master of none”.  Changes to the Georgia Probate Code over the past decade have made it increasingly less financially advantageous to attorneys to engage in the practice of drafting and composing testamentary documents (note that this does not hold true for any situation in which those documents are contested, in which it is absolutely to the advantage of any prospective heir or beneficiary to seek an attorney’s assistance) but have made it far easier for non-attorneys to draft the very important testamentary documents that every person should have.

It was with this in mind that I looked into an area of law that I have not examined in a decade or so, and discovered that it had changed significantly since I last did anything involving it: advance healthcare directives.  I had ceased my activity in this area shortly before Georgia revised its statutes to make estate work much simpler for non-lawyers, when it became evident that there was a trend to this activity that would eventually run most lawyers out of the field.  To be clear – an attorney is not necessarily needed for drafting an Advance Directive for Healthcare (the basic document that dictates what rules govern your care when you are unable to respond for yourself), though an attorney is certainly necessary for any disputes that may arise.  If you would like an excellent, step-by-step explanation of this process (with included forms), please look to the online guide to creating an Advance Directive for Healthcare put out by the DHS.

When I did any work at all in this field, this agency relationship was called a “Durable Power of Attorney for Health Care Decisions”, which apparently ceased to apply in 2007.  The rules have changed, but the principle behind these instruments remains the same: when a person is unable to make health-related decisions for themselves, the law provides an instrument whereby they can designate another person to make those decisions for them.

The link I have embedded above puts the following in easier-to-understand terms, but the form for these tools is contained in Section 31-32-4 of the Official Code of Georgia, which reads as follows:

“GEORGIA ADVANCE DIRECTIVE FOR HEALTH CARE

By:                  __                 Date of Birth:                                    

(Print Name)  ______________________________
(Month/Day/Year)___________________________

This advance directive for health care has four parts:

PART ONE HEALTH CARE AGENT. This part allows you to choose someone to make health care decisions for you when you cannot (or do not want to) make health care decisions for yourself. The person you choose is called a health care agent. You may also have your health care agent make decisions for you after your death with respect to an autopsy, organ donation, body donation, and final disposition of your body. You should talk to your health care agent about this important role.

PART TWO TREATMENT PREFERENCES. This part allows you to state your treatment preferences if you have a terminal condition or if you are in a state of permanent unconsciousness. PART TWO will become effective only if you are unable to communicate your treatment preferences. Reasonable and appropriate efforts will be made to communicate with you about your treatment preferences before PART TWO becomes effective. You should talk to your family and others close to you about your treatment preferences.

PART THREE GUARDIANSHIP. This part allows you to nominate a person to be your guardian should one ever be needed.

PART FOUR EFFECTIVENESS AND SIGNATURES. This part requires your signature and the signatures of two witnesses. You must complete PART FOUR if you have filled out any other part of this form.

You may fill out any or all of the first three parts listed above. You must fill out PART FOUR of this form in order for this form to be effective.

You should give a copy of this completed form to people who might need it, such as your health care agent, your family, and your physician. Keep a copy of this completed form at home in a place where it can easily be found if it is needed. Review this completed form periodically to make sure it still reflects your preferences. If your preferences change, complete a new advance directive for health care.

Using this form of advance directive for health care is completely optional. Other forms of advance directives for health care may be used in Georgia.

You may revoke this completed form at any time. This completed form will replace any advance directive for health care, durable power of attorney for health care, health care proxy, or living will that you have completed before completing this form.

PART ONE: HEALTH CARE AGENT

[PART ONE will be effective even if PART TWO is not completed. A physician
or health care provider who is directly involved in your health care may not
serve as your health care agent. If you are married, a future divorce or annulment of your marriage will revoke the selection of your current spouse as your health care agent. If you are not married, a future marriage will revoke the selection of your health care agent unless the person you selected as your health care agent is your new spouse.]

(1) Health Care Agent

I select the following person as my health care agent to make health care
decisions for me:

Name:

Address:

Telephone Numbers:

(Home, Work, and Mobile)

(2) Back-up Health Care Agent

[This section is optional. PART ONE will be effective even if this section is left blank.]

If my health care agent cannot be contacted in a reasonable time period and cannot be located with reasonable efforts or for any reason my health care agent is unavailable or unable or unwilling to act as my health care agent, then I select the following, each to act successively in the order named, as my back-up health care agent(s):

Name:

Address:

Telephone Numbers:

(Home, Work, and Mobile)

Name:

Address:

Telephone Numbers:

(Home, Work, and Mobile)

(3) General Powers of Health Care Agent
My health care agent will make health care decisions for me when I am unable to communicate my health care decisions or I choose to have my health care agent communicate my health care decisions.
My health care agent will have the same authority to make any health care decision that I could make. My health care agent’s authority includes, for
example, the power to:
— Admit me to or discharge me from any hospital, skilled nursing facility, hospice, or other health care facility or service;
— Request, consent to, withhold, or withdraw any type of health care; and
— Contract for any health care facility or service for me, and to obligate me to pay for these services (and my health care agent will not be financially liable for any services or care contracted for me or on my behalf).
My health care agent will be my personal representative for all purposes of federal or state law related to privacy of medical records (including the Health Insurance Portability and Accountability Act of 1996) and will have
the same access to my medical records that I have and can disclose the contents of my medical records to others for my ongoing health care. My health care agent may accompany me in an ambulance or air ambulance if in the opinion of the ambulance personnel protocol permits a passenger and my health care agent may visit or consult with me in person while I am in a hospital, skilled nursing facility, hospice, or other health care facility or service if its protocol permits visitation.
My health care agent may present a copy of this advance directive for health care in lieu of the original and the copy will have the same meaning and effect as the original.
I understand that under Georgia law:
— My health care agent may refuse to act as my health care agent;
— A court can take away the powers of my health care agent if it finds that my health care agent is not acting properly; and
— My health care agent does not have the power to make health care decisions for me regarding psychosurgery, sterilization, or treatment or involuntary hospitalization for mental or emotional illness, developmental disability, or addictive disease.

(4) Guidance for Health Care Agent
When making health care decisions for me, my health care agent should think about what action would be consistent with past conversations we have had, my treatment preferences as expressed in PART TWO (if I have filled out PART TWO), my religious and other beliefs and values, and how I have handled medical and other important issues in the past. If what I would decide is still unclear, then my health care agent should make decisions for me that my health care agent believes are in my best interest, considering the benefits, burdens, and risks of my current circumstances and treatment options.

(5) Powers of Health Care Agent After Death
(A) Autopsy
My health care agent will have the power to authorize an autopsy of my body unless I have limited my health care agent’s power by initialing below. (Initials)

My health care agent will not have the power to authorize an autopsy of my body (unless an autopsy is required by law).

(B) Organ Donation and Donation of Body
My health care agent will have the power to make a disposition of any part or all of my body for medical purposes pursuant to the Georgia Revised Uniform Anatomical Gift Act, unless I have limited my health care agent’s power by initialing below.

[Initial each statement that you want to apply.]
(Initials) My health care agent will not have the power to make a disposition of my body for use in a medical study program.
(Initials) My health care agent will not have the power to donate any of my organs.

(C) Final Disposition of Body
My health care agent will have the power to make decisions about the final disposition of my body unless I have initialed below.
(Initials) I want the following person to make decisions about the final disposition of my body:

Name:

Address:

Telephone Numbers:

(Home, Work, and Mobile)

I wish for my body to be:
(Initials) Buried

OR
(Initials) Cremated

PART TWO: TREATMENT PREFERENCES

[PART TWO will be effective only if you are unable to communicate your treatment preferences after reasonable and appropriate efforts have been made to communicate with you about your treatment preferences. PART TWO will be effective even if PART ONE is not completed. If you have not selected a health care agent in PART ONE, or if your health care agent is not available, then PART TWO will provide your physician and other health care providers with your treatment preferences. If you have selected a health care agent in PART ONE, then your health care agent will have the authority to make all health care decisions for you regarding matters covered by PART TWO. Your health care agent will be guided by your treatment preferences and other factors described in Section (4) of PART ONE.]

(6) Conditions

PART TWO will be effective if I am in any of the following conditions:

[Initial each condition in which you want PART TWO to be effective.]
(Initials) A terminal condition, which means I have an incurable or irreversible condition that will result in my death in a relatively short period of time.

(Initials) A state of permanent unconsciousness, which means I am in an incurable or irreversible condition in which I am not aware of myself or my environment and I show no behavioral response to my environment. My condition will be determined in writing after personal examination by my attending physician and a second physician in accordance with currently accepted medical standards.

(7) Treatment Preferences

[State your treatment preference by initialing (A), (B), or (C). If you choose (C), state your additional treatment preferences by initialing one or more of the statements following (C). You may provide additional instructions about your treatment preferences in the next section. You will be provided with comfort care, including pain relief, but you may also want to state your specific preferences regarding pain relief in the next section.]
If I am in any condition that I initialed in Section (6) above and I can no longer communicate my treatment preferences after reasonable and appropriate efforts have been made to communicate with me about my treatment preferences, then:
(A) (Initials) Try to extend my life for as long as possible, using all medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive. If I am unable to take nutrition or fluids by mouth, then I want to receive nutrition or fluids by tube or other medical means.

OR

(B) (Initials) Allow my natural death to occur. I do not want any medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive but cannot cure me. I do not want to receive nutrition or fluids by tube or other medical means except as needed to provide pain medication.

OR

(C) (Initials) I do not want any medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive but cannot cure me, except as follows:

[Initial each statement that you want to apply to option (C).]
(Initials) If I am unable to take nutrition by mouth, I want to receive nutrition by tube or other medical means.
(Initials) If I am unable to take fluids by mouth, I want to receive fluids by tube or other medical means.
(Initials) If I need assistance to breathe, I want to have a ventilator used.
(Initials) If my heart or pulse has stopped, I want to have cardiopulmonary resuscitation (CPR) used.

(8) Additional Statements

[This section is optional. PART TWO will be effective even if this section is left blank. This section allows you to state additional treatment preferences, to provide additional guidance to your health care agent (if you have selected a health care agent in PART ONE), or to provide information about your personal and religious values about your medical treatment. For example, you may want to state your treatment preferences regarding medications to fight infection, surgery, amputation, blood transfusion, or kidney dialysis. Understanding that you cannot foresee everything that could happen to you after you can no longer communicate your treatment preferences, you may want to provide guidance to your health care agent (if you have selected a health care agent in PART ONE) about following your treatment preferences. You may want to state your specific preferences regarding pain relief.]

(9) In Case of Pregnancy

[PART TWO will be effective even if this section is left blank.]
I understand that under Georgia law, PART TWO generally will have no force and effect if I am pregnant unless the fetus is not viable and I indicate by initialing below that I want PART TWO to be carried out.

(Initials) I want PART TWO to be carried out if my fetus is not viable.

PART THREE: GUARDIANSHIP

(10) Guardianship

[PART THREE is optional. This advance directive for health care will be effective even if PART THREE is left blank. If you wish to nominate a person to be your guardian in the event a court decides that a guardian should be appointed, complete PART THREE. A court will appoint a guardian for you if the court finds that you are not able to make significant responsible decisions for yourself regarding your personal support, safety, or welfare. A court will appoint the person nominated by you if the court finds that the appointment will serve your best interest and welfare. If you have selected a health care agent in PART ONE, you may (but are not required to) nominate the same person to be your guardian. If your health care agent and guardian are not the same person, your health care agent will have priority over your guardian in making your health care decisions, unless a court determines otherwise.]

[State your preference by initialing (A) or (B). Choose (A) only if you have also completed PART ONE.]

(A) (Initials) I nominate the person serving as my health care agent under PART ONE to serve as my guardian.

OR

(B) (Initials) I nominate the following person to serve as my guardian:
Name:
Address:
Telephone Numbers:

(Home, Work, and Mobile)

PART FOUR: EFFECTIVENESS AND SIGNATURES

This advance directive for health care will become effective only if I am unable or choose not to make or communicate my own health care decisions. This form revokes any advance directive for health care, durable power of attorney for health care, health care proxy, or living will that I have completed before this date.
Unless I have initialed below and have provided alternative future dates or events, this advance directive for health care will become effective at the time I sign it and will remain effective until my death (and after my death to the extent authorized in Section (5) of PART ONE).

(Initials) This advance directive for health care will become effective on or upon and will terminate on or upon .

[You must sign and date or acknowledge signing and dating this form in the
presence of two witnesses.

Both witnesses must be of sound mind and must be at least 18 years of age, but the witnesses do not have to be together or present with you when you sign this form.

A witness:
Cannot be a person who was selected to be your health care agent or back-up health care agent in PART ONE;
Cannot be a person who will knowingly inherit anything from you or otherwise knowingly gain a financial benefit from your death; or Cannot be a person who is directly involved in your health care.

Only one of the witnesses may be an employee, agent, or medical staff member of the hospital, skilled nursing facility, hospice, or other health care facility in which you are receiving health care (but this witness cannot be directly involved in your health care).]

By signing below, I state that I am emotionally and mentally capable of making this advance directive for health care and that I understand its purpose and effect.

(Signature of Declarant) (Date)

The declarant signed this form in my presence or acknowledged signing this form to me. Based upon my personal observation, the declarant appeared to be emotionally and mentally capable of making this advance directive for health care and signed this form willingly and voluntarily.

(Signature of First Witness) (Date)

Print Name:

Address:

(Signature of Second Witness) (Date)

Print Name:

Address:

[This form does not need to be notarized.]”

Note that this form DOES NOT NEED TO BE NOTARIZED, but it certainly does need to be executed in the presence of TWO witnesses.  The following case is the prevailing Georgia ruling on the interpretation afforded to this statute, Doctors Hosp. of Augusta, LLC v. Alicea, A15A0107 (Ga. App., 2015), which better illustrates the power-relationship between the personal representative designated by an Advance Directive and the Advance Directive iteself:

FOURTH DIVISION

BARNES, P. J.,

RAY, and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.

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, 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 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 SE2d 31) (2010). Guided by these principles, we turn to the record in the present case.

Stephenson’s Advance Directive for Healthcare. In November 2009, Bucilla C. Stephenson executed an advance directive for healthcare (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 Directive did not specifically list or define the medical technology that Stephenson 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 Doctor’s 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 Doctor’s 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.

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 performing an additional surgical procedure to drain the pus.

The March 5 Surgical Procedure. On the morning of March 5, Alicea received a telephone call from Dr. Catalano, who asked for her consent to perform the surgical procedure to drain more fluid from Stephenson’s lung cavity. He told Alicea he would insert a tube for drainage and that Stephenson would be under general anesthesia for the procedure. Dr. Catalano had not reviewed the progress notes in the medical chart and did not inform Alicea that the procedure would require intubation. Unaware that Stephenson would be intubated, Alicea consented to the procedure.

Dr. Catalano performed the surgical procedure later that day. He cleaned out the infected area of Stephenson’s chest cavity and removed portions of the lung upon discovering that the tissue was necrotic. Once the procedure was completed, Stephenson was extubated (i.e., the tube inserted into her airway was removed) and taken off the ventilator.

The March 7 Intubation. Following the March 5 surgical procedure, Stephenson’s condition continued to deteriorate, and by approximately 4:00 a.m. on March 7, she was unable to respond to questions from the ICU nurses and “was beginning to go into respiratory failure.” Despite the notation in the progress notes that there was to be no CPR or intubation without calling Alicea, the nurses did not contact Alicea, who had gone home for the night. Instead, one of the nurses called Dr. Catalano at home around 4:00 a.m. and asked him to give an order for Stephenson to be intubated. Although Alicea had told Dr. Catalano on March 4 that Stephenson had an Advance Directive and he knew that Alicea was the designated health care agent, Dr. Catalano had not reviewed the Advance Directive since that time and did not contact Alicea upon receiving the phone call from the ICU nurse. Furthermore, although hospital policy was to document conversations regarding an advance directive in the progress notes, Dr. Catalano had not reviewed the progress notes regarding Stephenson’s care.

Without contacting Alicea for permission, Dr. Catalano gave the order to intubate Stephenson. Based on Dr. Catalano’s order, Dr. Troy Coon, the on-duty physician in the emergency room, came to the ICU and intubated Stephenson around 4:50 a.m.

Later that morning, Alicea’s husband visited Stephenson in the ICU and was surprised to find her intubated and on a ventilator. After her husband called and informed her of the intubation, Alicea returned to the hospital. Alicea spoke with the ICU nurses and asked them to locate the hospital’s copy of Stephenson’s Advance Directive. The nurses initially could not find the hospital’s copy but ultimately located it in Stephenson’s medical chart at the ICU main desk. When Alicea demanded to know why Stephenson had been intubated without calling her first for permission, the nurses asked Dr. Michael Behnia, the attending pulmonologist who was managing Stephenson’s overall care in the ICU, to speak with Alicea about the situation.

Dr. Behnia advised Alicea of the circumstances of the early morning intubation and of Stephenson’s condition and treatment options. He informed Alicea that she could authorize an extubation and the removal of the ventilator, and that to do so would cause Stephenson to suffocate. Alicea was further advised that, alternatively, she could authorize the medical team to continue to treat Stephenson, including a second surgical procedure by Dr. Catalano to clean out more pus from the chest cavity.

Alicea showed the Advance Directive to Dr. Behnia and told him that the hospital had failed to follow Stephenson’s wishes by intubating her and placing her on a ventilator, but that “since they put her on it, they had to take care of her.” Alicea drew a distinction between never placing Stephenson on a ventilator and “let[ting] nature take its course,” and taking the affirmative step of removing her from the ventilator now that she was already on it. According to Alicea, she now “had to make the decision that [she] wasn’t supposed to have to make.” Declining to have Stephenson extubated and the ventilator removed at that point, Alicea chose to continue treatment for Stephenson and consented to the second surgery by Dr. Catalano, which he performed on March 8.

Stephenson’s Subsequent Medical Procedures. As Stephenson’s condition continued to deteriorate after the March 8 surgery, a number of additional medical procedures and interventions were performed on the advice of Stephenson’s physicians and with Alicea’s consent, including the placement of a feeding tube, a bronchoscopy to remove pus from the airway, and a tracheostomy to provide an airway and remove lung secretions. Stephenson remained in the ICU until March 14, when Alicea and the attending physicians authorized the removal of Stephenson from the ventilator, the entry of a “Do Not Resuscitate” order, and the provision of comfort measures only from that point forward. Stephenson died on March 17.

Procedural Background. On May 14, 2013, Alicea, as the administrator of the estate of Stephenson, filed her complaint for damages against Dr. Catalano and Doctors Hospital (collectively, the “Defendants”), alleging claims of breach of agreement, professional and ordinary negligence, medical battery, intentional infliction of emotional distress, and breach of fiduciary duty for injuries allegedly arising out of the care and treatment of Stephenson at Doctors Hospital.3 The complaint alleged that Dr. Catalano and the nurses and other medical personnel associated with Doctors Hospital had caused Stephenson pain, suffering, and emotional distress by subjecting her to unnecessary medical procedures, specifically intubation and placement on a ventilator on March 5 and March 7, when she was terminally ill, in violation of her Advance Directive and the instructions of Alicea as her designated health care agent. The complaint sought compensatory and punitive damages, together with attorney fees and the expenses of litigation.

Alicea relied upon an expert on gerontology, geriatrics, and palliative care4 to support her claims.5 The expert opined that when Stephenson arrived at the emergency room on March 4, “she had an incurable and irreversible condition that was likely to result in her death within a relatively short period of time thereafter.” Consequently, the expert opined that the Defendants were required under the standard of care to refrain from taking steps to prolong Stephenson’s life in accordance with her Advance Directive and the instructions of her designated health care agent, Alicea. According to the expert, Dr. Catalano breached the standard of care by failing to review Stephenson’s Advance Directive and the progress notes in her medical chart to determine if Alicea had given any directions for Stephenson’s care; by failing to obtain basic and informed consent from Alicea before the March 5 surgical procedure involving intubation; and by failing to obtain basic consent from Alicea before the March 7 intubation. The expert further opined that the nurses employed by Doctors Hospital had violated the standard of care by failing to contact Alicea before the March 7 intubation and failing to call Dr. Catalano’s attention to Stephenson’s Advance Directive and the notation in the progress notes regarding intubation.

Alicea later testified in her deposition that she would not have consented to Stephenson’s March 5 surgical procedure if she had been told it would involve intubation, and would not have consented to the March 7 intubation if she had been called before it occurred. According to Alicea, if she had been told on March 5 that the proposed procedure involved intubation, she would have authorized only less invasive procedures such as a thoracentesis, and if she had been called on March 7, she would have authorized only comfort measures from that point forward rather than intubation.

Dr. Catalano conceded in his deposition that he knew that Alicea was Stephenson’s health care agent under the Advance Directive but did not contact her before the March 7 intubation. Nor had he reviewed the Advance Directive or the March 4 progress note containing Alicea’s direction that no intubation occur without calling her first. Dr. Catalano testified that because the family had authorized the March 5 surgical procedure on Stephenson that had involved general anesthesia, and “obviously [he] had to intubate her to do [that] surgery,” he had believed there would be no objection to the March 7 intubation. Later in his deposition, Dr. Catalano testified that he had decided it would be better to order the intubation on March 7 and then consult the family later about whether they wanted to remove the ventilator: “[W]hen this happened I really didn’t go into any of the code/no code / do not intubate/resuscitate. Save the patient’s life first and then we’ll do whatever it takes to make the family and the patient whatever, but we can’t undo death. So that’s what I was thinking.”

Following discovery, the Defendants moved for summary judgment. The Defendants contended that they were shielded from liability for any claims relating to the March 7 intubation under the immunity provisions of OCGA § 31-32-10 (a) (2) and (3), and that any claims for lack of basic and informed consent for the March 5 surgical procedure and the March 7 intubation failed as a matter of law.

After conducting a hearing, the trial court granted in part and denied in part the Defendants’ motion for summary judgment. Specifically, the trial court granted summary judgment to the Defendants with respect to any informed consent claim based on the March 7 intubation, finding as a matter of law that intubation was not a medical procedure that required informed consent under Georgia law as set forth in OCGA § 31-9-6.1 (a).6 The trial court denied the Defendants’ motion for summary judgment as to all remaining claims and issues, including whether the Defendants were entitled to immunity for the March 7 intubation under OCGA § 31-32-10 (a), whether there was basic and informed consent for the March 5 surgical procedure, and whether there was basic consent for the March 7 intubation.

In conjunction with its summary judgment order, the trial court granted a certification of immediate review. The Defendants filed an application for interlocutory appeal, which we granted. This appeal followed.

1. The Defendants contend that the trial court erred in denying their motion for summary judgment on Alicea’s claims pertaining to the March 7 intubation because the uncontroverted evidence showed that they were entitled to immunity under OCGA § 31-32-10 (a) (2) and (3). Immunity under the statute is an affirmative defense, and thus the Defendants had the burden of proving that they were immune from liability. See Heath v. Emory Univ. Hosp., 208 Ga. App. 629, 631 (2) (431 SE2d 427) (1993) (defendants had burden of proving affirmative defense of statutory immunity for good faith compliance with procedures for holding a patient in a mental health facility after the patient has requested discharge). We conclude that the trial court properly denied summary judgment to the Defendants on the immunity question because genuine issues of material fact exist regarding whether the Defendants made a good faith effort to rely on the directions and decisions of Alicea, Stephenson’s health care agent under her Advance Directive, in carrying out the March 7 intubation.

The Advance Directive Act is codified at OCGA §§ 31-32-1 through 31-32-14. In adopting the current version of the Act, the General Assembly noted that it “has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn,” and that “the clear expression of an individual’s decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families.” Ga. L. 2007, p.133, § 1 (a), (d).

Among other things, the Advance Directive Act authorizes an adult of sound mind (the “declarant”) to execute a document designating a health care agent to make decisions on his or her behalf when the “declarant is unable or chooses not to make health care decisions for himself or herself.” OCGA §§ 31-32-2 (3), (6); 31-32-5 (a) (1). The health care agent may consent to or refuse any medical care or treatment for the declarant, including any surgical or life-sustaining procedures. OCGA § 31-32-7 (e) (1). The agent must exercise his or her powers “consistent with the intentions and desires of the declarant” if known, but if the declarant’s wishes are unclear, the agent must “act in the declarant’s best interest considering the benefits, burdens, and risks of the declarant’s circumstances and treatment options.” OCGA § 31-32-7 (b).

When the designated agent notifies a health care provider of a decision regarding the declarant’s medical care or treatment, the provider must abide by the agent’s decision, “subject to the health care provider’s right to administer treatment for the declarant’s comfort and alleviation of pain.” OCGA § 31-32-8 (2). However, OCGA § 31-32-10 (a) (2) and (3) of the Advance Directive Act affords health care providers and facilities7 immunity from liability for the refusal or failure to comply with a health care agent’s decision, so long as certain conditions are met.8Specifically, OCGA § 31-32-10 (a) provides in part:

(a) Each 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 shall be protected and released to the same extent as though such person had interacted directly with the declarant as a fully competent person. Without limiting the generality of the foregoing, the following specific provisions shall also govern, protect, and validate the acts 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:
(1) No such health care provider, health care facility, or person shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for complying with any direction or decision by the health care agent, even if death or injury to the declarant ensues;
(2) No such health care provider, health care facility, or person shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for failure to comply with any direction or decision by the health care agent, as long as such health care provider, health care facility, or person promptly informs the health care agent of such health care provider’s, health care facility’s, or person’s refusal or failure to comply with such direction or decision by the health care agent. The health care agent shall then be responsible for arranging the declarant’s transfer to another health care provider. A health care provider who is unwilling to comply with the health care agent’s decision shall continue to provide reasonably necessary consultation and care in connection with the pending transfer;
(3) If the actions of a health care provider, health care facility, or person who fails to comply with any direction or decision by the health care agent are substantially in accord with reasonable medical standards at the time of reference and the provider cooperates in the transfer of the declarant pursuant to paragraph (2) of Code Section 31-32-8,9 the health care provider, health care facility, or person shall not be subject to civil or criminal liability or discipline for unprofessional conduct for failure to comply with the advance directive for health care . . . .

(Emphasis supplied.)

The immunity question raised in this case centers on the Defendants’ “failure to comply” with Alicea’s direction to contact her and obtain permission before intubating Stephenson and placing her on a ventilator on March 7.10 By its plain language, OCGA § 31-32-10 (a) (2) and (3) afford immunity to a health care provider or facility that fails to comply with a direction of the health care agent if: the provider or facility promptly informed the agent of the failure to comply with the agent’s direction; the actions of the health care provider or facility that failed to comply with the agent’s direction were “substantially in accord with reasonable medical standards at the time of reference”; and the provider or facility cooperated in the transfer of the declarant at the behest of the agent and provided reasonably necessary consultation and care of the declarant in connect with the pending transfer.

In addition to these elements, Alicea argues that when the statute is read as a whole, immunity for the failure to comply with a health care agent’s direction under OCGA § 31-32-10 (a) (2) and (3) requires a showing that the health care provider or facility was acting in good faith reliance on the directions and decisions of the agent. In contrast, the Defendants suggest that good faith reliance, referenced in the introductory clause of the statute, is not an element of proving immunity for a provider or facility’s failure to comply with an agent’s direction under OCGA § 31-32-10 (a) (2) and (3). We agree with Alicea that good faith reliance must be taken into account as part of the immunity analysis.

Statutory construction is a question of law, and our review is de novo. Hill v. First Atlantic Bank, 323 Ga. App. 731, 732 (747 SE2d 892) (2013). “In construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” (Punctuation and footnote omitted.) Savannah Cemetery Group v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 207 (1) (704 SE2d 858) (2010). Furthermore, “in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.” (Citation and punctuation omitted.) Walker County v. Tri-State Crematory, 292 Ga. App. 411, 414-415 (1) (664 SE2d 788) (2008). Different subsections of a statute should be read in pari materia, and we must strive to “reconcile them, if possible, so that they may be read as consistent and harmonious with one another.” (Punctuation and footnote omitted.) City of LaGrange v. Ga. Public Svc. Comm., 296 Ga. App. 615, 621 (2) (675 SE2d 525) (2009).

Applying these principles in the present case, we conclude that the immunity afforded by OCGA § 31-32-10 (a) (2) and (3) applies only where the health care provider or facility was making a good faith effort to rely on the decisions and directions of the health care agent when treating the declarant, but nevertheless failed to comply with a direction of the agent. The first sentence of the introductory clause of OCGA § 31-32-10 (a) refers to health care providers and facilities that act “in good faith reliance on any direction or decision by the health care agent,” and the second sentence states that “without limiting the generality of the foregoing, the following specific provisions shall also govern, protect, and validate the acts 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.” (Emphasis supplied.) OCGA § 31-32-10 (a). The second sentence of the introductory clause then ends with a colon followed by several subsections, including subsections (a) (2) and (3), which address failures to comply with a health care agent’s direction or decision. In turn, OCGA § 31-32-10 (a) (2) begins with the words “no such health care provider, health care facility, or person,” linking the subsection to the introductory clause, and OCGA § 31-32-10 (a) (3) further elaborates on the conditions under which immunity can be obtained for failing to comply with an agent’s direction or decision.

Taken 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, including subsections (a) (2) and (3) pertaining to a failure to comply with an agent’s direction or decision. To reconcile and harmonize the introductory clause with these subsections and give effect to all the statutory language, we construe the immunity afforded by OCGA § 31-32-10 (a) (2) and (3) to arise only where the health care provider or facility made a good faith effort to rely on the directions and decisions of the health care agent in the medical care and treatment of the declarant that has been called into question. By construing the introductory clause and subsections in this manner, we avoid any apparent internal conflict in the statute and render the provisions consistent and harmonious with one another, as we are charged to do. Ford Motor Co. v. Carter, 239 Ga. 657, 661 (238 SE2d 361) (1977).

Accordingly, the Defendants, to prove that they were entitled to immunity under OCGA § 31-32-10 (a) (2) and (3) as a matter of law, had to establish that the uncontroverted evidence of record showed that they were making a good faith effort to rely on the directions and decisions of the health care agent, Alicea, when Stephenson was intubated in the ICU on March 7. “Good faith” has been defined as “a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation.” (Punctuation, and footnote omitted.) O’Heron v. Blaney, 276 Ga. 871, 873 (1) (583 SE2d 834) (2003). See Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 753 (1) (251 SE2d 250) (1978). “Ordinarily, good faith is a question for the jury based on a consideration of the facts and circumstances of the case.” Purcell v. Breese, 250 Ga. App. 472, 476 (4) (552 SE2d 865) (2001). See Hodges v. Youmans, 129 Ga. App. 481, 483 (3) (200 SE2d 157) (1973).

As previously discussed, Dr. Catalano testified in his deposition that he had believed he was carrying out the family’s wishes in ordering the March 7 intubation because in his “framework of thinking” Alicea had authorized him to perform the March 5 surgical procedure involving general anesthesia that required intubation. Dr. Catalano’s testimony would support a finding by a jury that he was making a good faith effort to rely on the directions and decisions of Alicea when he ordered Stephenson’s intubation.

On the other hand, Dr. Catalano later testified in his deposition that he “didn’t go into any of the code/no code / do not intubate/resuscitate” in deciding to intubate Stephenson on March 7 because he had decided to place her on ventilation first and then give the family the choice whether to remove her from it. Additionally, there was evidence that Alicea had specifically told Dr. Catalano that Stephenson had an Advance Directive and that Alicea did not want CPR or “heroic measures” performed on Stephenson. Despite these communications, Dr. Catalano chose not to read the Advance Directive or to contact Alicea before ordering the intubation, even though up to 50 minutes passed between when he was called by the ICU nurses and when the intubation was performed. Dr. Catalano also chose not to review the progress notes in Stephenson’s medical chart, which would have alerted him to Alicea’s express direction that no intubation occur without her permission, even though hospital policy reflected that any communications between a physician and family members regarding an advance directive would be documented there, and Dr. Catalano conceded that he had seen and reviewed the hospital’s policies pertaining to advance directives.

This combined evidence, when viewed in the light most favorable to Alicea as the non-moving party, creates a genuine issue of material fact as to whether Dr. Catalano made a good faith effort to rely on the directions and decisions of Alicea when he ordered the March 7 intubation. See Purcell, 250 Ga. App. at 477 (4) (genuine issues of material fact precluded summary judgment on question of physician’s good faith under different immunity statute, where there was evidence that, among things, the physician failed to call the patient’s parents or review notes in the patient’s file made by another physician that would have alerted him to the patient’s need for further treatment). The trial court thus committed no error in denying summary judgment to Dr. Catalano on his immunity defense under OCGA § 31-32-10 (a) (2) and (3).

We reach the same result with respect to Doctors Hospital, which failed to point to any evidence reflecting that the nurses employed at the hospital who were involved in the March 7 intubation of Stephenson made a good faith effort to rely on the directions and decisions of Alicea as the designated health care agent. Because Doctors Hospital had the burden of proof on this issue, see Heath, 208 Ga. App. at 631 (2), the lack of evidence in the record regarding the good faith reliance of its nurses precluded the grant of summary judgment in its favor on the issue of immunity under OCGA § 31-32-10 (a) (2) and (3), as the trial court properly concluded.11

2. The Defendants also contend that the trial court erred in denying their motion for summary judgment on Alicea’s medical malpractice claim for lack of informed consent based on the March 5 surgical procedure performed on Stephenson that involved intubation. According to the Defendants, Alicea failed to come forward with any evidence showing that Stephenson was injured by the March 5 procedure, and thus cannot succeed on her informed consent claim as a matter of law. We agree.

“Georgia does not recognize a common law duty to inform patients of the material risks of a proposed treatment or procedure[.]” Blotner v. Doreika, 285 Ga. 481 (678 SE2d 80) (2009). However, by statute,

any person who undergoes any surgical procedure under general anesthesia . . . must consent to such procedure and shall be informed of the diagnosis, nature, and purpose of the surgical or diagnostic procedure, material risks of the procedure, likelihood of success, the practical alternatives to the procedure, and the prognosis if the procedure is rejected.

(Citation and punctuation omitted.) Roberts v. Connell, 312 Ga. App. 515, 518 (2) (718 SE2d 862) (2011). See OCGA § 31-9-6.1 (a). To bring an action for medical malpractice premised upon the failure to obtain informed consent for a procedure in accordance with OCGA § 31-9-6.1 (a), the plaintiff must present evidence showing that “the patient suffered an injury which was proximately caused by the surgical or diagnostic procedure.” OCGA § 31-9-6.1 (d) (1).

In the present case, the March 5 surgical procedure involved general anesthesia and thus triggered a duty to inform Alicea, as Stephenson’s health care agent, of the material risks associated with the procedure and the other information required to be disclosed under OCGA § 31-9-6.1 (a). Alicea claims that informed consent was not properly obtained from her for the March 5 surgical procedure because she was not told that Stephenson would be intubated and was not fully informed of the nature, purpose, prognosis, alternatives, and advisability of the proposed procedure. She seeks compensatory and punitive damages based on this alleged lack of informed consent.

Alicea, however, has failed to come forward with any evidence that Stephenson suffered an injury that was proximately caused by the March 5 surgical procedure. There is nothing in the record to suggest that the intubation and ventilation of Stephenson during the procedure injured her in any manner, and Stephenson was extubated and the ventilator was removed when the procedure was completed. Nor is there any evidence that Stephenson experienced any adverse side effects or complications arising from the procedure, that her condition worsened from the procedure, or that she experienced any pain, suffering, or mental distress as a result of the procedure apart from what she was already experiencing as a result of her severe illness. Accordingly, we conclude that Alicea failed, as a matter of law, to satisfy the statutory requirement of showing an injury proximately resulting from the alleged lack of informed consent. See OCGA § 31-9-6.1 (d) (1). It follows that the trial court erred in denying summary judgment to the Defendants on Alicea’s informed consent claim predicated on the March 5 surgical procedure.

3. Lastly, the Defendants contend that the trial court erred in denying their motion for summary judgment on Alicea’s medical battery claim. We agree with the Defendants with respect to the March 5 surgical procedure, but not with respect to the March 7 intubation.

It is well-established that a competent adult patient has the right to refuse medical and surgical treatment. See OCGA § 31-9-7; State v. McAfee, 259 Ga. 579, 580 (1) (385 SE2d 651) (1989). If a health care agent has been designated for the patient in accordance with the Advance Directive Act, the agent may exercise the patient’s right to refuse such treatment. OCGA § 3l -32-5 (a) (1); 31-32-7 (e) (1).

In addition to the legal principle of “informed consent” previously discussed in Division 2, consent to medical treatment encompasses the principle of “basic consent.” Paden v. Rudd, 294 Ga. App. 603, 605 (2) (669 SE2d 548) (2008). “With respect to basic consent, a medical touching without consent constitutes the intentional tort of battery for which an action will lie.” (Punctuation and footnote omitted.) Id. See Prince v. Esposito, 278 Ga. App. 310, 311 (1) (a) (628 SE2d 601) (2006). Continued treatment of a patient after consent has been withdrawn also will give rise to a medical battery claim. Joiner v. Lee, 197 Ga. App. 754, 756 (1) (399 SE2d 516) (1990). “Actual physical injury is not required to support a claim for battery, which is an intentional tort.” (Citation and punctuation omitted.) Lawson v. Bloodsworth, 313 Ga. App. 616, 619 (722 SE2d 358) (2012).

Here, the uncontroverted evidence of record reflects that there was basic consent for the March 5 surgical procedure. Alicea consented to Dr. Catalano conducting a surgical procedure under general anesthesia to drain more fluid from Stephenson’s lung cavity on that date. And while Alicea alleges that Dr. Catalano did not fully disclose to her the nature of the procedure (including that it would entail intubation), the likelihood of success, and the practical alternatives to the procedure, those allegations reflect an informed consent, not a battery, claim.12 See OCGA § 31-9-6.1 (a). Because the “purported failure to obtain . . . informed consent does not give rise to a claim of battery,” Paden, 294 Ga. App. at 605 (2), the trial court erred in denying summary judgment to the Defendants on Alicea’s battery claim based on the March 5 surgical procedure.

We reach a different result with respect to the March 7 intubation. Alicea specifically directed Dr. Joseph that no intubation of Stephenson was to occur until she had been called and had given consent, and Dr. Joseph placed this information in his March 4 progress note in the medical chart. Based on this evidence, a jury could find that the Defendants had notice of this specific limitation on Stephenson’s medical care and treatment and thus were under an obligation to abide by it. See OCGA § 31-32-8 (2). Compare Roberts v. Jones, 222 Ga. App. 548, 549 (2) (475 SE2d 193) (1996) (physician could not be held liable for battery, where medical procedure limitation contained in advance directive was neither placed in the patient’s medical chart nor told to the physician). Nevertheless, Dr. Catalano and the ICU nurses did not contact Alicea to obtain her consent before the March 7 intubation. Furthermore, given that there was evidence that approximately 50 minutes elapsed between the time Dr. Catalano was called and the intubation was performed, a jury could find that the situation was not so emergent that consent could not have been obtained from Alicea by calling her at home before performing the intubation. Under these circumstances, a jury must resolve whether the Defendants committed medical battery by performing the March 7 intubation, and the trial court committed no error in denying the Defendants’ motion for summary judgment on this claim.13

In summary, we affirm the trial court’s denial of the Defendants’ motion for summary judgment on their immunity defense predicated on OCGA § 31-32-10 (a) (2) and (3) and on Alicea’s medical battery claim predicated on the March 7 intubation. We reverse the trial court’s denial of the Defendants’ motion for summary judgment on Alicea’s medical malpractice claim for lack of informed consent and on her medical battery claim predicated on the March 5 surgical procedure.

Judgment affirmed in part; reversed in part. Ray and McMillian, JJ., concur.
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Footnotes:

1. Stephenson’s Advance Directive varied from the model form set out in OCGA § 31-32-4. However, none of the parties dispute that the Advance Directive was valid under Georgia law. See OCGA § 31-32-5 (b).

2. Intubation involves passing a plastic tube through the mouth of the patient down into her airway. The plastic tube is then connected to a ventilator that controls the patient’s breathing.

3. The complaint also named Dr. Coon and his employer, CSRA Emergency Physicians, P.C., as defendants. The trial court granted summary judgment in favor of Dr. Coon and his employer on all of Alicea’s claims. Alicea has not appealed that ruling.

4. Gerontology is “[t]he scientific study of the biological, psychological, and sociological phenomena that are associated with old age and aging.” The American Heritage Medical Dictionary. (2007). Retrieved May 22, 2015 from http://medical-dictionary.thefreedictionary.com/gerontology. Geriatrics is “[t]he branch of medicine that deals with the diagnosis and treatment of diseases and problems specific to old age.” Id. Retrieved May 22 2015 from http://medical-dictionary.thefreedictionary.com/Geriatrics. Palliative care refers to treatments aimed at “[r]elieving or soothing the symptoms of a disease or disorder without effecting a cure. Id. Retrieved May 22, 2015 from http://medical-dictionary.thefreedictionary.com/palliative.

5. The Defendants assert that Alicea’s expert was not qualified to testify under OCGA § 24-7-702. The record reflects that after the trial court entered its summary judgment order, the Defendants raised the qualification issue in a motion to strike the affidavit and opinions of Alicea’s expert, but the trial court has not ruled on that motion and thus it remains pending below. Given this record, the qualification issue is not ripe for our review and will not be addressed on appeal. See Dempsey v. Gwinnett Hosp. System, 330 Ga. App. 469, 474 (1) (b) (765 SE2d 525) (2014); Renz v. Northside Hosp., 285 Ga. App. 882, 884 (1) (648 SE2d 186) (2007).

6. Alicea has not filed a cross-appeal challenging the trial court’s grant of summary judgment to the Defendants on the informed consent claim pertaining to the March 7 intubation.

7. It is undisputed that as a licensed hospital established under the laws of Georgia, Doctors Hospital satisfied the statutory definition of a “health care facility” under the Advance Directive Act. See OCGA § 31-32-2 (7). It is likewise undisputed that as a licensed attending physician permitted by law to administer health care, Dr. Catalano met the Advance Directive Act’s definition of a “health care provider.” See OCGA § 31-32-2 (8).

8. OCGA § 31-32-10 (b) provides immunity from civil liability “for failing or refusing in good faith to effectuate the declarant’s directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration.” (Emphasis supplied.) The Defendants did not rely upon this provision in the trial court as a basis for immunity, and we will not consider it for the first time on appeal. SeeWellons, Inc. v. Langboard, Inc., 315 Ga. App. 183, 186 (1) (726 SE2d 673) (2012) (“Appellate courts do not consider whether summary judgment should have been granted for a reason not raised below because, if they did, it would be contrary to the line of cases holding that a party must stand or fall upon the position taken in the trial court.”) (citation and punctuation omitted).

9. OCGA § 31-32-8 (2) provides:

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, subject to the health care provider’s right to administer treatment for the declarant’s comfort or alleviation of pain; provided, however, that if the health care provider is unwilling to comply with the health care agent’s decision, the health care provider shall promptly inform the health care agent who shall then be responsible for arranging for the declarant’s transfer to another health care provider. A health care provider who is unwilling to comply with the health care agent’s decision shall provide reasonably necessary consultation and care in connection with the pending transfer.

10. Because the Defendants never argued in the trial court that they were entitled to immunity for the March 5 surgical procedure, we will not consider that issue on appeal. See Wellons, Inc., 315 Ga. App. at 186 (1). We also note that this case does not involve a “refusal” by a health care provider to follow a health care agent’s direction for religious or philosophical reasons.

11. Because there are genuine issues of material fact regarding whether there was a good faith effort by the Defendants to rely on the directions and decisions of Alicea in carrying out the March 7 intubation, we need not address whether the other statutory conditions for immunity were met in this case. See generally Lowry v. Cochran, 305 Ga. App. 240, 241 (699 SE2d 325) (2010) (“We will affirm a trial court’s denial of a motion for summary judgment if it is right for any reason.”).

12. As noted in Division 2, Alicea’s informed consent claim predicated on the March 5 surgical procedure fails for lack of evidence of any injury.

13. The Defendants’ reliance on Pruette v. Ungarino, 326 Ga. App. 584, 590-592 (3) (757 SE2d 199) (2014) (physical precedent only) is misplaced. Pruette addressed, among other things, whether certain expert testimony regarding what the defendant physician should have told the patient’s family went to the issue of informed consent or basic consent and whether it should have been excluded from trial. In contrast, the issue in the present case is the more general one whether there was any evidence to support a battery claim for lack of basic consent to the March 7 intubation.
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Jul 21 15

What Point Should Separate Property Be Measured From?

by merlin

I take the rare step of linking to someone else’s blog article (from the Law Offices of Andy Cook, an attorney in California, with an article about a ruling by the California Supreme Court on when the line can be drawn between marital property and separate property and, therefore, when the “date of separation” begins for purposes of determining responsibility for household bills and what is considered joint versus individual).  The address is http://www.divorcesd.com/supreme-court-rules-on-date-of-separation-in-california-divorce-cases/?sthash.z7dNRwF5.mjjo, and this is a common-sense idea that gets overlooked by folks, for simplicity’s sake.

I have posted this link because it is something that people engaged in the divorce process should consider – especially if there was a substantial time in which they formally stayed in the marital residence but did not actually live there.

Jul 15 15

Court with Jurisdiction that Takes a Case First Gets to Keep it.

by merlin

Everyone has heard it said that “there is nothing new under the sun”.  This is what I believed until I started noticing that some rules are only just being decided, over two centuries into this country’s existence.  Jurisdiction of the juvenile court versus the superior court in Georgia is one of those issues that I (incorrectly, I might add) had believed to be settled long ago.  However, that is not the case.

Though it pains me to do so, the losing party in the case below was represented on appeal by none other than the inestimable James Outman.  In fact, a case cited in the opinion, Owen v. Watts, was one that he and I worked successfully on together.  However, I have to present the following case for the proposition that a Court that has taken jurisdiction takes it to the exclusion of a later-acting Court that has concurrent jurisdiction.  This is In re J.C.W., 315 Ga.App. 566, 727 S.E.2d 127, 12 FCDR 1010 (Ga. App., 2012):

Janine Marie Carson, for appellant.

James B. Outman, Diana Rugh Johnson, for appellee.

             BOGGS, Judge.

A mother appeals from a superior court order granting the petition of foster parents to terminate her parental rights with regard to her two-year-old twins, after the juvenile court had already issued an order placing custody of the twins with their maternal aunt and uncle until their eighteenth birthdays.1 The mother contends on appeal that (1) the superior court lacked jurisdiction; (2) the doctrine of res judicata barred the foster parents’ petition to terminate; (3) the legal custodians of the children should have been made parties to and received notice of the termination and adoption proceedings; and (4) the superior court erred by terminating her rights based upon sealed juvenile court orders unlawfully in the possession of the foster parents’ attorney. Based on our conclusion that the superior court lacked jurisdiction because the juvenile court had already taken jurisdiction of the issue, we vacate its order terminating the mother’s parental rights.

Juvenile Court Proceedings

        The complicated procedural history of this case begins with the twins’ birth on February 10, 2009. Shortly after their birth, the twins, along with their 16–month–old brother, were placed in DFACS’ temporary legal custody by the Juvenile Court of Fulton County. On March 22, 2009, the twins and their older brother were placed with the foster parents, who were not interested in adopting the children at that time. When the foster parents became overwhelmed by caring for three very young children, DFACS initially determined that it would move all three children to another home, but later decided to move only the older child to another home. The foster mother testified that the older child “had some disciplinary issues, you know, acting out.”

During a hearing on June 3, 2009, the mother stipulated to the deprivation petition filed by DFACS. On July 9, 2009, the juvenile court issued an order finding the children deprived based upon findings that the mother did not have adequate housing for herself and the children, that she did not have adequate income to support herself and the children, that the mother “has mental health issues,” 2 that one of the twins was diagnosed “as failure to thrive,” that the mother allowed one of the twins to fall out of her lap causing visible physical injuries, and that the mother failed to cooperate with DFACS. The mother did not appeal the juvenile court’s deprivation order.

In April 2010, the maternal aunt and uncle learned that the twins were in DFACS custody 3 and were asked to consider taking custody of the three children. After praying about it and discussing it with other members of the extended family, they agreed to take in the children. The home evaluation process began in April 2010, and the aunt and uncle were approved in October 2010.

DFACS began scheduling visits between the twins and their aunt and uncle in August 2010. Beginning in October, the aunt and uncle had two-hour visits that progressed into all-day, overnight, and then weekend visits. On November 5, 2010, the twins’ older brother was placed with them. The foster mother expressed to DFACS at some point during the visitations that she did not like the relatives and admitted being irritated that the mother was present during one of the twins’ visits with the aunt and uncle.

On August 10, 2010, DFACS moved to terminate the parental rights of both parents. Following a hearing on September 23, 2010, the juvenile court noted that the mother had complied with the following portions of her reunification plan: “the mother has completed the psychological evaluation, is participating in parenting classes, visits the children and participates in therapy.” It also noted, however, that “returning to the home would be contrary to the welfare of the children because the mother has not completed parenting classes and is without appropriate housing for herself and her children” and “has not provided verifiable documentation of employment or the means to provide for the financial needs of the children.” On October 8, 2010, the juvenile court scheduled DFACS’ petition for the termination of parental rights for a hearing on November 18, 2010.

On November 15, 2010, the foster parents moved to intervene in the juvenile court proceeding and sought custody of the twins based upon their intention to adopt following a termination of parental rights. On November 16, 2010, DFACS moved the juvenile court to cease all reunification efforts based upon a permanency plan to place all three children with the maternal aunt and uncle. In the motion, DFACS also took the position that “[t]ermination of parental rights is not in the best interest of the children” based upon the permanency plan to place all of the children with fit and willing relatives. On the same date, DFACS petitioned the court to modify custody and place all three siblings with the aunt and uncle until their eighteenth birthdays. Neither of these petitions references a stipulation of nonreunification by the mother.

At the beginning of the hearing, the child advocate attorney asked the associate juvenile judge sitting “pro hac vice” for a continuance “so that Judge Hodges can hear the termination,” to which the associate judge responded “okay.” Counsel for DFACS then asked the judge to rule on the pending motion for nonreunification and modification of custody to the aunt and uncle. DFACS’ counsel declined to dismiss its pending petition to terminate parental rights, stating, “We’ll make that determination once the [c]ourt has ruled on the motion for non-reunification and the petition to modify.” Counsel for the mother stated that she had “no objection to the motion for non-reunification,” and “stipulate[d] to the petition to modify custody” to the aunt and uncle.

Based on the mother’s consent, the juvenile court orally granted DFACS’ motion for nonreunification before ruling on the custody issues. The judge then declined to continue the custody issues until the juvenile judge who had been handling the case from the beginning could hear it. After hearing testimony from the foster mother and the maternal uncle on issues of custody only, the juvenile judge ruled from the bench and denied DFACS’ motion to modify custody of the twins to the aunt and uncle and granted custody of the twins to the foster parents over the objection of the mother and DFACS.4 It entered a written order to this effect on January 19, 2011 at 3:01 p.m., which also relieved DFACS of custody over the twins. The associate judge hearing the motions on custody and non-reunification at no time issued a ruling on DFACS’ pending petition to terminate the parental rights, and evidence was not submitted on this issue.

In a written order entered the same day at 3:02 p.m., the judge found that “[t]he mother, through counsel, consented to the Motion [for nonreunification]. Based on the consent of mother through counsel, the [c]ourt finds that [the mother] of the … children, has failed to achieve the goals in the case plan designed to enable her to be reunited with her children.” After a recitation of facts concerning the mother’s fitness and conduct stated in the motion, for which no evidence was introduced in the hearing, the juvenile judge concluded that parental misconduct existed within the meaning of OCGA § 15–11–94(b)(4)(A)(i)–(iv). It then concluded, that “non-reunification [315 Ga.App. 570]of these children with their parents is in their best interest. Therefore, reunification efforts by the Department shall cease, in accordance with OCGA § 15–11–58(h). Custody of the children remains with [DFACS].5 (Emphasis supplied.) (Emphasis supplied.)

On January 13, 2011, the mother moved for rehearing under OCGA § 15–11–21(e). The chief juvenile court judge granted the motion for rehearing on February 1, 2011. On February 28, 2011, the chief juvenile judge issued an 11–page order in which she conducted a de novo review under Uniform Juvenile Court Rule 19.2.6 In this order, the chief juvenile judge concluded

that it is not in the best interest of [the children] to be separated from their sibling by being placed with the foster parents, but it is in the best interest of all three children to be placed together which was the original plan of the Department when they placed all three children with the foster parents and they were separated only at the request of the foster parents.
Additionally, it concluded that “[b]y failing to adopt the permanency plan of the Motion for Non–Reunification, the court failed to give proper consideration to the agreement reached between the mother and the Department wherein the permanency plan was changed to placement with a fit and willing relative.” And, according to the chief juvenile judge, additional error resulted from the court hearing evidence on a motion to change custody to the foster parents when the nonreunification motion it had orally granted included a permanency plan for placement with the aunt and uncle. “When the court placed the twins with the foster parents, the mother did not get the benefit of her bargain and now risks losing the children forever as the foster parents wish to adopt.” Based on these findings, the chief juvenile judge vacated the associate juvenile judge’s January 19, 2011 order and awarded custody to the aunt and uncle under OCGA § 15–11–58(i) until the twins’ eighteenth birthdays.

In In the Interest of J.C.W., 311 Ga.App. 894, 717 S.E.2d 512 (2011), we vacated the chief juvenile judge’s February 28, 2011 order based upon her failure to make a finding that “referral for termination of parental rights and adoption was not in the twins’ best interest.” See OCGA § 15–11–58(i). After the case was remanded, the chief juvenile judge issued an order on October 21, 2011, in which she found that termination of parental rights would not be in the best interest of the children. On October 31, 2011, the child advocate attorney filed a notice of appeal from this order, and that appeal is now pending in this court as Case No. A12A1341.

Superior Court Proceedings

         On December 15, 2010, following the oral grant of their request for custody, the foster parents filed a petition for adoption in Fulton County Superior Court that also sought termination of the mother’s parental rights. 7 This petition was not served on DFACS or the aunt and uncle, and the foster parents did not obtain consent for the adoption from DFACS before filing it. See OCGA §§ 19–8–3(b) and 19–8–13(a)(2); Owen v. Watts, 303 Ga.App. 867, 869(2), 695 S.E.2d 62 (2010).

On March 9, 2011, the foster parents sought termination of parental rights through a summary judgment motion relying upon certified copies of petitions and orders filed in the juvenile court.8 The superior court held a hearing on March 11, 2011, and issued orders the same day terminating parental rights and granting the foster parents’ petition for adoption of the twins. The order terminating parental rights was based upon the facts contained in the certified juvenile court records, not evidence submitted during the hearing. The juvenile court records reviewed by the superior court did not include any DFACS internal records, such as case plans or reports of any psychiatric assessments of the mother.

1. In this appeal, the mother asserts that the superior court lacked jurisdiction to rule on the foster parents’ petition to terminate. We agree.

OCGA § 15–11–28(a)(2)(C) provides that juvenile courts

shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action …[i]nvolving any proceedings … [f]or the termination of the legal parent-child relationship … other than that in connection with adoption proceedings under Article 1 of Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship….

In cases involving issues of concurrent jurisdiction between juvenile courts and superior courts, Georgia courts have repeatedly held that “the first court taking jurisdiction will retain it.” Segars v. State of Ga., 309 Ga.App. 732, 735, 710 S.E.2d 916 (2011). See also Breeden v. Breeden, 202 Ga. 740, 741(6), 44 S.E.2d 667 (1947); Dunbar v. Ertter, 312 Ga.App. 440, 441, 718 S.E.2d 350 (2011), cert. granted (Case No. S12C0452, March 5, 2012); Long v. Long, 303 Ga.App. 215, 218–219, 692 S.E.2d 811 (2010). The policy behind this rule “is to keep down litigation and avoid a multiplicity of suits.” Hood v. Cooledge, 39 Ga.App. 476, 480, 147 S.E. 426 (1929).

The competing orders issued concerning the mother’s parental rights regarding the twins demonstrate the wisdom of this rule. The juvenile court has issued an order concluding that termination of the mother’s parental rights is not in the best interest of the children, and the superior court has entered an order reaching the opposite conclusion. Because it is undisputed that a termination petition was first filed in juvenile court, we conclude the superior court erred by exercising jurisdiction over the issue of termination. See Dunbar, supra;Segars, supra;Long,supra.9

2. The remaining enumerations of error are rendered moot by our holding in Division 1.

Judgment vacated.

MIKELL, P.J., and DILLARD, J., concur.
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Notes:

1. After terminating the parental rights of both parents, the superior court granted the foster parents’ application for adoption of the twins.

2. In the petition to which the mother stipulated, DFACS alleged that the mother suffers from schizophrenia and bipolar disorder.

3. It appears that the mother initially instructed DFACS not to contact her family members because she wanted to be reunified with her children.

4. The juvenile judge ordered that the twins’ older brother be placed with the aunt and uncle.

5. This finding regarding DFACS’ custody contradicts the order entered one minute before that granted custody to the foster parents. The previous order stated that DFACS “is relieved of any further custodial responsibilities towards the children.”

6. This rule provides:

A rehearing of an associate judge’s order under OCGA § 15–11–21(e) will be by a review by the juvenile court judge of the pleadings, recorded, electronic, or written transcript and evidence of the original proceeding to be obtained at the request and expense of the party appealing said ruling of the associate judge. The standard of proof for such review shall be the same as for the original case.

7. It appears this case was not assigned to a Family Division judge as required by Fulton County Superior Court Family Division Case Management Rules 100–2, 100–3, and 400–1.

8. The certified copies of the juvenile court records were provided to the foster parents’ counsel by the child advocate attorney who represented the children in juvenile court.

9. Our opinion in Snyder v. Carter, 276 Ga.App. 426–427, 623 S.E.2d 241 (2005), does not require a different result because in Snyder, the termination petition was filed in juvenile courtafter a petition for termination and adoption was filed in superior court. The issue before us in Snyder was whether a pending deprivation proceeding precluded a superior court from exercising jurisdiction over the adoption and termination petition. Additionally, the Snyder court relied upon a decision, Edgar v. Shave, 205 Ga.App. 337, 422 S.E.2d 234 (1992), issued at a time when the superior court had exclusive rather than concurrent jurisdiction over termination petitions filed in connection with adoption. Snyder, 276 Ga.App. at 427, 623 S.E.2d 241. Compare OCGA § 15–11–5(a)(2)(C) (1992) with current OCGA § 15–11–28(a)(2)(C).

Jul 14 15

Documented Efforts to Collect Attorney’s Fees (Part 5)

by merlin

Recently, I have been affirmatively pushing forward with many other matters, but this process continues steadily, and a common misconception many debtors seem to suffer from needs to be dispelled.

REFUSING notice of a debt due is the same as ACKNOWLEDGING that the debt is due.  They did their part to notify you; you cannot hide from it and hope it somehow missed you.  That kind of defense only works in the minds of toddlers (if I can’t see it, then it doesn’t exist).

The following case is J. Laddie Boatright, HazleWorth v. Alma Exchange Bank & Trust, and it talks about this in the context of seizing property for the satisfaction of a debt due.  It is found at 320 S.E.2d 816, 171 Ga.App. 748 (Ga. App., 1984)

         J. Laddie Boatright, for appellants.

        M. Theodore Solomon, Jimmie J. Boatright, Alma, for appellee.

       McMURRAY, Chief Judge.

        On October 1, 1980, Leon Worth executed a demand note designated as loan number 15589 in the amount of $100 in favor of the Alma Exchange Bank and Trust, Alma, Georgia. A separate “guaranty of payment” was attached thereto executed by Homer Worth made for value received but with no date shown thereon. As security for the loan the note referred to deeds to secure debt, dated 10-1-80 to “75 acres land lot 417 5th ld” and “land lot 457 & 418 5th ld.” On December 5, 1980, Leon Worth executed a promissory note referred to as a “consumer collateral note,” number 16053, in the amount of $6,000 as the amount of the loan, total payments $7,111.93, in favor of Alma Exchange Bank and Trust, Alma, Georgia, the collateral being a 1981 Ford pick-up with a certain serial number as shown on the note. On July 24, 1981, Leon Worth executed a “consumer single payment note and security agreement” to the Alma Exchange Bank and Trust, Alma, Georgia, as a renewal note, number 001299, securing the proceeds of a loan of $30,000 being a direct renewal of loan number 4041505-000299. Under the security interest it referred to certain real property described in certain deeds to secure debt, dated “11-18-80″ and “10-2-80″ as to 75 acres in Land Lot 417, 5th Land District and property located in Land Lots 457, 418, 5th Land District, recorded in deed books of Bacon County, Georgia. The indebtedness in loan number 001299 was secured by a deed to secure debt wherein the borrower conveyed to the lender certain real property. The borrower was shown therein to be indebted to the lender in the sum of $15,000 and also $100. The land in the deed to secure debt was described as consisting of 75 acres more or less in original Land Lot 417, 5th Land District of Bacon County, Georgia, being more particularly described in a plat of survey recorded in Bacon County, Georgia and also by metes and bounds. This instrument referred to notes “dated 10-1-1980 in the amount of $15,206.73 payable 10-31-80, at the interest rate of 15.00%” and “10-1-80 in the amount of $100.00 due on demand at the rate of $15.00%.”

        The 1981 Ford pick-up truck referred to in note number 16053 was voluntarily surrendered by Leon Worth. He contends, however, that he had not received any information from the bank that it intended to seek a deficiency judgment against him.

        Thereafter, Alma Exchange Bank and Trust, as plaintiff, sued Leon Worth and Homer Worth alleging the defendants are indebted to the plaintiff in the amount of $38,289.92, including interest through April 14, 1982, with a daily interest accrual of $18.02 together with attorney fees of 15% of principal and interest through date of payment on the promissory notes referred to above. Plaintiff contends that by separate written instrument dated May 28, 1981 (attached as an exhibit), Homer Worth guaranteed the payment of all indebtedness of Leon Worth and that this guarantee encompasses and includes the three promissory notes hereinbefore described. The complaint set forth that Leon Worth had executed and delivered to the plaintiff a deed to secure debt conveying 75 acres of land referred to in the above deed to secure debt and also a deed to secure debt conveying a small plot of land in Land Lots 457 and 418 in the 5th Land District of Bacon County. On the same date, October 1, 1980, in separate instruments Homer Worth and Leon Worth executed a deed to secure debt to the Alma Exchange Bank (the Homer Worth deed for loan of $34,000) (the loan of Leon Worth for an indebtedness of $15,000 and $100) both instruments describing land in Land Lots 457 and 418 of the 5th Land District of Bacon County, Georgia, describing the same property by courses and distances located near the intersection of two roads. Each of the deeds to secure debt attached to the pleadings set forth a clause reciting that such instrument secures any and all renewals and extensions of the described indebtedness and also any other indebtedness, principal and interest now owing or that may be incurred hereafter by borrower to lender by reason of additional loans or otherwise. Plaintiff alleged further that payments of such notes are in default and demand for payment has been made and notice of attorney fees has been given, demanding judgment against the defendants.

        Both defendants answered, in substance, denying the claim, admitting only jurisdiction but adding that the indebtedness is and was secured by a deed to secure debt over real estate. However, defendant contends the 75-acre tract had been sold upon foreclosure of the deed to secure debt in question after advertisement on April 6, 1982, to satisfy the indebtedness and the property was sold to Homer Worth as bidder for his wife for $15,000 and the plaintiff who instituted foreclosure proceedings did not and has not within 30 days of the sale of said property on April 6, 1983, reported the sale for confirmation and approval. With reference to the note in which the pick-up truck was offered as security the possession of same was voluntarily surrendered to the plaintiff by agreement between the parties in satisfaction of this alleged debt and defendant has not received any notice that plaintiff intended to seek a deficiency judgment against him. Defendant contends plaintiff has by this action and another proceeding in another case in the same court, sought to recover from the defendants excessive financial charges in violation of the law. Defendant also contends that plaintiff has asserted illegal interest charges in violation of the usury statutes with reference to the loans and defendants are entitled to recover penalties provided for in the Motor Vehicle Sales Finance Act, and they seek judgment for same in their answer to this complaint.

        On August 9, 1982, in this same case, plaintiff applied for confirmation of sale under power with reference to the 75-acre tract. It alleges therein that the plaintiff had declared the obligations due and payable, same were not paid when due and pursuant to power of sale in said deed to secure debt had advertised the sale of said property in the official gazette of the county as required by law, and on the first Tuesday in August 1982 and pursuant to said notice had sold the property to another for the sum of $14,000.

        Plaintiff now seeks within 30 days after said sale that the same be confirmed and approved, the property having brought its true market value of $14,000 at said sale.

        The defendants answered the application for confirmation and approval of sale under power, denying the averments of the application and further alleging that the property had previously been foreclosed under the deed to secure debt in question after advertisement on April 6, 1982, to satisfy the indebtedness which had been sold to Homer Worth as bidder for his wife for $15,000 and the sum now claimed of only $14,000 is not the fair market value of the property which had previously brought $15,000 on the first foreclosure sale. Defendants further allege that the second sale is fraudulent and an attempt by the plaintiff to avoid the consequences of its act in failing to have the first sale confirmed. The plaintiff had refused to deed the property to Mrs. Homer Worth notwithstanding that legal tender was made and that the plaintiff is guilty of laches in this proceeding in failing to comply and in seeking confirmation after the sale of property on April 6, 1982, and is not entitled to any action for deficiency judgment.

        On September 20, 1982, filed September 22, 1982, the superior court entered an order confirming the sale setting forth that on October 1, 1980, the defendant Leon Worth had executed and delivered to the bank his deed to secure debt containing a power of sale in case of default and said property had been duly advertised and sold to another for the sum of $14,000, bringing its true market value. The sale was conducted for the purpose of paying the indebtedness, but did not bring the amount of the debt due. The debtor and the guarantor, the defendants herein, were given at least five days notice of the hearing as provided by order of the court. The advertisement of the sale was legal and proper.

        After discovery (a deposition of the defendant Leon Worth and admissions of fact in certain unanswered requests for admissions to both the defendant Homer Worth and the defendant Leon Worth with reference to the various notes and guaranty agreements, the defendants having failed to reply to said requests for admissions, as well as the defendants’ failure to answer certain interrogatories) plaintiff  moved for summary judgment. The motion for summary judgment was also based upon the confirmation of the sale and also an affidavit of an officer of the plaintiff regarding the amounts currently due and owing under all three notes. Defendants did seek by motion to withdraw the admissions resulting from the failure to answer, contending that they had been prevented from filing their answers to the requests for admissions by providential cause due to illness of one of the defendants and some of the information not being available and the presentation of the case on the merits will be subserved by the granting of this motion. Defendants’ affidavits were also offered opposing the motion setting forth in substance that the property had already been sold, said affidavits including the substance of their answers to the complaint.

        After a hearing the court issued an order denying the motions of both defendants to withdraw admissions resulting from defendants’ failure to answer. As to plaintiff’s motion for summary judgment same was granted after a hearing, and defendants appeal. Held:

        First of all, we point out that both parties in this summary judgment case seek to retry this case anew before this court by setting forth in their briefs various and sundry facts in regard to what had occurred in this case without pointing out where in the record or transcript of the proceedings these facts may be found. From the admissions of the defendants, however, certain activities may have occurred in regard to the foreclosure of the property. Thus, we proceed to the considerations of the various enumerations of error as best we can in regard to the superior court’s rulings and orders under review.

        1. The first enumeration of error alleges the superior court erred in confirming the non-judicial foreclosure sale upon the power contained in the deed to secure debt. We note this action was filed in the same proceeding (suits on promissory notes), hence a final judgment did not occur until the grant of summary judgment. Therefore, it, in itself, although a proceeding brought under former Code Ann. §§ 67-1503, 67-1504, 67-1505 (now OCGA § 44-14-161, effective November 1, 1982) would have been a final judgment if separately filed but same did not become final when filed in another action on the notes as here, the same being ancillary to the main action on the notes, or deficiency after the sale while this action was pending. See in this connection Wall v. Fed. Land Bank, 240 Ga. 236(1), 237, 240 S.E.2d 76; First Nat. Bank & Trust Co. v. Kunes, 230 Ga. 888, 199 S.E.2d 776, aff’g Id. 128 Ga.App. 565, 197 S.E.2d 446.

        But there is no transcript of the confirmation hearing in the record to review, and of course, the duty is upon the appellant to show error from the record which cannot be done absent the transcript of that proceeding, if any. See Ward v. Nat. Dairy Prods. Corp., 224 Ga. 241(1), 242(2), 244-245, 161 S.E.2d 305; Martin v. Dept. of Public Safety, 226 Ga. 723(3), 177 S.E.2d 243; Buford v. Buford, 234 Ga. 700, 703, 217 S.E.2d 160. By brief, defendants’ counsel points out that in response to the confirmation application, the property had already been sold at an earlier sale and for this reason, it could not again be sold so as to apply for confirmation of the second sale in 30 days of its original sale. We have only the response and admissions that such a sale may have occurred, although both counsel seek to point out in their briefs certain unsupported facts as to the transaction, none of which we can consider. At most it appears that this proposed foreclosure was incomplete and never a completed sale. No evidence has been produced showing a sale under the power and we cannot consider evidence presented by brief. We assume the order of the court confirming the sale is correct. Walsey v. Lockhart, 140 Ga.App. 348(2), 231 S.E.2d 124. This enumeration of error is not meritorious.

        2. Again as to the second enumeration of error, defendants seek to review the denial of their motions to withdraw admissions of fact made when they failed to answer written requests for admissions of fact. The superior court in the denial of the motions set forth that a hearing was held at which time defendants offered no testimony in support of their motion to withdraw the admissions. Counsel for the defendants contends that such admissions should be avoided when to do so will aid in the presentation of the merits of the action and will not prejudice the party who made the request, and the plaintiff failed to show it would be prejudiced by granting the motion, citing Franks v. Reid, 134 Ga.App. 94, 213 S.E.2d 193; Cielock v. Munn, 244 Ga. 810, 812, 262 S.E.2d 114; West v. Milner Enterprises, 162 Ga.App. 667, 292 S.E.2d 538; Dorfman v. Lederman, 154 Ga.App. 473, 268 S.E.2d 767; and Moore Ventures Ltd. Partnership v. Stack, 153 Ga.App. 215, 218-219, 264 S.E.2d 725. However, in Whitemarsh Contractors v. Wells, 249 Ga. 194, 195-196, 288 S.E.2d 198, the Supreme Court clarified Cielock v. Munn, 244 Ga. 810,262 S.E.2d 114, supra, by adopting the special concurrence in Cielock which set forth that the defendant movant (who seeks to withdraw the admissions) must show that “the presentation of the merits will be subserved” by allowing the withdrawal and the mere filing of the motion does not satisfy this test. Further, as in the case sub judice, when the burden of proof at trial would be on the requestor (the plaintiff), the defaulting movant must show “the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and … the denial is not offered solely for purposes of delay.”

        The defendants failed to satisfy the first prong of former Code Ann. § 81A-136(b) (Ga.L.1966, pp. 609, 648; 1967, pp. 226, 234, 235; 1972, pp. 510, 528) (now OCGA § 9-11-36(b)) by showing that the presentation of the merits would be subserved by allowing the withdrawal or amendment of the admissions, as they offered no testimony. As no evidence was provided, we must again assume the order denying the motion was correct. See Walsey v. Lockhart, 140 Ga.App. 348(2), 231 S.E.2d 124, supra. There is no merit in this complaint.

        3. We next consider whether or not the superior court erred in rendering the final judgment granting summary judgment to the plaintiff against both defendants. All three notes were executed by the defendant Leon Worth. An earlier summary judgment had been entered against defendant Leon Worth as to the December 5, 1980, promissory note (number 16053, being a consumer collateral note involving the collateral, the 1981 Ford pick-up), and the judgment fi. fa. dated November 30, 1982, is shown to have been received by the assistant vice president of plaintiff “on which no amounts have been paid,” and she has sworn to the amount due in an affidavit as follows: $3,272.58 principal; $389.30 interest, $1,075.97 attorney fees. She also by affidavit has testified that Leon Worth owes on one note (number 001299), the principal sum $24,270.08, interest $1,760.71, and attorney fees $3,904.62; and as to the other note (number 15589), $47.48 principal and $21.17 interest, all as of December 20, 1982.

        The defendants have admitted the unpaid notes and the guaranty of payment by Homer Worth and notice of the claimed attorney fees by reason of an unclaimed certified letter addressed to Leon Worth at a post office box, Alma, Georgia, the defendant Leon Worth having admitted having received notice from the U.S. Postal Service that he had a certified letter to pick up at the Alma Post Office. See former Code Ann. § 20-506(c) (Ga.L.1946, pp. 761, 766; 1953, pp. 545, 546; 1957, p. 264; 1968, p. 317) (now OCGA § 13-1-11(a)(3)) providing that the refusal to accept delivery of the notice shall be the equivalent of such notice.

        In granting summary judgment to the plaintiff some four months after the affidavit offered in proof of the sums due, dated April 27, 1983, and filed April 28, 1983, the superior court rendered judgment against defendant Leon Worth, as follows: Note 1, as of April 21, 1983, principal $24,947.98, interest $3,386.85, and attorney fees $4,150.22; Note 2, principal and interest as of April 21, 1983, $47.75. Against Homer Worth the court showed the total amount due as $37,497.16 representing the above plus the unpaid fi. fa. as reported by the affidavit of the bank’s assistant vice-president. We cannot stamp with approval this judgment although it may be correct as it does not appear arithmetically correct. We therefore affirm the judgment with direction that the superior court in simple arithmetic conform its judgment to the uncontroverted evidence for we do not find any fi. fa. in Civil Action Case No. 5787 and cannot ascertain the correctness of the other figures as taken from the plaintiff’s uncontroverted evidence in this case, the affidavit of plaintiff’s assistant vice president.

       Judgment affirmed with direction.

        SOGNIER, J., concurs.

        CARLEY, J., concurs in the judgment only.

        DEEN, P.J., disqualified.

The case mentions a C0de section as authority for the idea that refusing notice of a debt due is the same as receiving notice of the debt due, if it is proven (this is why the notice should always be sent by certified or registered mail, so there is a proven record that it was sent by the holder of the note, and what the disposition was).  Below, please note the last sentence of § 13-1-11(a)(3):

“(3) The holder of the note or other evidence of indebtedness or his or her attorney at law shall, after maturity of the obligation, notify in writing the maker, endorser, or party sought to be held on said obligation that the provisions relative to payment of attorney’s fees in addition to the principal and interest shall be enforced and that such maker, endorser, or party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney’s fees. If the maker, endorser, or party sought to be held on any such obligation shall pay the principal and interest in full before the expiration of such time, then the obligation to pay the attorney’s fees shall be void and no court shall enforce the agreement. The refusal of a debtor to accept delivery of the notice specified in this paragraph shall be the equivalent of such notice.”

Jul 13 15

Juvenile Code Time Limits Must Be STRICTLY Complied With

by merlin

A case I consulted on the other day prompted me to look further into an idea that was bothering me.  Generally, Juvenile Court in Georgia is treated in an informal matter, but many folks don’t realize that it is a HIGHLY organized affair, with its own Code Title and Rules that accompany every action it takes.  As to time limits for the actions that a Juvenile Court may take (especially ones that affect the sacred bond between parent or guardian and child, such as termination), these rules (and time limits for actions) are MANDATORY.  A failure to maintain them precisely – either by acting too soon or too late – will result in dismissal, if it is properly moved for.  The following case cites to another case, decided under an older version of the Code, for exactly that proposition.  It is a tradition which the cases still follow.  This excerpt states that point best:

“Contrary to appellant’s contention, OCGA § 15-11-21(e) does not provide that the petition must be “filed” with the court. Instead, OCGA § 15-11-21(e) provides that “[i]f the child is not so released, a petition under Code Section 15-11-25 shall be made and presented to the court within 72 hours of the detention hearing.” (Emphasis supplied.) Statutes must be given their plain and logical meaning. See Continental Ins. Co. v. Echols, 145 Ga.App. 112, 113, 243 S.E.2d 88 (1978). The phrase, “made and presented to the court,” when given its plain and logical meaning, does not require that the petition be “filed.” If the legislature had intended to require that the petition be “filed” within 72 hours, it could have employed that word. See OCGA § 15-11-26(a). Instead, the clear intent of the legislature was to allow a broader and less formal action than filing to be taken within the specified time limit. “Laws should be construed so as to give effect to the intention of the legislature.” Barton v. Atkinson, 228 Ga. 733, 187 S.E.2d 835 (1972).”

This case may be cited as P.L.A. v. State, 324 S.E.2d 781, 172 Ga.App. 820 (Ga. App. 1984):

Dale C. Ray, Jr., Martin G. Cox, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Richard E. Hicks, George J. Robinson, Jr., Asst. Dist. Attys., for appellee.

        CARLEY, Judge.

        P.L.A. appeals from the juvenile court’s order finding that he committed the offenses of armed robbery, aggravated assault with intent to rob, simple assault, criminal trespass, and carrying a deadly weapon at a public gathering, and adjudicating him to be a delinquent.

        1. Appellant asserts that the trial court erred in denying his motion to dismiss the petition charging him with the commission of various delinquent acts. The contention is that the petition was not filed with the juvenile court within 72 hours of appellant’s detention hearing, which, he asserts, was a violation of OCGA § 15-11-21(e). The ” ‘time limits established by the General Assembly in the Juvenile Court Code are jurisdictional and must be strictly adhered to …. [T]he only available remedy for one denied his constitutional right to a speedy trial is dismissal….’ ” R.A.S. v. State, 156 Ga.App. 366, 367, 274 S.E.2d 752 (1980).

        It is undisputed that appellant’s detention hearing was held on September 30, 1983. A petition alleging delinquent conduct by appellant was drawn on October 3, 1983. See OCGA § 15-11-24. That petition was received by the Chief Deputy Clerk and Calendar Clerk of Fulton County Juvenile Court on October 3, 1983. The evidence is in conflict as to when the petition was actually filed. The record shows that the petition was stamped “filed” on October 7, 1983. However, in his affidavit, the Chief Deputy Clerk stated that “[t]he case was assigned and logged in on October 3, 1983. Summons setting a hearing for October 13, 1983 was issued early on October 4, 1983, and the complete file was taken to [the Clerk of the Juvenile Court] for appointment of a public defender. [The judge] issued an order appointing the [p]ublic [d]efender on October 4, 1983.” Appellant asserts that even if the petition was actually filed on October 4, 1983, when “the complete file was taken” to the clerk of the court, rather than on October 7, 1983, which was the date stamped on the petition, there was still no compliance with the 72-hour deadline.

        Contrary to appellant’s contention, OCGA § 15-11-21(e) does not provide that the petition must be “filed” with the court. Instead, OCGA § 15-11-21(e) provides that “[i]f the child is not so released, a petition under Code Section 15-11-25 shall be made and presented to the court within 72 hours of the detention hearing.” (Emphasis supplied.) Statutes must be given their plain and logical meaning. See Continental Ins. Co. v. Echols, 145 Ga.App. 112, 113, 243 S.E.2d 88 (1978). The phrase, “made and presented to the court,” when given its plain and logical meaning, does not require that the petition be “filed.” If the legislature had intended to require that the petition be “filed” within 72 hours, it could have employed that word. See OCGA § 15-11-26(a). Instead, the clear intent of the legislature was to allow a broader and less formal action than filing to be taken within the specified time limit. “Laws should be construed so as to give effect to the intention of the legislature.” Barton v. Atkinson, 228 Ga. 733, 187 S.E.2d 835 (1972).

        Accordingly, we hold that when the Chief Deputy Clerk and Calendar Clerk received the petition at issue and “logged” it in, it was “presented to the court” within the meaning of OCGA § 15-11-21(e). Since the petition was received within 72 hours after appellant’s detention hearing, the requirement of the statute was met, and the trial court correctly denied appellant’s motion to dismiss.

        2. Appellant also contends that the juvenile court erred in failing to dismiss the petition because the adjudicatory hearing was not held within ten days after the filing of the petition, as he asserts was required by OCGA § 15-11-26(a). However, appellant’s contention was decided adversely to him in J.B. v. State, 171 Ga.App. 373, 319 S.E.2d 465 (1984). “[T]he statute require[s] only that a hearing date be set within ten days and that was done.” (Emphasis supplied.) J.B. v. State, supra at 375, 319 S.E.2d 465. See also Brown v. Fulton County Dept. of Family etc. Services, 136 Ga.App. 308(1), 220 S.E.2d 790 (1975).

        Judgment affirmed.

        BIRDSONG, P.J., concurs.

        BEASLEY, J., concurs specially.

        BEASLEY, Judge, concurring specially.

        As to Division 2 of the majority opinion, I would not leave any room for the argument that the court’s holding meant that so long as the juvenile court entered a date-setting order within 10 days, the statutory limitation would be satisfied. The intent of the statute is that the hearing be held within 10 days after the petition has been filed, if the child is in detention. Otherwise the court loses jurisdiction. 1 Naturally, in order to give notice to all parties who must be assembled for that hearing, the court would have to, in advance of the hearing, fix a date. Thus it goes without saying that the fixing of the date must also be within that 10-day period.

        However, this is not to say that the requirement is rigid and that the hearing must in all cases be held as scheduled within that 10-day period. A continuance may be granted in the sound legal discretion of the court. Brown v. Fulton County Dept. of Family etc. Services, 136 Ga.App. 308, 309(1), 220 S.E.2d 790 (1975); J.B. v. State, 171 Ga.App. 373, 319 S.E.2d 465 (1984). Of course, the rescheduling cannot be arbitrary but must be for a good reason, as the court must keep in the mind the objective of holding the hearing quickly, within 10 days.

        Here, the hearing was originally set on October 4 for October 13, the 10th day after the petition was filed. Then on October 5, “Upon the Court finding it necessary to continue said hearing, good cause being shown, …” the court ordered the scheduled hearing to be continued to October 19.

        Appellant has not shown an abuse of discretion or that there was not good cause for the resetting. Thus there was no error in failing to dismiss the petition for failure to comply with OCGA § 15-11-26(a).

—————

1 Irvin v. Dept. of Human Resources, 159 Ga.App. 101, 102(2), 282 S.E.2d 664 (1981).

 

Jul 8 15

ABA Continuing Legal Education Webinar Notes – “Doing Better at Doing Good”

by merlin

ABA Continuing Legal Education Webinar

7/8/15 – “Doing Better At Doing Good”

Geared to Nonprofits and Legal Service Providers

 

Speakers:        Mary Meg Mcarthy (National Immigrant Justice Center)

And Antonia K. Fasanelli (Homeless Persons Representation Project)

  • Legal representation informs approach!

Strategic Planning for a nonprofit organization

  1. External reality needs to be assessed
  2. Capacity internally to address these needs

 

Must do periodic INTERNAL and EXTERNAL scans (to better identify right place to channel resources).

 

Specifically a standalone 501(c)(3) – have to do strategic plan (3-year typical, but they do a 5-year plan) internally, because it is not a part of a larger parent company (speaking specifically to the Homeless Persons Representation Project here, which is a 501(c)(3)).

 

They actually have a committee to formulate the process for the strategic planning process – need to figure out the process details, such as its overall goals, etc.  This is an ongoing-ish process (developed over 6-12 months); hire a consultant or not (this one does, and they are specific people with genuine expertise in both the process and the kind of organization)

  • Environmental Scan – identify persons/organizations in the area that can best help with meeting goals and objectives of organization

 

MONTHLY REPORTS:

  • Identifying emerging/ongoing issues (this is important for a long-term view)
  • Setting new goals and obstacles that have arisen (i.e. – ankle bracelets in pregnant immigrant mothers) – these are weekly meetings for supervisors/executives, and monthly for staff

-STRATEGIC PLAN versus INTERNAL ACTION PLAN

  • Former is for public release, and latter is private as pragmatic ways to accomplish the former

See the Excel Spreadsheet in the handout materials to verify timeline progress on goals set in advance

 

Additional resources:

Ten Keys to Successful Strategic Planning for Nonprofit and Foundation Leaders by Richard A. Mittenthal: http://www.tccgrp.com/pdfs/per_brief_tenkeys.pdf

 

  1. Evaluating Key Attributes that your Organization Can Bring to the Table

What legal service do you offer in the community and what is your method of delivery (as a UNIQUE substantive thing)?

Good INTENTIONS are not enough; without sufficient knowledge and experience, you may do more harm than good.

 

METHOD OF DELIVERY:

  • Want to have expertise in the PARTICULAR METHOD OF DELIVERY;
  • reaching the particular clients the way that is most efficient, and going to them as needed – respond to the needs of that client!
  • This is as important as having substantive expertise, because this is about practicality, too!

 

  • Identifying and Evaluating Successful Partnerships

Is it ISSUE-BASED or is it FUNDING-DRIVEN?

  • Put the partnership IN WRITING
    • Prevents confusion down the road
    • Assign certain duties to one partner or the other, so that there is no disagreement about roles
    • Memorandum of Understanding – often necessary for grants, etc.
  • Share any and all message information so ALL partners have a CONSISTENT message!!!!
    • Realize that the proper recognition needs to go to the right party and BE SURE IT GETS ACKNOWLEDGED PROPERLY (both formally AND informally)

Rebuilding Partnerships (when trust or common understanding is broken, in some way):

  • Important to address this IMMEDIATELY
  • Don’t want any resentment to be able to FESTER.
  • Must have a mutually-beneficial partnership
    • If it is longer-term, must make sure to check in with third parties that you are mutually coordinating with (to ensure everyone is providing the support they agreed to)
    • Check on progress achieving long-term goals

2.    Persuading and Engaging Funders

  • This is a compelling story; write that story so the funders can see the work in action!
  • Let the funders SEE your work in action

 

Be nimble:

  • Make sure you have SPECIFICALLY identified your expertise in advance, so you don’t commit to doing something BEYOND your expertise; try to identify other resources that CAN do those things (don’t DRIFT in your mission)!
  • Provide accessible outcomes/metrics to funders:
    • A funder might want more accountability; put another person on your staff (such as a social worker or anthropologist looking for the accountability that you indicate)
    • Be strategic about adding development staff overall
      • Do they have the skills needed?
      • Are they actually going to be HELPFUL to the organization, and HOW???

3.     Board Giving

Develop clear expectations with Board Members versus Organization (in terms of WHAT they will give, HOW MUCH, etc.)

  • What if Board Members know other people, or can make in-kind contributions (no money, but time, effort, or resources)
  • Make sure Board Members DO contribute and are ACTIVELY INVOLVED in the organization’s activities
  • Remember – funders WANT TO SEE THAT THE BOARD IS SUPPORTING ORGANIZATION FINANCIALLY

Opportunities for showing appreciation:

  • Happy hours
  • Awards (ex. to young attorneys, etc.)
  • Recognition ceremonies

 

Foundation Funding

  • What are “990”’s?
  • Do not call or contact organization if they made clear on their website that they will not help you – do not EVER submit a “cold proposal”
  • Get to know the program staff YOURSELF.
  • Deadlines: Submit grant reports and grant applications TIMELY.
Jul 7 15

A Personal Plea – ANSWERED

by merlin

The night before last, my cat (who is decidedly a housecat, and has no business being outside in the first place) succumbed to curiosity and slipped outside in our neighborhood in Dahlonega.  I put up flyers, and called around everywhere.  I went to the neighbor’s houses to look for him.

 

Finally, he just showed up.  He wanted to crawl around in the bushes like a wild cat for a little while, but he missed having his food fixed for him, I guess.

 

Thank-you for your concern!

 

mr browne