Judge dismisses lawsuit against doctors
Toronto physicians had been accused of ignoring man’s wish to stay alive
Two doctors were acting within the rules and providing adequate care to an elderly patient when they imposed a “do not resuscitate” order on the man without notifying him or his substitute decision maker, an Ontario judge ruled this week.
Ontario Superior Court Justice Peter Cavanagh defended the actions of Dr. Donald Livingston and Dr. Martin Chapman as he dismissed a $2.2-million lawsuit against the two physicians who treated Douglas DeGuerre.
“Dr. Livingstone and Dr. Chapman testified that the DNR order was made ... based upon their clinical judgment that CPR would almost certainly not benefit Mr. DeGuerre and would only cause harm,” Cavanagh wrote. “I am satisfied that the (doctors’) decisions ... were not only for health related purposes generally but, particularly, for a preventive purpose.”
The suit, filed by Ontario resident Joy Wawrzyniak, accused the doctors of negligence and malpractice in the death of her father, an 88-year-old veteran of the Second World War.
Wawrzyniak said that while her father was contending with several serious conditions at the time of his death in September 2008, he had repeatedly expressed a wish to keep pursuing treatments and had empowered her to continue advocating for him.
Her suit alleged Livingston and Chapman changed her father’s status from “full code’’ — meaning make all reasonable efforts to keep the patient alive — to “do not resuscitate,” without asking her or her father.
Her lawyers argued the case was an instance of doctors “playing God,” but the physicians said they changed DeGuerre’s status after reviewing his condition and determining he had little chance of survival.
The doctors also said they left a voicemail for Wawrzyniak but could not connect with her directly before DeGuerre died.
Cavanagh said the physicians made an appropriate decision about DeGuerre’s health and took sufficient steps to communicate their actions to his daughter.
“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.
“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.”
Lawyers representing Livingston and Chapman said they were grateful for the ruling, which they described as “thoughtful.”
Wawrzyniak’s lawyer, Marshall Swadron, said he was still reviewing the decision.
Cavanagh’s ruling found both sides largely agreed on DeGuerre’s medical history in the months before his death, noting the man had diabetes, kidney failure and gangrene, among other conditions.
Both parties also agreed DeGuerre had at one point signed a document saying he did not wish to be resuscitated if death seemed imminent. But Wawrzyniak’s statement of claim asserted that her father changed his mind in the following months and repeatedly declared his desire to have a full code status.
Some of those declarations took place once DeGuerre was admitted to Toronto’s Sunnybrook Hospital in a wing designated for veterans. Cavanagh said Chapman wrote a note in DeGuerre’s file indicating his death was imminent and his condition irreversible.
Court heard Chapman consulted with Livingston and another physician, who shared his assessment. He then wrote the do not resuscitate order, which Livingston co-signed.
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.”