Toronto doctors sued for allegedly ignoring veteran's wishes to stay alive

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Michelle McQuigge The Canadian Press

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TORONTO -- A civil trial is set to begin this week for two doctors accused of ignoring an elderly man's wishes to stay alive and allegedly imposing a "do not resuscitate" order without consulting him or his substitute decision-maker.

The $2.2-million suit against Dr. Donald Livingston and Dr. Martin Chapman accuses the physicians of negligence or malpractice in the death of Second World War veteran Douglas DeGuerre.

The suit, filed by DeGuerre's daughter Joy Wawrzyniak, alleges the doctors overruled the family's decision to keep seeking treatment for DeGuerre's many serious illnesses.

It alleges the doctors changed DeGuerre's status from "full code" -- meaning make all reasonable efforts to keep the patient alive -- to "do not resuscitate," without asking DeGuerre or consulting Wawrzyniak, who was tasked with making decisions on his behalf.

Lawyers representing Livingston and Chapman did not comment on the upcoming civil trial, which is set to start Monday.

Wawrzyniak's attorneys said the case is significant as it can warn physicians they have no right to "play God."

"We are taking this case to trial to make it clear to physicians that they are required to obtain express consent before writing a DNR order," lawyer Barry Swadron said in a statement.

The unproven statements of claim and defence largely agree on DeGuerre's medical history in the months before his death.

Both parties said the 88-year-old had several serious conditions in 2008, including diabetes, kidney failure and gangrene.

He signed a document in November 2007 appointing his daughter as the person to make medical decisions on his behalf should he be unable to do so.

At the same time, both parties agree DeGuerre signed a document saying he did not wish to be resuscitated if death seemed imminent.

Wawrzyniak's statement of claim asserts, however, that DeGuerre 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, the statement said.

Livingston, DeGuerre's primary physician on the veteran's wing, said DeGuerre would need to have both his legs amputated above the knee. The statement of claim said he had a discussion with Wawrzyniak, who said doctors were to attempt to resuscitate her father if he had a heart attack during surgery.

DeGuerre's full code status was reaffirmed after he successfully pulled through the procedure, the claim said, adding notations on his chart accurately reflected his wishes.

Days later on Sept. 22, however, the suit alleged Livingston and Chapman took matters into their own hands.

"Unbeknownst to DeGuerre or the plaintiff, Livingstone and Chapman altered DeGuerre's plan of treatment ... by changing his status from full code to do not resuscitate," the claim alleged. "The change in DeGuerre's code status to DNR was made ... without the consent of DeGuerre or the plaintiff."

The suit alleged Chapman left a message with Wawrzyniak indicating he wanted to discuss DeGuerre's condition, but made no mention of the DNR status and advised her that "nothing has particularly changed."

Wawrzyniak went to the hospital later that day and found her father having difficulty breathing, with his condition deteriorating quickly while in the presence of medical staff, the claim said.

The statement alleged she repeatedly asked staff to intervene, only to be told by Chapman that not doing so was "for his own good."

The statement said Wawrzyniak, a registered nurse, tried administering help herself, but was unsuccessful and DeGuerre died a short time later.

Wawrzyniak's suit alleged the doctors' actions constitute "abuse of power, intentional infliction of mental anguish and negligent infliction of mental anguish" -- assertions the two deny in their statement of defence.

The statement of defence said the physicians opted to change DeGuerre's status after reviewing his poor medical prognosis and noting that he appeared to be in "severe pain."

"Drs. Chapman and Livingstone agreed that in their medical opinion, there was no reversible component to Mr. DeGuerre's condition," the defence statement reads.

"In accordance with applicable policies, Dr. Chapman appropriately entered a 'do not resuscitate' order in Mr. DeGuerre's chart."

The doctors said the care DeGuerre received was "careful" and "competent," and denied that they owed any duty of care to Wawrzyniak since she wasn't their patient.

Wawrzyniak had twice filed complaints to the College of Physicians and Surgeons of Ontario, neither of which resulted in any action being taken.

In 2014, however, the province's Health Professions Appeal and Review Board ruled that the college failed to consider the key question in the case.

"The question before the committee was whether it was within the standard of practice of the profession for such order to be made without consent from (Wawrzyniak)," the board wrote. "In other words, who makes decisions relating to the patient's plan of treatment?"

According to board documents, the college changed its position in 2015, finding that while the doctors had exercised sound clinical judgment, they failed in their duty to tell Wawrzyniak about her father's change in code status. The college opted not to take disciplinary measures, but updated its own end-of-life policy.

RELATED IMAGES File photo. (CTV)