Monday, August 26, 2019

Judge dismisses lawsuit against doctors who withheld life-saving treatment, without consent, from a veteran.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

Joy Wawrzniak, DeGuerre's daughter.
An 11-year battle to obtain justice for a veteran who was denied life-saving treatment against his wishes and without the consent of his daughter, the legally appointed power of attorney may have ended without justice.

On September 22, 2008, Douglas DeGuerre died after he was down graded from full code to DNR without his consent or consulting his family.

On Friday, August 23, 2019 Ontario Superior Court Justice Peter Cavanagh dismissed the $2.2 million lawsuit against Dr Donald Livingston and Dr Martin Chapman by DeGuerre's daughter, Joy Wawrzyniak.

The Canadian Press article by Michelle McQuigge reported that Justice Cavanagh decided that the physicians made an appropriate decision about DeGuerre's health and took sufficient steps to communicate their actions to his daughter. McQuigge reported:
"Should Dr. Chapman and Dr. Livingstone have taken different or additional actions to try to reach the plaintiff to discuss the DNR order with her after it was made? Perhaps," Cavanagh wrote, noting they could have stressed the urgency of the situation or provided personal mobile numbers. 
"Without the benefit of hindsight, however, I am unable to conclude that actions taken by Dr. Chapman and Dr. Livingstone to communicate with the plaintiff about the DNR order would not be acceptable behaviour for a reasonably prudent physician in the same circumstances."
According to McQuigge:
The court ruling said Chapman then left a voicemail for Wawrzyniak in which he said he wished to discuss her father's condition, but made no mention of the newly implemented order and indicated "nothing has particularly changed." 
Shortly after receiving the voicemail, court heard Wawrzyniak went to the hospital and found her father struggling to breathe.
She summoned hospital staff who tried to help, but court heard that when Livingston arrived he told Wawrzyniak that resuscitation would be of little benefit and only cause suffering. Chapman asked staff to stop trying to revive DeGuerre. 
Wawrzyniak, a registered nurse, tried administering help herself, but was unsuccessful and DeGuerre died a short time later. She discovered the next day that her father's status had been changed.
Justice Cavanagh erred by ignoring the fact that Chapman and Livingston made the decision without consultation. This was not an emergency situation where there is no time to consult the power of attorney.

Wawrzyniak has continued her pursuit of justice for 11 years. In September 2014 the Health Professions Appeal and Review Board found that the doctors violated the law by unilaterally imposing a do-not-resuscitate order on Douglas DeGuerre against his family’s wishes.

The decision by Justice Cavanagh dismissed the lawsuit against Dr's Chapman and Livingston.
The doctors made the decision against the wishes of DeGuerre and his daughter, who was the legally appointed power of attorney. Even if physicians disagree with the family, the rights of the individual and their family should supercede the ideology of the doctors. Further to that, in Ontario, the Consent and Capacity Board exists to determine disputes between physicians and families.

Thank you Joy Wawrzyniak for continuing the battle for justice.


Jos Welie said...

I am hesitant to contribute since I know not enough about this specific case. But I think it is important not to lose sight of the fact that it is treatments that require a consent, and if consent is not given (and may also not be presumed, as in true emergencies), treatment may not be initiated (nor continued). Insisting on consent for NON-treatment makes no logical sense.

CPR falls in the category of interventions for which treatment may be presumed but only in true emergencies. In all other situations, CPR is like any other treatment for which consent must be given BEFORE it can be performed, not before it can be forgone.

Secondly, the right to consent is a negative right, a right to refusal; it is not a positive right, an entitlement to whatever treatment one wants. The health care professional has an independent duty -- while carefully considering the patient's needs, preferences, and wishes -- to determine what treatment will be an effective response to those needs. If a physician determines, based on a careful diagnostic analysis, that immunotherapy will not work for cancer patient X, she does not need to obtain the consent of patient X to withhold the immunotherapy. She should not offer it in the first place and then the consent question never even arises. And again, there is no principal reason why CPR does not require such an independent medical judgment by a physician.

I will readily grant that we ought to be very concerned about the particular manner in which judgments about medically indicated versus futile treatments are reached. But we do not want to end up either viewing health care as a free market commodity and health care providers as a salespersons.

Sara Buscher said...

When a physician takes someone as a patient, the physician owes the patient "the standard of care." When a person is in the hospital, the hospital staff doctors are in a physician-patient relationship with hospital patients they are attending. Part of this duty is to obtain informed consent to treatment options available for the patient's diagnosis. The physician must offer those options and then the patient can agree to a treatment or refuse treatment. In the absence of an informed decision to refuse treatment, if the patient as a life-threatening emergency, then the law says the patient is presumed to consent so that the physician can provide treatment.
This is the law in USA and each of the 50 states.

In this case, there was no informed consent process leading to the DNR order which then overrode the patient's right to treatment in a life-threatening emergency.

Sara Buscher, Attorney

Unknown said...

Mr./Ms. Welie,
Isn't is true that in the absence of an explicit DNR order a patient is supposed to receive CPR and other adjuncts to it (shocks to the heart, medicine to raise blood pressure) until it clearly fails? Otherwise, what it a patient to do? Put a large tattoo on his/her chest..."Always Resuscitate!" "CPR 100% of the time!" Why should a doctor use his or her subjective judgment about who is worthy of saving without pulling out all the stops without clear evidence of a patient's desire not to do so? Financial considerations or a quality of life that a physician might not deem acceptable to him or herself should never apply. Always err on the side of life.

Porter Malouf said...

The physician must offer those options and then the patient can agree to a treatment or refuse treatment. In the absence of an informed decision to refuse treatment, if the patient as a life-threatening emergency, then the law says the patient is presumed to consent so that the physician can provide treatment.