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General Counsel s report GENERAL COUNSEL'S REPORT ’ DEFENDING PHYSICIANS IN CHALLENGING TIMES: MEDICO-LEGAL ISSUES CREATED BY SHRINKING HEALTH CARE RESOURCES Every year the CMPA responds to an increasing number of questions from members about issues in their day-to-day work. Many inquiries are related to the current health care environment in Canada. Have you faced any of these questions? • I am obliged, as a condition of my hospital privileges, to be on call in the emergency department. What are my obligations when a patient presents with a possible acute surgical abdomen in the absence of surgical or anesthetic backup? • How should I proceed when an urgent C-section is required and the anesthesiologist on call is occupied with emergency surgery at the hospital's other site, which is approximately 10 minutes away? • The waiting list at our hospital for cardiac procedures is too long. Do I have a duty to disclose this to patients and/or to advise them of the possibility of obtaining faster treatment elsewhere? • I am a specialist and head of the department at a large tertiary care centre. I am the only one in the department with expertise in a particular sub-specialty and receive many referrals. What is the extent of my liability between the time the referral is received and the patient is seen, often a period of three to four months? • Most family physicians in our town have closed their practices to new patients. This leaves many members of the community with their only access to care through the emergency department. Who is responsible for these "orphaned" patients once they are discharged? This is only a small sample of the dilemmas plaguing physicians in Canada today. Restructuring, funding cutbacks and cost containment are all words that reflect the reality that doctors are still being asked to meet the standard of care with fewer and often inadequate resources. How should physicians respond when they are faced with making treatment choices that are affected by cost considerations and the ever-changing environment for the delivery of health care? What will be their liability when long waiting lists, the lack of specialists or unavailability of diagnostic tools impair the appropriate course of care? 10 The standard of care The standard of care expected of a physician is still often described by reference to this extract from a case decided in 1956: 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 of one who does not profess to be so qualified by special training and ability. Courts determine the appropriate standard of care through the evidence of experts who function with similar training and in a similar practice setting as the defendant physician. However, Courts have tried to be cautious about applying the standard in the abstract and will usually consider the circumstances surrounding a specific fact situation. Although the test of the "reasonably prudent physician" is objective in nature, certain factors may tend to alter the standard to be applied. These factors include the place of practice and the resources available to the physician. The locality principle For a long time, Courts have recognized the effects of resource constraints on the standard of care in examining the place of practice. The locality principle is a factor that may persuade the Court to accept that the geographic location of a doctor's practice may affect the experience, facilities, equipment and staff available when treating a patient. Although an argument can be made that physicians practising in remote areas should not be held to a lower standard of care when working within these limitations, it does make sense that Courts make some allowance for the reality and unavoidable limitations of the practice setting. Available resources and cost containment The Courts have yet to fully address how the scarcity of health care resources will affect the standard of care expected of physicians. To date, the Courts appear unwilling to accept an "economic defence" to justify withholding treatment or services from a patient for reasons of overall resource containment. However, the decided cases to date have all involved situations where the physician made a conscious choice, in the face of cost containment pressures, not to make use of
General Counsel s report ’ resources that were actually available. Such cases can and should be distinguished from the situation where those resources are simply unavailable. If a physician is required, due to a lack of beds, to accept only "unstable" patients in the emergency department, the physician's decision would likely be construed as a decision made in response to a scarcity or lack of resources and not one where the resources were available but consciously withheld for cost containment reasons. This may have an impact on what the Courts would expect of a physician in the circumstances, as Courts usually take into account the facilities, equipment and personnel available to a physician when determining the applicable standard of care. A physician owes a duty to a patient to act in the patient's best interests once the doctor/patient relationship has been established. Clearly, a physician would not be acting in the patient's best interests if he or she accepted to treat the patient when doing so would endanger the patient because of a lack of resources and might also compromise the care of other patients. Nor is it appropriate for a physician to redirect or delay transfer of an emergency patient where this would pose a danger to the patient. In such a case, physicians may have no choice but to treat the patient to the best of their ability even if the available resources are not optimal. Duty of hospital Physicians are independent professionals who are usually responsible for their own acts and omissions, but a hospital could be equally responsible if it required physicians to work under unreasonable conditions. Although physicians are not employees of the hospital at which they have privileges, and as such the hospital will not be held vicariously liable for the physician's failure to live up to the standard of care, the Courts have made it clear that hospitals still have responsibility to ensure adequate staffing and co-ordination of personnel and other resources. Hospitals can be directly liable to the patient who is injured as a result of improper protocols or lack of adequate facilities. Courts will usually take into consideration the scarcity of resources and community standards when evaluating whether the facilities and staffing were adequate under the circumstances. For example, in Bateman vs. Doiron, a 1991 decision of the New Brunswick Queen's Bench, the "non-availability of trained and experienced personnel, to say nothing of the problems of collateral resource allocation" were considered when evaluating what community standard was expected of a hospital that staffed its emergency department with general practitioners due to the unavailability of emergency physicians. In a recent decision of the Nova Scotia Supreme Court, Thompson Estate vs. Byrne, it was stated that a hospital was not negligent in its system of anesthesia coverage in a cardiovascular intensive care unit. The Court, in making its determination, examined the coverage available in other Canadian intensive care units and stated that "no hospital could afford to have anesthesia residents always at hand, waiting around without other responsibilities until such time as a patient might have occasion to require their services." This case demonstrates that not only might the fact of scarce resources be considered by a Court, but so might the custom in other similar hospitals with respect to staffing. However, the English Court of Appeal addressed the issue of insufficient resources leading to inadequate care in the case of Bow vs. Devon Area Health Authority and came to a different conclusion. In this 1993 case, an infant plaintiff suffered brain damage as a result of the defendant's inadequate system for providing emergency obstetrical care. The case considered the liability of a hospital with two separate facilities and the organization of services between them. The emergency services were only available at one site, and the Health Authority argued that it could not be expected to do more than its best with the limited resources available. The Court rejected this defence, stating "it was not necessarily an answer to allegations of unsafety that there were insufficient resources to do everything that they would like to do." If a Canadian Court were to adopt this approach, a hospital might not be successful in raising as a defence that it was doing its best faced with limited resources and that it should not be faulted for providing some service under those circumstances rather than none. Liability of physicians As stated, the physician's duty is to do what is in the patient's best interests and in the event of a choice between a doctor's duty to a patient and that owed to the medical care system, the duty to the patient must prevail. While to date in Canada only a few cases have touched on the issue of lack of resources, a couple of recent decisions are illustrative of where the Courts might be headed. 11
Page 1 and 2: Table of contents TABLE OF CONTENTS
Page 3 and 4: What we offer THE CMPA-WHAT WE OFFE
Page 5 and 6: President ’ s report these invest
Page 7 and 8: Secretary-treasurer/CEO s report
Page 9: The year in numbers BEHIND THE NUMB
Page 13 and 14: Financial report FINANCIAL REPORT A
Page 15 and 16: Financial report 2000 1999 $ 75,391
Page 17 and 18: Financial report 2000 1999 $ 236,15
Page 19 and 20: Financial report NOTES TO THE CONSO
Page 21 and 22: Financial report Investment risk (C
Page 23 and 24: Financial report 6. POST-RETIREMENT
Page 25 and 26: Minutes of the 2000 annual meeting
Page 33 and 34: CMPA leadership COMMITTEES (AUGUST
Page 35 and 36: CMPA leadership SENIOR MANAGEMENT S

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