36-3205. Health care providers; immunity from
liability; conditions
A. A health care provider who makes good faith health care decisions in reliance on
the provisions of an apparently genuine health care directive or the direction of a
surrogate is immune from criminal and civil liability and is not subject to professional
discipline for that reliance.
B. Health care provider acts and refusals to act made in reliance on the provisions
of a health care directive or directions of a surrogate are presumed to be made in good
faith. A court shall base a finding of an absence of good faith on information known to
the provider and shall enter its finding only after it has made a determination of bad
faith in written findings of fact based on clear and convincing evidence of improper
motive. For the purposes of this subsection, "good faith" includes all health care
decisions, acts and refusals to act based on a health care provider's reasonable belief
of a patient's desires, a patient's best interest or the directives of a patient's
surrogate if these decisions, acts or refusals to act are not contrary to the patient's
express written directions in a valid health care directive.
C. A health care provider is not subject to criminal or civil liability or
professional discipline for any of the following:
1. Failing to comply with a decision or a direction that violates the provider's
conscience if the provider promptly makes known the provider's unwillingness and promptly
transfers the responsibility for the patient's care to another provider who is willing to
act in accordance with the agent's direction.
2. Failing to consult a disabled or incapacitated patient's surrogate if the
surrogate cannot be contacted after the health care provider has made a reasonable effort
to do so or if an emergency situation does not provide the health care provider with
sufficient time to locate and consult with the surrogate.
3. Relying on a court order concerning a patient.
4. A guardian's failure to comply with section 14-5303, subsection B relating to
the requirement that the petition include a statement that the authority granted to the
guardian may include the authority to withhold or withdraw life sustaining treatment,
including artificial food and fluid.
D. This section does not relieve a health care provider from civil or criminal
liability or prevent a provider from being subjected to professional disciplinary action
for the provider's negligent treatment of a patient if the negligence is unrelated to the
provider's reliance on a health care directive, directions from a surrogate or the
recommendations of an institutional ethics committee pursuant to section 36-3231.
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