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.

• Lawsuit could set precedent about end-of-life decisions.

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.

• Who decides when you die?

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.

EPC demands in-depth investigation into murders at care homes in Canada.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

Elizabeth Wettlauffer arrested.

Southwestern Ontario is shocked by the revelation of allegations that a nurse was responsible for 8 deaths in care homes in Woodstock and London Ontario.

As shocking as it is that Elizabeth Wettlaufer, 49, of Woodstock; has been charged with 8 counts of first degree murder in what is being defined as possibly the worst case of a seriel killer in Canadian history, we need to demand that an in-depth investigation be done into every care home in Canada, especially now that euthanasia and assisted suicide are now legal.

We should mourn the deaths of James Silcox (84), Maurice (Moe) Granat (84), Helen Matheson (95), Gladys Millard (87), Mary Zurawinski (96), Helen Young (90). Maureen Pickering (79) of Woodstock Ontario and Arpad Horvath (75) who was a resident at Meadow Park nursing home in London, but we must also recognize that these are a group of many deaths caused by people who falsely consider themselves angels of mercy in our medical system.

As Executive Director of the Euthanasia Prevention Coalition, I have received calls from people who are convinced that their loved may have been prematurely killed in a hospital or nursing home. These cases are very frustrating because it is nearly impossible to prove that such an act has occurred and the financial and personal costs associated with gaining justice is prohibitive.

Consider Joy Wawrzyniak who has been fighting for more than 6 years to gain some justice in the death of her father, Douglas DuGuerre. What about the case of Annie Farlow who died under suspicious circumstances at 80 days of age? Should we shrug off Annie's death because she was born with significant disabilities?

Cases of doctors or a nurse intentionally causing the death of a patient are not uncommon.

Several cases have been reported in the media in the past such as the death of David Gray, in which the doctor received a nine month suspended sentence for negligence causing death.

Several medical professionals who killed their patients, include: Dr. Harold Shipman, Charles Cullen, Dr Virginia Soares de Souza, Aino Nykopp-Koski and Dr. Michael Swango.

A recent NEJM study on the practice of euthanasia in the Flanders region of Belgium found that 1.7% of all deaths (more than 1000 deaths) were hastened without explicit request in 2013. As stated in the Euthanasia Deception documentary.

The Lancet study analyzing the Netherlands euthanasia experience found that there were 310 hastened deaths without explicit consent in 2010 in the Netherlands. 

The Euthanasia Deception documentary shared the story of Hendrik Reitsma who was robbed of 3 years of life with his Granddad in the Netherlands.

It is not safe to give doctors, or others, the right in law to cause death of their patients.

When a nation legalizes euthanasia, it gives medical professionals, who were already willing to kill their patients the legal right to proceed.

Unless every Canadian Province does an in-depth research study into the deaths at care institutions, we will never know how many intentional killings occur yearly in our country.

Toronto hospital illegally imposed ‘do-not-resuscitate’ order against wishes of dying man’s family: medical board

By Alex Schadenberg

Executive Director - Euthanasia Prevention Coalition

In a rare display of disagreement, the Health Professions Appeal and Review Board rejected a decision by the Ontario College of Physicians and Surgeons and provided some Justice for the family of Douglas DeGuerre, who died on September 22, 2008, after doctors at Sunnybrook Hospital in Toronto unilaterally imposed a do not resuscitate order against the wishes of DeGuerre and his family.

Joy Wawrzyniak

The Appeal and Review Board decided that:

Doctors at a major Toronto hospital violated the law by unilaterally imposing a do-not-resuscitate order on Douglas DeGuerre against his family’s wishes.

According to the National Post:

DeGuerre died from cardiac arrest at Sunnybrook Health Sciences Centre as his daughter, Joy Wawrzyniak, frantically tried to convince medical staff to save him, and health workers declined to help the severely ill war veteran. 

In a case that dramatizes the debate over who has ultimate power in such cases – doctors or patients’ families — Ms. Wawrzyniak said she had only just learned that the “full code” response to emergencies she had requested on her father’s behalf had been over-ruled by a do-not-resuscitate (DNR) order, which meant CPR would not be attempted during cardiac arrest. 

Ms. Wawrzyniak, a nurse, said Wednesday that Mr. DeGuerre, 88, was struggling to breath when she entered his room the day he died in 2008. 

“My father said to me, ‘I’m drowning, I’m drowning.’ Those were his last words,” she recalled. “I grabbed the oxygen bag, and I tried to help my father while they all stood there and did nothing … I just couldn’t believe it.”

Ontario's Medical Regulator had twice rejected Ms. Wawrzyniak's complaint against the doctors at Sunnybrook hospital. The appeal and review board directed the Ontario's medical regulator to re-open disciplinary proceedings against the Sunnybrook doctors The appeal and review board stated:

“Although the circumstances in this case are exceptional, the misconduct alleged is serious,” the board said in its recent ruling. 

“The importance of this complaint transcends the conduct of the [doctors]. It is incumbent on the College to ensure that doctors understand their legal obligations … The public must have confidence that [consent laws] are understood and respected.”

October 18, 2013 the Supreme Court of Canada decided in the Rasouli case that:

Doctors must obtain consent from patients or substitute decision-makers before withdrawing life-sustaining treatment where such a decision is anticipated to result in the death of the patient. When a disagreement exists between a doctor and a patient or substitute decision maker, the case must be brought to the consent and capacity board for a decision.

The Euthanasia Prevention Coalition (EPC) intervened in the Rasouli case at the Ontario Court of Appeal and at the Supreme Court of Canada. EPC is concerned about consent to treatment issues since the euthanasia lobby is pushing to define euthanasia as a form of medical treatment, and because physicians should not be given the power, in law, to decide who lives and who dies.

W5 produces exposé on the Rasouli case.

By Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

CTV W5 produced an exposé on the Rasouli case and other cases where the doctors have unilaterally and without consent decided to withdraw treatment from a patient.
http://www.ctv.ca/CTVNews/TopStories/20120203/w5-life-or-death-investigation-120204/

The Rasouli case is heading to the Supreme Court of Canada to decide - "Who has the right to decide." The doctors are claiming that they have the unilateral right to withdraw life-sustaining treatment from a patient without consent of the patient or the substitute decision maker, who are usually the family.

Joy Warwrzyniak

The W5 show also spoke to Joy Warwrzyniak who launched a case after witnessing the doctors at Sunnybrook hospital in Toronto withdraw the ventilator from her father Douglas DeGuerre against his wishes and against her consent. Warwrzyniak was legally the substitute decision maker for her father.

The Euthanasia Prevention Coalition successfully intervened at the Ontario Court of Appeal in the Rasouli case. We argued before the three judge panel that withdrawing life-sustaining treatment represented a change in the "treatment plan" and according to the Ontario law, consent is required in order to change the "treatment plan."

When reading the unanimous decision of the Ontario Court of Appeal it is clear that they agreed with the position of EPC when they stated that consent is required before life-sustaining treatment can be withdrawn.

Hassan Rasouli

The Rasouli case will determine whether or not doctors are required to obtain consent before withdrawing life-sustaining treatment.

The W5 examined the issues concerning - who legally has the right to decide to withdraw life-sustaining treatment. It was interesting that the doctors and the hospital were unwilling to make any comments on the show.

Who decides when you die?

By Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

Joy Wawryzniak

The case of Joy Wawrzyniak who is sueing the Sunnybrook hospital based on the death of her father Douglas DeGuerre’s. DeGuerre had legally assigned his daughter, Joy Wawrzyniak, as his Substitute Decision Maker (SDM) and his Power of Attorney for personal care document stated he wanted full code medical treatment.

On September 4, the Toronto Star published the article on the Wawrzyniak case.

Link to my comments on this case: http://alexschadenberg.blogspot.com/2010/09/lawsuit-could-set-precedent-about-end.html

Over the past few days there have been a significant number of letters printed in the Toronto Star about this issue. You need to know that the paper picks and chooses the letters it publishes, therefore the letters that were published represent a cross-section of the letters that were received.

Here is a cross-section of the comments that have been published in the Toronto Star:

Dr. Bernard Dickens says, “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.”

This seems to be the policy prevailing in Canadian hospitals, making elderly patients fearful of being hospitalized because tests and treatments will be considered in the context of their cost effectiveness and age appropriateness.

Ageism doesn’t appear to matter in the medical field, and a tragic proof was Douglas DeGuerre’s dying plight trying to breathe, with no doctors willing to help him.

I wish Joy Wawrzyniak success in her litigation. It may be too late for her father, but it could help save countless lives. 

Jaime Oksemberg, Toronto

“Physicians are not obligated to provide treatment that will almost certainly be of benefit to the patient” (2006 CPSO End of Life Policy).

What is a benefit and who defines it? The ambiguity of this definition allows doctors to use their clinical judgment along with their own value judgment to determine whether a patient is worthy of treatment. Every vulnerable patient is at risk.

Barbara Farlow, Mississauga

My blood boiled as I read this article. In December 2009 my elderly mother was admitted to Sunnybrook Hospital. My mother also had a strong will to live. It was very clear from the start that the attending physician had “written her off” due to her age and co-morbidities and had no interest in optimizing her medical condition.

It was only due to a combination of both physician family members and other persistent family members who screamed and begged for treatment that the attending physician and his team begrudgingly gave it (by then, in an untimely manner).

The experience has haunted our family and left deep, lasting scars. It is frightening that his approach is being taught to residents and medical students on his team who follow him at this renowned teaching hospital.

Decisions about the extent of medical care need to be discussed with the patient and the family, and decisions to not provide active medical treatment cannot be a unilateral physician decision. Otherwise, this bodes extreme danger for the future medical care of our aging population.

Carolyn Telner, Toronto

Your article about Ms Wawrzyniak’s horrifying experience in Sunnybrook conjured up the demons of the past in me. A mere 65 years ago, doctors in my home country decided whose life is not worth living and who should not raise children. Doctors, assisted by nurses and social workers, “euthanized” and sterilized tens of thousands of people they, with their professional expertise, deemed too ill to live, too disabled to raise children or in general too much of a burden for society. ...

...Doctors may make suggestions — even recommendations — but certainly not decisions. This is entirely up to the patient. Or would you like to have your hairdresser decide what haircut is right for you, or let your real estate agent buy a house he finds appropriate for you?

The idea that doctors decide who is worthy of their help and who isn’t would make hospitals a scary place. Better not contradict your doctor or you might regret it later?

And think about the influence of economic circumstances in this equation. Better switch off that senior over there so we can use our resources more economically?

We must fight this at the beginning so this inhumanity can never again get a hold in our societies. If Ms Wawrzyniak needs support for her legal fight, I would gladly donate. And hope these arrogant doctors get a well-deserved slap on their hands.

Tom Wiedemann, Toronto

In 1996 the Ontario legislature passed the Health Care Consent Act, which clearly sets out that the wishes of a person are to be followed by health professionals, and that substitute decision makers are obliged to follow those wishes as well.

The legislation provides a mechanism for physicians to challenge a person’s decision to determine if it is appropriate. The legislation does not envisage physicians making unilateral decisions. The Consent and Capacity Board of Ontario was entrusted with the duty to adjudicate these issues and it has done so for the past 16 years, including many end-of-life issues.

People in this situation should know their rights and physicians should be more aware of the mechanisms in place to deal with these complex and emotional issues.

Theodore Nemetz, Barrister and Solicitor, Former lawyer member and past chair, Consent and Capacity Board

Considering the recent case of Joshua Kulendran Mayandy who was denied fluids and nutrition, even though he was not otherwise dying, and the hospital and the lawyers pressured the potential SDM was accepted only because he succumbed to the demand that no IV fluids, nutrition and medicine be provided to Joshua.

My biggest questions are related to definitions and false legal precedents. Since when was it in the "best interests" of the patient to deny them any medical treatment, including fluids, hydration and or oxygen, when they are not otherwise dying?

Link to the comments: http://www.thestar.com/opinion/letters/article/858858--decisions-about-dying

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