Lawsuit could set precedent about end-of-life decisions

By Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

Joy Wawrzyniak

An article written by Robert Cribb for the Toronto Star on September 4, 2010; looks at a case that may change how end-of-life decisions are made in Ontario and the rest of Canada.

The article was concerning a lawsuit that Joy Wawrzyniak, a registered nurse from Ottawa, has launched against the Sunnybrook Health Sciences Centre concerning the circumstances related to the death of her father (Douglas (Dude) DeGuerre).

The article states:

As her father lay struggling for breath in a Toronto hospital bed, Joy Wawrzyniak pleaded with doctors to intervene and save his life.

Medical staff instead stood back and allowed the World War II veteran to die, against his wishes and to the shock of his daughter, Wawrzyniak claims in a stunning $1 million lawsuit filed this week against Sunnybrook Health Sciences Centre and two doctors responsible for her father’s care.

While Wawrzyniak and her father, Douglas (Dude) DeGuerre, had repeatedly requested he receive life-saving treatment in case of a medical emergency, doctors unilaterally overruled those wishes without consent or consultation, the lawsuit claims.

Similar cases have occurred in Canada, the fact that Wawrzyniak was the Substitute Decision Maker and has decided to fight back through a lawsuit enables this case to challenge common problems that exist within the Canadian medical system. Dr Kerry Bowman, an ethicist at the University of Toronto was quoted in the article as stating:

“The million-dollar question at the heart of this is whether it is a medical decision or a family/patient decision,”

“That question has largely been unanswered from a legal and ethical perspective in this country.”

There is, however, an emerging consensus that final decisions must be negotiated with families, he says.

“If it turns out you had unilateral decision making against a family’s express wishes without their knowledge, there could be trouble.”

Dr. Michael Gordon, a geriatrician and medical program director of palliative care at Baycrest Centre for Geriatric Care disagreed with Bowman. He stated:

“If you cannot convince the family member, then you still have to make your responsible, professional decision. Otherwise, you’re abrogating your professional responsibility.”

Subjecting a dying person to CPR if you believe there is virtually no hope of survival is, he says, “a terrible way to practise medicine. It's inhumane. It’s an assault.”

Dr. Philip Hébert, chair of Sunnybrook’s research ethics board, who helped craft the hospital’s policy on end-of-life care, declined to comment on the specifics of DeGuerre’s case, with which he had no involvement. Dr Hébert was quoted as stating the general policy as:

"the hospital’s policy does give doctors the authority to make unilateral decisions on care if there is no agreement with patients or their families.

That decision, however, must be properly communicated."

“Our policy requires that even if a decision is made unilaterally, it’s never made without communication with the family and the patient if the patient is capable,”.

“It would certainly concern me if people are making these decisions in the middle of the night without input from anybody else, no matter how right that decision might be. . . . Unfortunately, it’s still true today that people don’t understand these policies and don’t understand how to best make end-of-life decisions.”

The Toronto Star article quotes Wawrzyniak story in this way:

As her father was fading away, Warzyniak made her own desperate attempt to save him, grabbing his respiratory bag and squeezing it while using her other hand to call a hospital operator and beg for help to be sent, she said in the statement of claim and in an interview with the Star.

Wawrzyniak alleges Chapman, one of the doctors standing in the room, said: “Nobody will come.”

No one did.

Soon after, her 88-year-old father, recovering from surgery in which both his legs were amputated, lurched slightly forward and died.

“He wanted to live, He was a fighter. He made it through the war. He said, ‘I haven’t come this far to give up now.’ They were playing God.”

Barry Swadron, the Toronto lawyer representing Wawrzyniak, said her suit could set legal precedent in Canada.

“This could be the thin edge of the wedge in terms of doctors deciding who’s going to live and who’s going to die.”

The case is important because DeGuerre had previously expressed his wishes in the manner required by the law and yet his clearly expressed wishes were ignored. The article stated:

In 2007, he appointed his daughter his substitute decision maker.

The following year, he was admitted to Lakeridge Health in Oshawa.

In meetings with doctors, he and his daughter expressed their wishes that he be treated as “full code” — hospital parlance meaning a patient is to be resuscitated in the event of a cardiac or respiratory arrest, the claim alleges.

A progress note written by his doctor in Oshawa reads: “Reviewed code status and the patient’s daughter and patient said they wished to have the full code continued,” says the statement of claim.

Four months after DeGuerre was transferred to Sunnybrook’s “K Wing,” a care facility for veterans, his condition deteriorated. Surgery was required to amputate his legs above the knee.

While in recovery from the surgery, a report in his hospital chart for Sept. 18 2008 — four days before he died — reads: “(Patient) is now FULL CODE,” the statement claims.

Over the next three days, DeGuerre’s hospital chart includes three more references reaffirming the “full code” order.

On Sept. 22, the day DeGuerre died, the instructions in his hospital chart changed without warning, the claim alleges.

“Unbeknownst to DeGuerre or the plaintiff, and without lawful authority, Livingstone and Chapman changed DeGuerre’s status from full code to do not resuscitate (DNR).”

A copy of the chart for that day includes two notes, apparently signed by the two doctors, giving a do not resuscitate order.

Wawrzyniak, who happened to be visiting her father in what turned out to be his final moments, says she overheard whispers among the medical staff.

“He’s DNR,” she heard a nurse tell a colleague, the claim states.

“Upon hearing the whispered words, (Wawrzyniak) shouted: ‘He’s not DNR, he’s a full code. I am his daughter and his power of attorney for care. Please help my father,’ ” says the claim.

Chapman, the suit alleges, told Wawrzyniak, “This is for his own good.”

Wawrzyniak stated:

“Are we going to take people’s rights away and let doctors decide who lives and dies? It was only hours after we discussed his code that they turned around and reversed it.”

Kerry Bowman, the University of Toronto ethicist was further quoted as stating:

In the hospitals where he has worked, a family request for resuscitation, even at the time of cardiac arrest, is always respected.

“The assumption is that the family is the best opportunity to get to the wishes and values of the patient, and if you have a child, an offspring of this patient, saying this is what he would want... then that is what would be done.”

Bernard Dickens, professor emeritus of health law at U of T disagreed. He stated:

“If the patient’s life cannot be saved in a meaningful way and if intervention would deny resources that would benefit other patients... then the doctor is justified in clinical judgment to withhold treatment,”

“Clinical judgment is not negotiated with patients.”

Dr. Neil Lazar, a critical care physician in Toronto views these decisions within a set of competing medical cultures. He stated:

“On one side, there’s the shared doctor-patient decision-making strategy. On the other side is the more medical, more paternalistic approach.”

For patients and families who end up in situations where their wishes are not being fully considered, there’s often little they can do, he says.

“The patient and the family may feel like they are trapped in the system. They have to rely on landing in the right spot initially. It can be very hard to navigate in the middle of a situation.”

Dr. Howard Brody, a medical ethicist and director of the Institute for the Medical Humanities at the University of Texas in Galveston stated that he believes these situations are often related to poor communication. He stated:

“If something is done that is in some way surreptitious or behind the scenes, of course that’s going to destroy any possibility for family trust in the physician and demolish any option for communication. I don’t think that’s a defensible kind of strategy.

Doctors who feel their professional integrity prevents them from following the patient’s or family’s wishes are ethically obliged to be upfront with the family."

Wawrzyniak said this was not the circumstance. Her concluding remarks were:

That never happened in the case of her father.

She says she filed a complaint with the Ontario College of Physicians and Surgeons that did not result in disciplinary action. The matter is currently under appeal, she says.

The 61-year-old says she understands her father was elderly and wouldn’t live forever. And she wouldn’t protest his death if reasonable steps had been made to help him, she says.

“I’m not unreasonable. But to cut him off because he was weak and needed help and support with his breathing? I couldn’t believe this was happening. He died before my eyes and they just stood there.”

The reality is that many bioethicists have redefined what is known as futile care. They have decided that even if a treatment is beneficial for a patient that if they have deemed the patient to be without benefit "not worth living" then they will remove all treatment, even if the treatment is better defined as basic care.

Futile care theory abandons the person, because their lives are deemed to expensive to preserve or not worthy of life.

Link to the article in the Toronto Star: http://www.thestar.com/news/gta/article/856741--lawsuit-could-set-precedent-about-end-of-life-decisions