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Life support case raises questions for lawyers

|Written By Alex Robinson
Life support case raises questions for lawyers
Paula Trattner says lawyers who are going to bring applications with respect to life support need to have expertise in health law. Photo: Robin Kuniski

An Ontario judge has ordered costs personally against a lawyer who brought an emergency application to stop a hospital from taking her client off life support, despite having no instructions from him or his family to do so.

Ontario Superior Court Justice Harrison Arrell awarded $15,000 in costs against lawyer Georgiana Masgras, finding she was “at the very least negligent or mistaken” in her preparation of the material she submitted in the matter.

“She interfered in a dynamic and very personal family decision without any authority and submitted misleading material to the court,” Arrell wrote in Ferreira v. St. Mary’s General Hospital.

Masgras, who is a personal injury lawyer, was retained by Fernando Ferreira after he was in a car accident in Dec. 2016. On July 8 of this year, Ferreira suffered a severe heart attack, which resulted in him being placed on life support at St. Mary’s General Hospital in Kitchener, Ont.

Less than a week later, Masgras successfully brought an ex parte application to enjoin the hospital from withdrawing her client’s life support.

But a few days later another judge set aside that original order based on new information that showed a number of claims in an affidavit part of Masgras’ application were untrue or misleading.

The affidavit said Ferreira’s heart attack was related to the car accident, but it later became apparent that there was no evidence that the two were linked, the decision said.

The affiant also claimed Ferreira’s family had not considered the matter carefully, but 25 family members carefully considered it at the hospital and knew he would not want prolonged life support. 

Arrell awarded $7,500 in costs each to the doctor involved, as well as the hospital, concluding the application was brought without instructions from Ferreira or his family.

“It was also brought for relief that Mr. Ferreira’s family did not want, and the believed, quite correctly, Mr. Ferreira would not have wanted, had he been capable of knowing the complete picture of his medical condition and prognosis,” Arrell wrote.

He found he would not have issued the original order, had he known all the facts. He added that it was “inappropriate” for a lawyer to start an action without instructions from a client competent to instruct, and that the respondents had incurred costs “needlessly” because of the application.

Lawyers say judges rarely award costs personally against lawyers, and only do so cautiously given practitioners’ duties to bring forward and argue unpopular or difficult cases.

“It’s quite extraordinary,” says Paula Trattner, a partner with Osler Hoskin & Harcourt LLP who was not involved in the case.

“[I]t’s quite remarkable, because you have a lawyer who is acting on a motor vehicle case for the patient and bringing an ex parte emergency application without instructions to do so.”

Trattner adds that lawyers who are going to bring applications with respect to life support need to have expertise in health law and should understand the laws around consent and capacity.

Rebecca Durcan, a partner at Steinecke Maciura LeBlanc LLP, says the decision highlights the role of the lawyer and the importance of ensuring they are operating based on instructions.

“The role of a lawyer is not to independently reach out and act unilaterally,” she says. “It really drives home the importance of remaining in that dispassionate, impartial, yet advocacy role.”

Masgras says that she did what she “believed was in the best interests of Mr. Ferreira,” but declined to comment further.

She is now appealing the decision that overturned her application, and seeking judicial guidance from the Court of Appeal as to whether a personal injury lawyer in her circumstances had standing in the matter.

In her factum for the appeal, Masgras said that she did have standing to bring the appeal as costs were sought against her personally. She added that her appeal should be allowed because she was never served with a notice of motion to vary and other notices.

She also argued that there was actually no evidence in the hospital’s record before the judge whether Ferreira’s hospitalization was related or not to the car accident.

Lawyers Sarit Batner and Sam Rogers, who represented the doctor involved in the matter, declined to comment as the matter is still before the court.

In their factum, Batner and Rogers said Masgras does not have standing to bring her appeal, and that it is moot as Ferreira is dead.

“…Masgras did not have standing to bring the original application. She was a lawyer for Mr. Ferreira in unrelated personal injury litigation that had nothing to do with his heart attack and resulting permanent brain damage,” says the factum.

“She did not have power of attorney over his personal care. She had no instructions form him or his wife or family. She should never have brought the application.”

Daphne Jarvis, who represented the hospital in the matter, also declined to comment.

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