New Case: Wawrzyniak v. Sunnybrook Health Sciences

Many recent medical futility dispute cases both in the United States and Canada have been ex ante cases.  In these cases the patient is still alive and one side or the other goes to court.  Sometimes, the patient's family is seeking an injunction ordering healthcare providers to continue life-sustaining treatment.  Other times, it is the provider who goes to court to seek a declaratory judgment or to replace the decision maker (e.g. through the CCB) who will not consent to the less aggressive treatment providers think appropriate.  

On the other hand, in ex post cases, the family sues for damages after providers have already proceeded to withdraw life support without the family consent.  Wawrzyniak v. Sunnybrook Health Sciences is this type of case. Joy Wawrzyniak has filed a $1 million lawsuit against Sunnybrook and two of its physicians.  The lawsuit claims that while Wawrzyniak and her father had repeatedly requested that he receive lifesaving treatment in case of a medical emergency, doctors unilaterally overruled those wishes without consent or consultation.  (Toronto Star)  

Barry Swadron, the Toronto lawyer representing Wawrzyniak, said her suit could set legal precedent in Canada.  “This could be the thin edge of the wedge in terms of doctors deciding who’s going to live and who’s going to die.”  Maybe.  But it is worth noting that providers have won almost all the ex post futility cases that have gone to court.