Doctors at one of Toronto’s biggest hospitals violated provincial law when they imposed a do-not-resuscitate order on a dying man without consulting his daughter, Ontario’s medical watchdog has ruled.

It’s a case that could have major legal implications for families and physicians clashing over the kind of treatment to give terminally ill patients, a debate that has roiled the Canadian medical community and legal system in recent years.

On Sept. 22, 2008, Douglas DeGuerre died of cardiac arrest at Sunnybrook Health Sciences Centre after battling a slew of illnesses, including congestive heart failure, diabetes and hypertension. He was 88.

In a complaint filed with the Ontario College of Physicians and Surgeons — and separately in a $1-million lawsuit against Sunnybrook and two of its doctors — DeGuerre’s daughter, Joy Wawrzyniak, claims she pleaded with medical staff to intervene as her father lay dying. A do-not-resuscitate (DNR) note on DeGuerre’s file, however, instructed doctors and nurses not to take emergency life-saving action, because physicians had decided medical intervention would only prolong his suffering.

The college initially dismissed Wawrzyniak’s complaint, a decision she appealed to Ontario’s Health Professions Appeal and Review Board. When the board deemed the college’s inaction “unreasonable” and asked it to reopen the investigation, the college continued to defend the decision not to provide DeGuerre treatment.

Last week, in a rare move, the board issued a second rebuke to the college, calling on the provincial regulator to again reconsider DeGuerre’s case and revise its end-of-life policies to bring them in line with legislation.

Take our poll

Related:

Lawsuit could set precedent about end-of-life decisions

Sunnybrook case raises question of who decides life support

Family, doctors battle over ‘do not resuscitate’ order

The college declined to comment. Sunnybrook did not provide comment despite multiple requests. Sara van der Vliet, of the Health Boards Secretariat, said the review board’s decision speaks for itself.

DeGuerre, a Second World War veteran, was gravely ill by the weeks preceding his death. On Sept. 17, 2008, his legs were amputated above the knee. According to the board’s written decision, it was in the immediate aftermath of the surgery that Wawrzyniak successfully applied to have her father designated “full code,” meaning that hospital staff would try to save his life in a medical emergency.

On Sept. 22, however, Dr. Martin Chapman wrote the following in DeGuerre’s chart: “Impression: this gentleman is in the final phase of his life and the time he has remaining would seem short. Further aggressive therapy, e.g. CPR, ICU care, would almost certainly not provide any lasting benefit to his health, only increased suffering …. Do not attempt resuscitation in event of cardiac arrest.”

The same day, Chapman left a voicemail with Wawrzyniak, which made no mention of the do-not-resuscitate order. “Nothing particularly has changed,” Chapman can be heard saying in a recording of the message provided to the Star by Barry Swadron, the lawyer whose firm is representing Wawrzyniak. “We just wanted to talk to you about a few things. Thank you very much!”

Later in the day, during a routine visit, Wawrzyniak found her father struggling to breathe. “I’m drowning, I’m drowning,” she remembers him saying.

In an interview, Wawrzyniak said she pleaded with Chapman to provide treatment. “When Dr. Chapman came into the room, he told the [respiratory therapist] to stop treatment,” she said.

“I said, ‘Help my father or I will sue you.’”

The review board decision concludes, “She requested help from a variety of sources but no medical interventions were made to save the patient, who died from a cardiac arrest.”

Jocelyn Downie, a professor of health law at Dalhousie University, called the review board’s Aug. 28 decision “very significant.”

In the wake of a landmark 2013 Supreme Court ruling barring doctors from unilaterally ending life support for the comatose Ontario man Hassan Rasouli, there had been speculation about whether the decision would apply to cases in which physicians withheld, rather than withdrew, medical treatment, as they did in DeGuerre’s case.

The board’s decision last week says that under Ontario’s Health Care Consent Act, doctors do require consent from a designated Substitute Decision Maker such as Wawrzyniak — or, in cases of disagreement, permission from the provincial Consent and Capacity Board — to withhold life-saving treatment. Since that consent was not obtained, the doctors broke the law, the board said.

Loading... Loading... Loading... Loading... Loading... Loading...

Still, lawyer Swadron said he worries the college will fail to heed the review board’s instructions. “Right now the state of the law is that the college gets another crack at it,” he said. “It’s almost like a stalemate. The board is saying that we have to recognize the laws of Ontario, and the college is doing its own thing.”

Wawrzyniak said she was “very pleased” with the board’s decision, and that she hoped it would lead to discipline against the doctors.

“I don’t know what would warrant discipline if this doesn’t,” she said. “They were so arrogant and brazen about it … They just played God.”

With files from Robert Cribb

Read more about: