The vast majority of legal actions commenced against health professionals are grounded in whole, or in part, on the law of negligence. The tort of negligence requires a plaintiff to allege and prove four elements. They are:
This blog post focusses on the second element – a breach of the standard of care. Was what occurred to the patient the result of such a breach, or alternatively, was it merely an error in judgment? The importance lies in the result, a breach leads to damages while an error in judgment does not!
The standard of care is the level of treatment a reasonably competent health care practitioner would be expected to provide in the circumstances before them. The plaintiffs set out allegations of negligence in their statement of claim, which sets out the case advanced by the plaintiff(s) and which the defendant health care professional(s) have to meet. The allegations may relate to actions taken and alleged to have been committed wrongly, or actions not taken, which should have been performed.
The most often quoted passage on the standard of care is the Ontario Court of Appeal’s (ONCA) decision in Sylvester v. Crits et al. wherein it was stated:
Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing and, if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability.
The appropriate standard of care is advanced by the parties through their evidence, largely consisting of expert evidence. It is a standard of reasonableness, not perfection. This is because it is easy to be right in hindsight and the health care professional must be viewed not in retrospect, but in the circumstances that presented themselves at the time.
It must also be remembered that the appropriate standard of care is based on the state of medical knowledge and technique at the time of the alleged negligence. It is not based on advancements that may have since been made.
The common law has long recognized that a health care professional is not negligent, that they have not breached their duty when what occurred was an honest error of judgment after a reasonable and careful assessment of the patient. Perhaps the most well-known expression of what was meant comes from Lord Denning in Roe v. Minister of Health as follows:
It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. We cannot take the benefits without taking the risks.
This makes sense as most health care professionals are presented with unique and fast appearing circumstances they must consider. Although all work from their education, training and experience, they are not perfect. Errors are expected and the court must then decide if what occurred was a negligent act or omission, or mere misadventure.
If the health care professional establishes that they acted honestly, intelligently and reasonably when providing an exercise of judgment, an error in judgment is not equal to negligence. This is unlikely to happen where the error was the result of unskillfulness, carelessness or from ignorance.
At Wise Health Law, our lawyers have significant experience before the civil courts, enabling them to provide our clients with exceptional guidance and representation through the often-overwhelming negligence litigation process. To find out more about how we can help, contact us online, or at 416-915-4234for a consultation.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).