The College of Physicians and Surgeons (the CPSO) recently amended its policy “Planning for and Providing Quality End-of-Life Care” in light of a decision of the Ontario Superior Court in a medical malpractice lawsuit.

In the case of Wawrzyniak v. Livingstone, the plaintiff, who was the substitute decision-maker (SDM) for her father, alleged that her father’s physicians failed to meet an acceptable standard of care when they made the decision to write a do not resuscitate (DNR) order without her knowledge and consent in September, 2008. In August, 2019, her lawsuit was dismissed and no appeal is being taken.

The foundational facts of the case involved a medical consensus of a critical care physician and an internist, that the patient’s death was imminent (meaning within days), and that he would almost certainly not benefit from aggressive ICU care or CPR, which would only increase his suffering at the end of his life, and co-signed a DNR order in his chart. One of the physicians attempted to contact the patient’s daughter immediately thereafter by phone to inform her but was unsuccessful in reaching her, and a message was left inviting a further discussion. Before that discussion could occur, the patient precipitously declined, arrested and died in the presence of his daughter. The critical care physician arrived at the bedside and re-confirmed that resuscitative measures such as CPR were not appropriate and were not offered. The daughter, who had been insistent that her father be “full code”, found this to be profoundly upsetting, hence, the lawsuit.

The Court found that the physicians met the standard of care in their assessments of the patient. The Court also found that writing a DNR order in these particular circumstances did not constitute a “treatment” decision within the meaning of the Health Care Consent Act. In the circumstances, the physicians did not require consent to write the DNR order. They were not in breach of any duty of care in writing the DNR order, as it was in their patient’s best interests. In coming to this decision, the Court referenced both the hospital and the CPSO’s end of life policies in place in 2008.

The Court’s decision to some extent runs counter to revisions, which had been made to the CPSO’s policy in 2015 and 2016. The CPSO has therefore recently reconsidered and amended its policy effective September 20, 2019. With eleven years having passed since the events in this case, the CPSO takes the position that its standard of care today would not permit a no-CPR order to be written until after notification of the patient/SDM and, if no consensus, the completion of a dispute resolution process. The newly amended policy, however, would allow for a bedside exercise of clinical judgment as to benefit/harm, and would not expect the medical team to act contrary to the standard of care in the circumstances.

You may read a more detailed article on these interesting legal developments here.

Author

Daphne G. Jarvis 
DJarvis@blg.com
416.367.6216

Expertise

Health Law