‘Interloper’ stirs end-of-life saga

Lawyer’s intervention sparked emotional debate in Ontario case

Who should have the right to intervene when it comes to making decisions about our end-of-life medical care?

Our loved ones, we all hope. Our doctors, certainly. But what about an acquaintance — a former lawyer, for instance?

That is the very unique and emotional situation that arose earlier this month as an Ontario man lay on his hospital death bed.

The saga around the final days of 53-year-old Fernando Ferreira made saying goodbye all the more painful for his family, according to those who witnessed it, writes

Tom Blackwell, and stirred debate about who should speak for the dying.

Ferreira had suffered what doctors believed was irreparable brain damage as a result of cardiac arrest. After three days in hospital, his common-law wife agreed to have him taken off life-support and to have his organs donated. Then came the court injunction. A lawyer who had represented Ferreira in an unrelated car crash convinced a judge to temporarily halt the family’s plan.

Lawyer Georgiana Masgras argued that Ferreira had said he never wanted to die like a friend who had terminal cancer and had been cut off from food in his final days, a relatively common palliative-care practice.

“I was making a case for Mr. Ferreira to remain alive because I’m his lawyer and as an officer of the court I do think that it’s my duty to ensure that all his options are being properly explored,” Masgras said, in explaining his actions.

“There shouldn’t be any rush. We’re talking about somebody’s life.”

Eventually, another judge would side with the family’s wishes.

Lawyer Mark Handelman, one of the country’s leading experts in the area, said he has never heard of an unrelated third-party intervening in such a way.

“They (family members) have come to grips with the situation and made what they believe to be the right decision,” he said, “and now there’s an interloper.”

Fernando Ferreira had been in hospital for three days when his family made the heart-wrenching decision. The 53-year-old suffered a cardiac arrest, causing what doctors believed was irreparable brain damage and leaving him unconscious. His common-law wife agreed to have Ferreira taken off life support and his organs donated for transplant when he died.

But just before that was to happen, an apparently unprecedented court ruling put a halt to the process.

Georgiana Masgras, a lawyer who represented Ferreira in an unrelated car-crash case and who worried the family was acting rashly, convinced a judge to order a stop to the plan.

The surprise ruling on July 8, a Saturday, sparked a flurry of legal activity as doctors at St. Mary’s General Hospital in Kitchener, Ont., warned the delay could render their patient’s organs unusable. Finally, that Sunday, another judge agreed to overturn the original injunction.

The strange sequence of events was “devastating” for Ferreira’s relatives, said anesthetist Dr. Chris Hinkewich, who oversaw his treatment.

“They gathered on Saturday (some coming from the United States) to say goodbye to a loved one,” he said in an affidavit.

“Instead, they have been stuck in limbo as a result of the actions of Ms. Masgras and as a result of the order,” the physician said. “They are confused, tired and do not understand how someone with no connection to their family can intervene in such a manner. They are also very upset that the opportunity for organ donation may be lost.”

Lawyers for the hospital and doctors involved said they could not comment on whether the organs were successfully harvested, or any other aspect of the case. Ferreira’s wife, Kim, also declined to comment, saying it was “not a good time.”

Canadian courts have seen a series of bitter disputes over end-of-life care in the last decade or so, but most involved clashes between family members and medical staff — or among family members — about when to stop treatment.

Lawyer Mark Handelman, one of the country’s leading experts in the area, said he has never heard of an unrelated third-party intervening in that way.

“It’s hugely unfortunate for everybody involved,” he said. “They (family members) have come to grips with the situation and made what they believe to be the right decision, and now there’s an interloper.”

Masgras, however, vigorously defended her actions, even as she admitted they were unusual.

She cited the evidence of Omar Irshidat, owner of the rehabilitation clinic that treated Ferreira after his crash in December. Irshidat said in an affidavit his client told him repeatedly he never wanted to die like his friend Peter, who had terminal cancer and was cut off food in his final days, a relatively common palliative-care practice to reduce discomfort.

“I was making a case for Mr. Ferreira to remain alive because I’m his lawyer and as an officer of the court I do think that it’s my duty to ensure that all his options are being properly explored,” Masgras said.

Irshidat also mentioned a psychology report that noted Ferreira’s relationship with his wife had deteriorated since the crash. Masgras questioned whether the wife was the most appropriate substitute decision-maker.

But Handelman said provincial law makes it clear that a spouse assumes that role, with other relatives filling in according to a set hierarchy. That situation would change only if Ontario’s Consent and Capacity Board awarded power of attorney to someone else, the lawyer said.

In this case, 25 loved ones had gathered at the hospital, all agreeing on what to do.

Ferreira, an immigrant from Portugal on workers’ compensation since an incident on his brick-laying job 20 years ago, suffered from acute pain and severe depression following the crash, the psychologist’s report stated.

He was admitted to St. Mary’s on July 3. Patient records state he had been out “gambling” the night before and got in an argument with his wife. The next morning she found him lying on the floor, but breathing. When he didn’t get up later, the family called an ambulance.

His heart had stopped and though it started again, he suffered brain damage from lack of oxygen, said Hinkewich’s affidavit.

On July 6, informed Ferreira was being kept alive by “multiple forms of life support” and had a “guarded” prognosis, the family agreed to the withdrawal of those supports, the document says.

The act was to take place on July 8, by which time Hinkewich felt “there was no prospect” Ferreira would ever recover. But the night before, Justice Harrison Arrell of Ontario’s Superior Court issued an order that the hospital was “forbidden from withdrawing Mr. Ferreira’s life support.”

Lawyers convinced Justice Frank Marrocco of the same court to hear an appeal the next day by teleconference. As the hearing unfolded, they learned Ferreira had become brain-dead.

Marrocco said the wife was the substitute decision maker, while other family members and medical staff unanimously supported taking Ferreira off life support.