Doctors watchdog reverses ruling after being ‘slapped down’

Sunnybrook physicians refused family’s wish to continue treatment of 88-year-old man hours before his death in 2008

After twice exonerating two Sunnybrook doctors for their conduct in a controversial 2008 end-of-life case, Ontario’s medical watchdog has had what experts are calling an unprecedented change of heart.

The College of Physicians and Surgeons has issued written cautions against Drs. Martin Chapman and Donald Livingstone after previously rejecting a formal complaint and two appeals by the daughter of a man they treated.

“Dr. Chapman and Dr. Livingstone’s conduct was not completely appropriate, and some action is necessary,” reads the latest ruling by the college’s Inquiries, Complaints and Reports Committee, obtained by the Star.

“This complaint has focused their attention on the need to educate themselves and to consider how they might handle a similar situation differently in the future.”

Joy Wawrzyniak filed the complaint and appeals against the two physicians after the death of her father, Douglas DeGuerre, at Sunnybrook on Sept. 22, 2008. The 88-year-old man had wanted to be given every chance at life with a “full code” designation on his chart, Wawrzyniak says.

That wish was ignored when physicians unilaterally changed his status to “do not resuscitate” just hours before he entered into cardiac arrest.

Medical staff looked on as she called out for their help to save him, Wawrzyniak alleged in a 2009 complaint to the college and in a $1-million civil suit against Chapman and Livingstone.

“In our view, Drs. Chapman and Livingstone failed to properly communicate with Ms. Wawrzyniak in this case when they made the decision that it was appropriate in the circumstances to change her father’s status,” reads the college committee’s latest ruling.

In two previous reviews of the case, the college ruled the physicians conducted themselves properly and concluded no further action was required. The Health Professions Appeal and Review Board (HPARB) took a differing view in two separate appeal rulings that both found the college’s response to be “unreasonable.”

“This is quite possibly the first time that the college has had a decision sent back to them twice to get it right in law,” says Mark Handelman, a Toronto health law lawyer and one of Canada’s leading experts in end-oflife decisions. “They got told they were wrong. The perception it creates is that doctors protect doctors. They were slapped down twice, and the third time they were obliged to recognize their error of law . . . I’m still shaking my head.” Erica Baron, the lawyer representing the two physicians, declined to comment on the college’s findings Tuesday.

In submissions to the college, the doctors argued they “did not act unlawfully” in writing a DNR order for DeGuerre, that they were not obliged to resuscitate him and that doing so would have “exacerbated” his suffering.

Written cautions against a physician are kept secret. The college does not include them on a physician’s public record.

While this third college ruling marks a rare change of opinion, it doesn’t go nearly far enough for Wawrzyniak, who wants the doctors referred to a formal and public disciplinary hearing.

“They still just don’t get it,” she said in an interview. “The whole issue is consent. They’re violating the substitute decision maker’s rights and taking them away. And when they get caught, they make excuses that he would die anyway. It’s terrible.”

Wawrzyniak is considering a third appeal seeking a tougher ruling.

“How can physicians be expected to obey the law when their own regulatory body is willing to excuse a different approach?” asks her lawyer, Barry Swadron.

A college spokesperson declined to comment on the case or even con- firm that written cautions have been issued to the two physicians.

This case, first reported in a 2010 Star investigation, fits into a much broader public debate about the often vague rules and intractable conflicts that emerge between medicine and personal convictions at the end of life.

As DeGuerre struggled to breathe, Wawrzyniak, a career nurse, says she begged medical staff to assist her in saving his life in believing the “full code” status remained on his chart. Instead, she says they stood back and did nothing.

She says she learned the next day that physicians changed the code only hours before DeGuerre died.