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Wawrzyniak v. Sunnybrook Health - More About Communication than Standard of Care

Posted Sep 06 2010 5:13am
In a recent review of end-of-life conflicts,  John Luce  notes that healthcare providers are overwhelmingly successful when sued for unilaterally refusing life support.  Similarly, Barry Swadron, the Toronto lawyer representing Wawrzyniak in her lawsuit against Sunnybrook Health, says her suit "could be the thin edge of the wedge in terms of doctors deciding who’s going to live and who’s going to die.”  But, by focusing on the standard of care issue, both Luce and Swadron may be missing what is most salient about this case. 

In his article, Luce focuses only on actions for medical malpractice.  But that is not the only legal theory under which families might proceed.  As I have argued
  here  and  here , the theory under which families are most often successful, in lawsuits for unilateral refusal of life support, is intentional infliction of emotional distress (aka outrage).  

While unilateral refusal itself has never been held per se outrageous, this case has elements of wrongfulness above and beyond unilateral refusal. Specifically, based on press coverage of the lawsuit, provider conduct here appears to have been both insensitive and secretive: 
  • The daughter was not just overruled but was overruled "without consultation"  [This is not allowed in Texas, Virginia, California, or any other U.S. state permitting unilateral refusal.]
  • A hospital representative admitted that the end-of-life policy does not allow doctors to make unilateral decisions "without communicating with the family"
  • The daughter attempted to bag her father herself, while a doctor said "nobody will come"
  • The patient's chart was changed from full code to DNR without consent or even explanation.  When confronted, a doctor said "This is for his own good."

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