Judge dismisses suit against doctors accused of ignoring man's wishes to stay alive

TORONTO -- 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, a 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 either 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, noting they could have stressed the urgency of the situation or provided personal mobile numbers.

"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.

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.

Court heard DeGuerre's full code status was reaffirmed after he successfully pulled through the procedure.

Days later, however, court heard the doctors took a different approach after what they perceived as a significant downturn in DeGuerre's condition.

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."

Shortly after receiving the voicemail, court heard Wawrzyniak went to the hospital and found her father struggling to breathe.

She summoned hospital staff who tried to help, but court heard that when Livingston arrived he told Wawrzyniak that resuscitation would be of little benefit and only cause suffering. Chapman asked staff to stop trying to revive DeGuerre.

Wawrzyniak, a registered nurse, tried administering help herself, but was unsuccessful and DeGuerre died a short time later. She discovered the next day that her father's status had been changed.

Cavanagh said the doctors acted according to policies set by both the hospital and the province's medical regulator.