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No Duty of Care Owed By Doctors to Family Member

Does a doctor owe a duty of care to a family member of a patient? That was one of several questions in the case of Wawrzyniak v. Livingstone, 2019 ONSC 4900.

The plaintiff’s father was elderly and was suffering from several illnesses, including gangrene in his legs.

Following knee amputation surgery, the plaintiff’s father went into respiratory distress. Two doctors concluded that he was close to death and would almost certainly not benefit from resuscitation. They signed a “do not resuscitate” order. The plaintiff’s father died shortly thereafter in the plaintiff’s presence, with the plaintiff trying on her own to save her father’s life.

The plaintiff was trained as a registered nurse and was her father’s substitute decision-maker. She was upset that the “do no resuscitate” order was made without her knowledge. One of the doctors had tried to communicate the order to her, but could not reach her.

The plaintiff sued the two doctors. Justice Cavanagh held that the doctors met the applicable standard of care in their treatment of the plaintiff’s father.

The plaintiff advanced a claim for negligent infliction of nervous shock and contended that the doctors owed her an independent duty of care.

Justice Cavanagh disagreed, stating that recognizing a duty of care owed by a physician to a family member or a substitute decision-maker of an incapable patient would have the potential to put the physician in a conflict of interest.

The wishes of the family member or substitute decision-maker may not align with the physician’s medical opinion of what is in the patient’s best interests.

The imposition of such a duty of care might influence the physician, in attempting to comply with competing and potentially conflicting duties of care, to act in ways in which he or she would not otherwise act and put the patient at risk of harm.

For similar reasons, Justice Cavanagh also held that the doctors did not owe a fiduciary duty to the plaintiff.

The plaintiff’s lawsuit was dismissed.