Personal Injury

When families, doctors disagree on end-of-life care

By AdvocateDaily.com Staff

Oakville personal injury lawyer Meghan Walker and other lawyers are glued to a civil case underway in Ontario that they hope will clarify whether doctors can override the objections of family members and withhold medical treatment that they believe will be harmful or pointless.

The matter involves an elderly man who passed away after doctors issued a do-not-resuscitate order without the family’s consent, says Walker, associate with Will Davidson LLP.

The family has gone through numerous proceedings with the Ontario College of Physicians and Surgeons, which initially sided with the doctors, Walker tells AdvocateDaily.com. But after an internal appeal, the College admonished the doctors, and the family is now suing them for malpractice, she says.

“This is a very interesting area of law because it's quite murky, and I think even the College had a difficult time reconciling this issue,” Walker says. “The frustrating thing from a personal injury lawyer’s perspective is that the College can write very eloquent and detailed notes about why they came to a certain conclusion, they can address policy concerns in their reports, but generally speaking, none of that is admissible in court.”

In her own practice, Walker has received distraught calls from families at hospitals wanting immediate legal help because medical staff told them they would not be resuscitating a person or would be removing them from life support.

As it stands, doctors are generally allowed the discretion to decide if an intervention would be harmful and therefore shouldn’t be done, she says. “Now it seems the College is slightly backing off from that position.”

Walker has also had calls from the other end of the spectrum.

“Patients themselves have said, ‘Look, I had a do-not-resuscitate order for my terminal illness, and the doctors mistakenly resuscitated me. Now I'm alive, and I didn't want to be.’ You have to explain to people that there is no 'wrongful life' claim in Ontario,” she says.

These incidents are emotionally challenging, Walker says.

“The family members are willing to spend any amount of money to keep their loved one alive, and it’s difficult to explain to them that there's really not much I can do. The law, at its best, moves quite slowly. These are very sad cases, and my heart goes out to them.”

Walker hopes that another case, which is currently before the Ontario Court of Appeal, will provide clarity on the legal definition of death. It involves a woman taken off life support against her family’s wishes, after being declared brain dead from a drug overdose, she says, adding the family won an injunction to keep life support going, but it only lasted for 30 days.

“These two cases will hopefully clarify the legal issue so doctors know what law they must abide by,” Walker says.

In the meantime, she advises people to make end-of-life decisions very clear to their doctors and family members before becoming terminally ill.

“Be as specific as you can,” Walker says. “In these situations, doctors bring in the family members and ask them very specific questions. The more information you give your family members and doctors around your wishes, the better.”

Also, be sure that the doctor and hospital have contact information for your power of attorney for personal care and their substitute, she adds.

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