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Posted on November 3, 2014 at 8:49 AM

A few days ago, the Supreme Court of Nova Scotia granted summary judgment to two defendant physicians in a medical futility lawsuit.

Michael Chan was 25 years old and had acute lymphoblastic leukemia with “extensive metastatic abnormalities.” Michael and his family initially agreed to a DNR order.  But the “hope of a change” led to a revocation of that order.  Michael apparently opted to “prolong the pain, if it meant it would prolong his time with his family.”

Despite the revocation of the DNR order, when Michael later went into full respiratory arrest, no resuscitation was attempted, and he died.

But the plaintiffs failed to obtain an expert report on causation.  Accordingly, the court held that the plaintiffs could not “link the plaintiff’s concerns about non-resuscitation to the cause of Michael Chan’s death.”

As I have systematically discussed, the inability of plaintiffs to establish the element causation has been a major obstacle in U.S. futility cases.

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