HS 3101 - FINAL EXAM with 100% accurate solutions + rationales

2 meanings of negligence

1. branch of tort law (broad definition)

2. breach of standard of care (narrow definition)

what case is about the legal meaning of negligence? case where wife wanted to sue a psychiatrist for negligence bc of giving her husband a day pass out of institutuion, but husband ended up shooting 2 kids and then killing himself. trial and appeal court both did not charge psychiatrist bc concluded that psychology and psychiatry are "inexact sciences"

mustafic v smith (1988)

what are the 6 elements of a negligence action?

1. duty of care

2. standard of care and its' breach

3. causation

4. remoteness of damages

5. actual loss/damages

6. prejudicial conduct

the plaintiff proves which parts in a negligence action?

the first 5

as a general rule, courts will recognize a duty of care in ____________________

any situation in which the defendant's conduct creates a foreseeable risk of physical injury to the plaintiff

the scope of a health professional's duty to take affirmative action to render aid, treat, control or protect a patient or a third party is well settled. Is this statement T or F?

FALSE

it is "LESS SETTLED" than the establishment that health professional/patient relationship gives rise to a legal duty to exercise care

when is standard of care based?

state of practice AT THE TIME that the defendant ACTED and not at the time of trial

at what stage does the court determine if "the causal relationship between the defendant's negligent act and the plaintiff's specific loss is too tenuous or remote to warrant recovery" ?????

remoteness of damages

defendant's liability is usually limited to losses that are foreseeable result of the defendant's negligent act. T or F?

true;

remoteness of damages

prejudicial conduct (step 6 of of elements in a negligence action). What are the two most important defences may raise?

1. contributory negligence

2. voluntary assumption of risk

under "actual loss/damages" - what is NOT recoverable under tort law? (3)

1. death

2. grief

3. nervous shock not consequent on physical harm

under "actual loss/damages" -what IS recoverable under tort law? (2)

1. economic losses of a wrongful death

2. loss of guidance, companionship and care

white v turner - (1981). What did the plaintiff allege the defendant was negligent for? (3)

1. using the strombeck procedure instead of the robins procedure

2. did not develop a plan in advance of the surgery

3. operated too quickly and did not tack back the skin flaps to assess tissue tension before final suturing

white v turner - (1981). What did the court rule?

dismissed the first two claims because "the defendant could not be held liable simply because the surgical results were unsatisfactory"

court found the defendant negligent in performing the surgery

- operated too quickly

- not undertaken a customary check of the tissue tension and was negligent on this also

incompetence definition

viewed as being unable to meet the standards of his/her profession

customary practice

established approach, technique, process or procedure that has been widely accepted within a profession, trade or industry

what does "ter neuzen" illustrate?

a customary practice based on complex scientific or technical evidence cannot be rejected in the absence of expert evidence

7 criticisms of the adversarial system?

1. only a small % of patients are compensated, process is very slow, and the admin and legal costs are high

2. patients at a disadv. bc of technical nature of evidence and costs of obtaining hospital and medical records

3. difficulty finding experts to criticize their colleagues, esp. in areas w/ small pool of specialists

4. CMPA has unlimited resources & has refused to settle any but most obvious cases

5. cost of litgation - deters lawyers from even taking claims on a contingency-fee basis

6. undermines HP morale, adversely affects treatment decisions, discourages practicing in certain fields, inhibits good communication between HP and patient

7. NO EVIDENCE that system encourages HP to exercise greater care/weed negligent

no fault medical malpractice plans and other alternatives to current system have been proposed. T or F?

true

summarize jinks v cardwell

-patient drowned in a hospital bathtub following a hypotensive reaction to his medication;

-court held that the hospital had a duty to safeguard its psychiatric patients and that it breached the standard of care in this regard

negligent for:

1. having only 2 nurses on duty for ward 33;

2. giving patient meds w/o first checking BP;

3. failing to put patient where he could be observed from nursing station

4. failing to ensure assistance alarm in bathroom was working

government liability for funding

-SCC has held that there is no positive consitututional right to state-funded health care, even if it is life-saving

-only entitled to those insured health services which the provinces commit to providing under their health insurance acts

government and negligence

government is immune from liability in negligence if access to services is limited or there is a significant wait list due to underfunding or selective funding;

these are policy matters for which the government is accountable to the electorate, not to the courts

muir v Alberta summary

-sued the provincial government in negligence; was awarded $750,000 in damages

-she was admitted to a provincially-run training school for "mental defectives"

-was not given proper psychometric testing or IQ test

what is the locality rule and how has it changed?

rural physicians in small communities could not be held to the same standard as their urban colleagues;

has been narrowed with the advent of modern communications and publishing tech. --> increasingly demanded that health professionals keep up to date with the changing field

summarize crawford v penny (2003)

locality rule;

suit brought on behalf of melissa crawford and defendants were local family physicians;

melissa deprived of oxygen during delivery of her baby;

they were held negiligent for inducing labour without examining the patient and exercising independent judgement;

alleged that an ottawa specialist had advised them but court denied this and said that even for corridor consults --> doc owes a duty of care to the patient;

court of appeal affirmed the decision and the $10 million judgment

Till v Walker - summary

recvd med via 3 tubes; one req. sterile procedures;

walker an RN administered medicaiton through the tube requiring sterile procedures without implementing those procedures;

plaintiff developed septicemia as a result of this;

court held that VON - victorian order of nurses was 75% at fault (negligence and vicariously liable) bc they assigned such a complicated case to a RN & did not advise her that the 3 tubes had to undergo sterilization;

walker was held to be 25% at fault

V.B. v. Cairns summary

-girl reported to jehova's witness church elders that her father had sexually abused her when younger;

-church elders made her confront her father even after she expressed anxiety in doing so;

-she sued the church bc said that confronting her father had caused extreme psychological distress;

-court ruled that church elders owed her a duty of care and were negligent in ordering her to confront her father;

-did not say anything about fiduciary duty but stated that if such a duty existed, then it was not breached because the elders acted honestly, sincerely and in good faith

informed consent as a limited legal sense referring to a specific category of negligence actions

1. determine whether the HP breached the standard of care in informing the patient

2. causation: failure to be informed was a cause of his/her injuries

-general test of causation in negligence is subjective - was the defendant's negligence a cause of this plaintiff's loss

3. adopted a subjective/objective test of causation in informed consent cases

-prove that a reasonable person in his or her position would have also forgone the treatment

MOST CASES - the plaintiff can establish that the HP breached the standard of care, but is unable to meet the subjective/objective test of causation

define material risk

includes a low percentage risk of a serious consequence OR includes a minor consequence of high probability (ex. 35% risk of a minor infection)

ex/ 10% chance of paralysis;; 4% chance of death = material risk

courts have increasingly held that very small and even remote risks of death and serious injury are material risks that must be disclosed

informed consent- non-material risks of particular concern

-obligation to disclose non-material risks that they know, or ought to know, would be of particular concern to the patient

-ex/ while a 15% risk of minor shoulder stiffness from surgery may be of no concern to a 60-year-old accountant with a sedentary lifestyle, it would be a non0material risk which surgeon would be of concern to a 20-year old professional tennis player

turkington v lai (2009) summary

-surgeon operated to remove a cyst on left ovary but removed both ovaries because of the condition in which he found them

-surgeon nicked the plaintiff's bowel, which resulted in post-op complications necessitating 80 days of hospitalization;

-plaintiff sued claiming that the surgeon was negligent in recommending and conducting the surgery and in failing to inform her of the risk of nicking her bowel

-court held that surgeon acted reasonably in recommending and performing the operaiton

read more 99

apology act 2009

defines an apology as an expression of sympathy, regret or sorro, whether or not it includes an inference or admission of liability

apology does not constitute an "express or implied admission of fault or liability"

apology is not admissible in any civil, administrative or arbitration proceedings as evidence of :the fault or liability of any person:

positive acts vs failure to act

-liability was once imposed for positive acts even in the absence of fault;

-no duty in negligence to take affirmative action to benefit others

-some limited duties of affirmative action - if parties were in a special relationship

is there a duty of care in negligence to rescue and render aid to a person in peril?

no

unless a special relationship exists between people

good samaritan act 2001

absolves regulated health practitioners and others of liability if they voluntarily provide treatment in an emergency, unless they were grossly negligent

ethical and professional obligations to rescue implications

provincial colleges of physicians and surgeons may view a breach of the ethical obligation to provide assistance to any person with an urgent need for medical care as grounds to reprimand the physician, or limit, suspend or revoke their license

EVEN THOUGH THERE IS NO GENERAL COMMON LAW DUTY TO DO THIS

does the refusal to accept patients outside of one's practice constitute discrimination in violation of the human rights code?

no

HP withholding non-emergency services as a part of job action to pressure government: views of

a) ontario college of phsycians and surgeons

b) quebec courts

a) indicated that such conduct is acceptable in limited circumstances

b) quebec courts have held a medical federation liable for encouraging its members to withdraw services to pressure the government

practitioners have no obligation to provide treatment that is: (4)

1. inconsistent with accepted standards of practice

2. not recognized as being effective

3. futile in the circumstances

4. provide services to patients whose hostile or uncooperative behaviour makes effective treatment impossible

CPSO thoughts on "are practitioners required to provide treatment that violates their religious or ethical beliefs?"

-physicians may limit the services they provide for religious or ethical reasons but requires them to do so in a manner that respects patient dignity, ensures access to services, and protects patient safety

-must inform the patient that the service is not being provided based on personal beliefs, rather than clinical considerations

-physicians are required to provide care in an emergency to prevent imminent harm, even if that care conflicts with their ethical or religious beliefs

the thoughts of ontario human rights commission and christian medical and dental society of canada on the CPSO's policy of a physician's rights to deny services based on religious/ethical grounds

ontario human rights commission - expressed support for the current guideline

christian medical and dental society of canada - sought a declaration that the CPSO's policy infringes on section 2 of the charter of rights and freedoms but the society's application was denied

what is the duty to refer?

HPs can be held liable in negligence if they fail to refer a patient who they know or ought to know requires the services of another professional

layden v cope (1984)

went to two GPs in ton when he suffered acute pain and lesions in his foot;

GPs said it was gout and treated him for 9 days;

after 9 days was referred to a specialist who diagnosed it as cellulitis with possible secondary infection;

leg had to be amputated

doctors not held liable for initial mis-diagnosis; were held liable in negligence for failing to consider other diagnoses when the plaintiff's condition had obviously deteriortated and for failing to refer him to a specialist sooner

the courts have not increased the special relationships in which they will recognize a duty to control. T or F?

false

courts have greatly INCREASED the special relationships in which they will recognize such a duty

villemure v. l'hopital notre-dame (1972)

admitted on an ER basis to psychiatric ward of a hospital after he attempted suicide;

patient moved from a room that had barred windows to one that did not;

patient shortly thereafter committed suicide by jumping from the window;

physician and nurses held liable in negligence for failing to properly supervise and safeguard the patient

shackleton v. knittle (1999)

-allowed a patient who had been suffering from paranoid schizophrenia to sit in the front seat when they were driving;

-patient ended up grabbing steering wheel and resulted in killing someone in a crash;

-patient was not held resp in criminal negligence by reason of mental disorder

-patient sued attendants for letting him sit in the front seat;

-court held that attendants had not been negligent because they were not warned by docs or nurses to not allow the patient to sit in the front seat for comfort & this is common practice anyways

C.D. v. Newfoundalnd

-plaintiff was physically and/or emotionally abused by her foster mother for 12 years and sexually abused by mom's brother

-social worker had close relationship with foster parents and when plaintiff complained of abuse, social worker did not believe plaintiff and did not investigate at all

- 4 months after initial complaint that the first social worker and her supervisor intervened after a second complaint

- second foster home - dad sexually abused her

- foster mother, first father, first social worker, director of child welfare = all liable

dual obligation professionals have in making placements

1. ensure that the placement is appropriate for the patient and does not put him or her at an unreasonable risk

-would hence have a legal duty to investigate and respond to any credible allegation of abuse

2. ensure that the placement does not expose the receiving family or agency to an unreasonable risk

D.(M.) v British Columbia

-placed molly a 2 month old baby born addicted to methadone in foster care with Ms. Kierkegaard

-ministry had prev. refused the application of molly's aunts for custody, stating that Molly req close medical supervision and a special care foster home with foster parents who had experience in caring for methadone-addicted infants

-ms.k = not fully informed of molly's special needs; she was not an ideal candidate but the staff member made no effort to find a more suitable placement

-molly admitted to hospital with injuries caused by being violently shaken within 4 days of being in ms.k's care

-ministry was negligent for its bureaucratic bungling, failure to ensure effective communication among staff, and its decision to place molly with ms. k despite her unsuitability

Can employers be held liable for employees?

yes

can be held personally liable or negligently failing to respond to allegations that an employee has abused or harassed a patient or fellow employee

R. (G.B.) v. Hollett (1996) summary

-plaintiff: resident in a school for young female offenders;

-employee was found to help girls run away, gave them drugs

-employee was not fired for several months

-employee during this time dev. a relationship with the plaintiff where he emotionally, physically, and sexually abused her

-institution was found to be liable for failing to fire the employee once the complaints were found to be valid

whether the courts will impose a duty of care in providing a reference and the expected standard of care will depend on several factors....

1. obligation will vary with the type of information that is provided

2. obligation will vary depending on the extent to which a reasonable person would rely upon the information provided

3. obligation will vary with the potential risks involved

t. v. surrey county council

was not honest about placement reccomendation with ms. w who was obviously not a suitable candidate;

ms. w ended up violently shaking the baby resulting in brain damage

adviser and local authority were held liable for their negligent misstatements concerning mrs. w's suitability

patient record

including all recorded information, regardless of the manner in which it was recorded, that a HP or agency has about a patient's treatment, counselling or care

when will the amount of information recorded in a patient record be the greatest?

outset of the relationship as a practitioners collects background information and attempts to identify the patient's concerns

when will a patient record be adequate for legal purposes?

if the record provides for ongoing continuity of care

importance of records from a legal perspective (3 broad)

1. records are used in litigation

2. penal consequences if records are not adequately maintained (ex/ failure to comply with mental health act's record provisions constitutes a provincial offence, max. fine of $25,000)

3. professional consequences if records are not properly maintained (can result in professional misconduct)

the role of records in litigation (5)

1. record of a practitioner is admissible in legal proceedings; will be considered prima facie proof of the factual statements made

2. practitioner is allowed to use record to refresh memory

3. practitioner's credibility is influenced by the state of the record

4. practitioner's record is the singly most important factor in the outcome of any litigation according to lawyers

5. record plays a greater role in litigation concerning counselling because there will rarely be any physical evidence

summary of peters-brown v. regina district health board

plaintiff treated for hepatitis at defendant hospital;

hospital had a list of "previously identified cases" whose bodily fluids had to be handled with caution posted in an area;

list eventually got disseminated to her workplace;

hospital was not negligent for creating the list but they were found to be negligent for the careless handling of the plaintiff's confidential medical information

guidelines for record keeping (13)

1. written objectively and professionally - esp for sensitive manners

2. entries should be chronological

3. alterations or additions should be made openly, with the OG entry left intact and legible

4. corrections should be initialled, signed and dated

5. au should print name, sign record, and indicated position

6. should be made in dark ink and legible

7. should be complete - omissions will be interpreted negatively

8. au should limit the record to information that is relevant to the patient's treatment

9. if more sexually, emotionally or legally sensitive should make sure that this is relevant to the patient's treatment

10. information that is relevant SHOULD NOT be omitted simply because it is embarrassing or negative

11. info should be recorded when the intervention or event occurs or as soon possible thereafter; longer delay beore recording the info, more likely that record will be challenged and be inadmissible

12. entries should be made by the practitioners providing the services

13. if entry made by 3rd party, should be verified by the person who performed the service

what are the 3 types of legal record keeping, confidentiality, disclosure, and patient access principles that most HPs are subject to?

1. common law and equitable obligations to their patients

2. belong to a regulatory body that has statutory authority to reprimand, suspend or otherwise discipline members for breaching the statutory standards

3. most professionals are subject to several other statutes containing record keeping, confidentiality, disclosure, and patient access provisions

ontario freedom of information legislation - what does MFIPPA and FIPPA stand for?

MFIPPA - municipal freedom of information and protection of privacy

FIPPA - freedom of information and protection of privacy act

MFIPPA vs FIPPA; what do they each apply to?

MFIPPA - applies to almost all municipally-created government departments

FIPPA - applies to all provincially-created government institutions

what are the two broad functions of MFIPPA and FIPPA?

1. provide individuals with a right to access general and personal information held by municipally and provincially-created government institutions

2. seek to protect privacy by restricting the right of these government institutions to collect, use and disclose an individual's personal information

definitions of "record" and "personal information"

record: any record of information however recorded

personal information: recorded information about an identifiable individual

MFIPPA and FIPPA DO NOT apply to....

health, counselling and care professionals who work exclusively in the private sector or to their regulatory colleges or bodies

in regard to record keeping, both MFIPPA and FIPPA prohibit.....

the collection of personal information, unless it is expressly authorized by statute, used for law enforcement purposes or is necessary for the proper administration of a lawfully authorized activity

which legislation states "personal information collected, used and disclosed by municipal and provincial governments are subject to MFIPPA and FIPPA" ??????

ontario freedom of information legislation

which legislation talks about PHIPA?

ontario health information privacy legislation

what is the "broadest and most important provincial health privacy statute" that applies to the collection, use and disclosure of HICs?

PHIPA - personal health information protection act

what does HIC mean?

health information custodians

what does the term HIC include?

all regulated health practitioners; members of the college of social workers and social service workers; community care access centres; long-term care homes; public and private hospitals; psychiatric and mental health facilities

what does HIC not include?

youth workers

addiction counsellors

school guidance counsellors

what is personal health informations under PHIPA/ontario health information privacy legislation?

information that may directly or indirectly identify an individual relating to his or her physical or mental health, health number, SDM and health care providers

when may HICs collect, use or disclose personal information?

1. individual consents

2. its necessary for lawful purposes

3. if act permits it

what is QCIPA?

quality of care information protection act; was repealed and replaced in july 2017

permits the disclosure of any information to a "quality of care committee" for the purposes of its deliberations

greatly restricted access to "quality of care information: and made it inadmissible in evidence in any provincial proceeding

what does PIPEDA stand for?

personal information protection and electronic documents act

what does PIPEDA outline?

sets out rules on the collection, use and disclosure of "personal information" by federal and provincial organizations in both the public and private sector

relevant provisions of the Act for our purposes are limited to information collected, used or disclosed "in the course of commercial activity"

under PIPEDA, what is commercial activity?

defined as any transaction, act or conduct that is of a "commerical character", including the selling, bartering or leasing of donor, membership or other fundraising lists

PIPEDA's impact on agencies and individuals who operate within a single province will decrease as PIPEDA is displaced by comparable provincial legislation. T or F?

True;

if the federal government is satisfied that substantially similar provincial privacy legislation is in place, it may exempt those agencies and individual's from the Act's application

PIPEDA, PHIPA AND QCIPA

ONTARIO'S PHIPA IS SIMILAR TO PIPEDA

QCIPA is not similar to PIPEDA

ISSUES governed by PHIPA are not subject to PIPEDA, but the issued governed by QCIPA are subjct to PIPEDA

patient access to their own patient record

patients have a broad common law right to review all of the information in their treatment record, unless a statute or contract provides otherwise

patient can invoke this common law right by simply requesting access

do not need to employ a lawyer or go to court

McInerney v Macdonald

MacDonald asked to access her patient records;

Dr. McInerney gave her what she personally prepared but said she could not disclose other doctors records and suggested that MacDonald contact other doctors direclty to obtain copies of their records;

supreme court rejected McInerney's position and ordered her to release the entire file;

court stated that "a patient is entitled to examine and obtain a copy of the whole record, incl reports from other physicians and nay other information that the physician considered in providing advice or treatment

onus is on the physician to prove that granting the patient access would endanger the patient or a third party; McInerney could not prove this and thus MacDonal's request was allowed

patient's right to access their records is subject to numerous exceptions, like what?

patients may be denied access under PHIPA if granting access could reasonably lead to the identification of a person who was required by law to provide the informaiton; or who provided information in confudence if the custodian thinks that it is appropriate to keep name confidential

PHIPA thus limits right of indivdiuals to access their personal health information

can agencies be compelled to disclose administrative records to patients?

noooooo

unless a statute or court order expressly grants them a right of access

how long must public hospitals keep medical records, notes, charts relating to a patient who is 18+?

10 years after the patient's discharge or death

how long must public hospitals keep medical records, notes, charts relating to a patient who is a minor?

keep at least 10 years after the 18th anniversary of the patient's birth

M (K) v M (H) 1992

plaintiff was sexually abused from age of 8 from her father;

she previously thought that her failed marriage, depression and other psychological probelms were due to her own "stupidity";

@ 28 she sued her father;

trial and appeal courts dismissed her claim as statute-barred;

but supreme court of canada held that "reasonable disoverability" principle provides a fair and flexible way to apply the limitatons act and held that the limitation period should only begin to run once the abuse victim is capable of understanding the wrongful nature of the abuse and the harms that it has caused in their life;

SCC held that planintiff claim was not statute-barred because the limitation period only began to run once she realized that the abuse caused psyhcological harm that she suffered

what factors make it prudent to keep records for longer than the min, statutory retention periods?

-can be used for prosecuting indictable offences; no limitation period for this

-practitioners should consider limitation act; civil suits can be brought decades after the act's general 2-year limitation period has ended

how are patient records able to be stored? (3)

written

computer

microfiche

statements of opinions in patient records

-they are allowed;

-if the statement is an opinion, it should be identified as such

-should limit statements of opinion to matters of general public knowledge and to issues that fall within the scope of their expertise, training and experience

-it is appropriate for the record to reflect the evolution of the practitioner's thinking

are physicians allowed to keep private records?

yes;

private records may be subpoenaed or otherwise seized under court order;

private record is not automatically admissible in evidence like public records are;

still must keep pubic record complete even if they have a private record;

public and private records must be consistent && any discrepancy will undermine practitioner's credibility and integrity

what is the major legal benefit of keeping private records?

practitioner controls them

can be significant for professionals who are employed by others

confidentiality common law definition

viewed as the obligation not to willingly disclose information obtained in confidence from a person, without that person's consent

when do the courts generally recognize that an obligation of confidentiality arises?

when the relationship or circumstances create a reasonable expectation of privacy

can the fact that a person is a patient be disclosed without consent?

no

this is confidential information that requires consent to be disclosed

does confidentiality apply to conduct in public or statements made in the presence of 3rd parties?

no, obligation is genearlly limited to context of the treatment relationship

ex/ although a patient's conduct during treatment or counselling would be subject to a common law obligation of confidentiality, his or her conduct in the hospital cafeteria or parking lot would not

sharpe estate v northwestern general hospital

-sharpe died of AIDS after recv blood transfusions at northwestern general hospital that the canadian red cross society had supplied;

-issue: whether the society's blood donor list was confidential and thus met the first requirement for privileging the document

-trial judge held that the list was not confidential and therefore was not privileged from disclosure;

-appeal court held the trial court's decision stating that the society had no written or verbal agreement with the donors starting that the identities would remain confidential

common law tort of breach of confidence intially arose in what context?

context or protecting trade secrets and other sensitive business information

do physicians and other HPs have a fiduciary duty to maintain confidentialy of patient info?

yes