Doctor defends decision to take man off life support, but family's lawsuit says he wanted to live

A Winnipeg physician and the local health authority are denying a widow's claims that her husband was taken off life support without the consent of him or his family.

Johnnie Frank Spence, 65, died on Jan. 28, 2017, on the medical intensive care unit at Winnipeg's Health Sciences Centre. His wife, Doris Spence, is suing the Winnipeg Regional Health Authority, an HSC physician and two nurses, alleging the doctor's negligence and the nurses' failure to use critical thinking and advocate for Spence led to his death.

Plans were made between the physician and Spence's family to take him off life support while he appeared unconscious on the ventilator on Jan. 27, 2017, according to the claim.

But the next day he woke up, motioned to his daughter to pass him a lottery ticket, wrote notes to his family and expressed his will to live, the claim states.

"At no time did he implicitly, expressly or constructively consent to the forfeiture of his life," the claim alleges.

Family, patient gave consent: doctor

But in a statement of defence filed in early January, the doctor rejects Doris Spence's claims, stating "the deceased and his family, including [Doris Spence], were well aware of the treatment plan and provided an informed consent thereto."

Johnnie Spence was admitted to HSC on Jan. 26, 2017 in respiratory distress related to a complex medical history, including Kennedy's disease — a muscle-wasting disorder.

The former HSC health-care aide also had a history of heart attack, open-heart surgery and a recent diagnosis of lung disease.

The doctor's statement of defence indicates that Spence had multiple hospital admissions in the weeks prior for aspirations "as he was unable to manage his secretions."

"The deceased was not a long-term ventilator candidate given his progressive neurological disease without the realistic possibility of obtaining any reasonable quality of life," states the defence.

Spence's condition deteriorated, and he was put on a ventilator in the early hours of Jan. 27.

Both the claim and defence describe a meeting between the family and doctor that day in which the doctor recommended withdrawing life support and proceeding with palliative care — care focused on keeping a patient free from suffering as they face life-threatening illness.

Plans were made to keep Johnnie Spence on the ventilator for 24 hours to allow the family and extended family to say goodbye. While the statement of claim does not indicate whether they agreed to the plan, the statement of defence said they did.

Capacity, wishes disregarded: lawsuit

Johnnie Spence's daughter, Annie, slept beside him in the ICU overnight, according to the statement of claim.

The next morning, "Johnnie awakened and gestured to Annie to get him a scratch lottery ticket and wrote a note on paper: 'Phone Mom,'" says the claim.

He waved at his wife and gave her the "thumbs up" when she entered the room. According to the claim, she leaned in and asked him, "Johnnie, do you want to live?" He nodded his head.

Doris Spence told CBC News that this conversation happened in front of the doctor.

"The plaintiff claims that Johnnie had the capacity to make health care decisions and had the ability to communicate with [the doctor]. The plaintiff further says that [the doctor] disregarded Johnnie's capacity, ability and wishes concerning [the doctor's] proposed treatment," states the claim.

The physician, in the statement of defence, acknowledges that Johnnie Spence was "more aware" when he saw him on Jan. 28, as a result of the ventilator. The doctor claims he went over Johnnie's medical condition, prognosis and plan for palliative care with Johnnie.

"The deceased did not have any objection to the plan as discussed with this defendant. Therefore the plan remained to keep the deceased comfortable and take him off the ventilator," according to the defence. It states Doris Spence was present during that conversation, and the plan was agreed to by the "other health care providers involved in the deceased's care."

The statement of claim alleges the nurses involved in Spence's care should have given protection to him, once he was awake and oriented, from "non-consensual and unlawful withdrawal of treatment."

'Tears streamed down Johnnie's face'

Following the conversation with the doctor, Johnnie Spence picked out pallbearers and waved goodbye to several family members as they entered his room in pairs, according to the claim.

"Tears streamed down Johnnie's face as his granddaughter gave him a kiss goodbye. Videotape was taken of Johnnie waving goodbye," it states.

Just after noon on Jan. 28, the doctor took him off of the ventilator, gave him three injections of morphine, and Spence passed away, according to the claim.

"This defendant was not negligent as alleged or at all and denies that he breached any duty of care owed to the deceased as alleged or at all," the statement of defence says.

"Johnnie was powerless, vulnerable and lacked any bargaining power with [the doctor] to maintain his own life," states the claim.

An expert in ethics at the University of Manitoba says life support is withdrawn from "tens of thousands" of patients each year in Canada, and clarified that the practice is much different from physician-assisted death, which he said accounts for far fewer deaths.

"The courts are going to have to sort out which story is credible, which story accords with the facts," said Arthur Schafer, founding director for the Centre for Professional and Applied Ethics at the University of Manitoba.

"If the doctors had the consent of the patient and the family, given the patient's terrible prognosis and severe medical condition, they behaved in a perfectly reasonable way. If they didn't have the support of the patient and/or the family for this decision, then there was a procedure to be gone through."

The College of of Physicians and Surgeons of Manitoba's Bylaw 11 indicates the procedures physicians in the province must follow when they don't have consensus with the patient or family over the plan to withdraw life support measures.

Doris Spence is seeking damages of $100,000 on behalf of herself and seven family members, as well as punitive damages under the Fatal Accidents Act.

Doris Spence and her lawyer, Martin Pollock, declined to comment on the lawsuit, as did the Winnipeg Regional Health Authority.

The allegations have not been proven in court.