Health Professionals are subject to negligence claims in everyday practice. Negligence, however, deals with inadvertent behaviour, meaning some act or omission that occurred resulted in the plaintiff’s injury or damages. Therefore, although the intended goal of any treatment or procedure is to care for a patient without any direct or indirect injury, this is not the standard of care. When the standard is set by the goal it becomes a guarantee, which has no place in the law of negligence. If a healthcare professional follows the proper steps necessary to meet the standard of care, it is still possible for an injury to occur, though not as the result of negligence.
Armstrong v. Royal Victoria Hospital (ONCA) (2019): The patient’s left ureter was injured during a laparoscopic colectomy surgery. The colon was anatomically normal. The injury was a complete stricture of the left ureter about 8-10cm long caused by a cauterizing device known as a LigaSure. The device transmits heat, and injury to the ureter is known to be a possible risk of this surgery if the device comes within 2cm of the left ureter.
At trial, the surgeon was found to be negligent. The trial judge determined that the standard of care was following a set of steps established by the evidence and that those steps had been taken by the surgeon. Despite this, the judge found liability based on the occurrence of the injury, or in other words, he held the surgeon to a standard of perfection. Following the trial, the Ontario Court of Appeal (ONCA) allowed the surgeon's appeal and dismissed the action on the basis that the doctor had met the standard of care by demonstrating that the proper steps had been followed, despite the outcome of injury to the patient.
Fullowka v. Pinkerton’s of Canada Ltd. (SCC) (2010): Miners engaged in a labour protest were killed by a collapsing mine shaft after an explosion triggered by an unknown bomber. The families of the victims sued the security service for negligence for failing to prevent the bomber from gaining access to the mine. At trial, the security service was found to be negligent in that it “failed to ensure the entrances were properly guarded to avoid incursions”. The Supreme Court of Canada (SCC) reversed the result for two reasons:
St-Jean v. Mercier (SCC) (2002):The facts here are less important than the result. That message is that the standard of care for negligence is to be measured by the behaviour that a relevant prudent person would undertake, rather than the results that a prudent person would seek to attain or avoid. As stated by the Supreme Court of Canada (SCC):
The correct inquiry to be made in assessing whether a professional committed a fault is indeed to ask whether the defendant behaved as would a reasonably prudent and diligent fellow professional in the same circumstances. To ask, as the principal question in the general inquiry, whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focusing on the result rather than the means. Professionals have an obligation of means, not an obligation of result.
The occurrence of an injury or undesirable consequence following medical treatment does not in itself constitute negligence. The focus must be on the acts or omissions of the healthcare provider, rather than a negative outcome, which may be an inherent risk of even the most carefully executed procedure or treatment.
At Wise Health Law, we rely on our significant experience before discipline panels of various regulatory Colleges to provide our clients with exceptional guidance and representation through this often-overwhelming process, and we represent health professionals in civil litigation as well. To find out more about how our lawyers 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).