Final Flashcards
Negligence
Brach of tort law or breach of standard care. Failure to exercise reasonable standard of care in circumstance. Liability for careless or substandrad care
Mustafic Vs Smith
Doc dives dpressed patient day pass and he kills himself and 2 kids. Doctor was not negligent because event was not forseeable. Reasonable decision despite being wrong
6 elements of negligence action
Duty of care Standrad care and its breach Causation Remoteness of damages Actual loss Prejudical conduct
Duty of care
Plaintiff proves doctor owed patient legal obligation to reasonable standard of care. Wrongful positive acts creating forsseable risk of injury
Standard of care
Determined by expert witness. Profesisonals with more qualifications are held to higher standrad
Remoteness of damages
Determine if causal relationship is too teuous or remote to warrant recovery of losses. losses must be a forsseable result of damages
Causation
Determien negligent conduct in plaintiff losses
Actual loss
Must be recoverable by tort law. Doesnt include grief or detah
Prejudicial conduct
Negligence damages are reduced if defendant can prove that plaintiff contributed to negligent act. Voluntary assumption of risk
2 Defenses to negligence
Customary practice–> court can reject if unsafe
Fiscal restriant–> courts dont like to accept this
Law estate vs Simcoe
Doc cant consider costs when makign tretament descions
Jinks Vs Caldwell
Patient drowns in hospital bath tub. Hospital found liable for fialure to protect patient by not having enough nurses on duty.
Mitchell vs Ontario
Plaintiff kid dies in hospital waiting room. Court said you cant sue goverment for policy matters, and there was no act of bad faith towards them. Damages awarded for breach of fiduciary duty and public office
Government appoined task force
Optional, no fault compensation system , patient awarded without proving HCP was negligent–> avoid healthcare injuries.
Easy win, but tort law suits come up with more awards
McKinnon vs Grand River
Optional surgery for uncomfortable throacic outlet disables patiet when doc doesnt do good pre- crae and no CV unit. Court found surgeon liable for breach of satndard care
Crawford vs. Penny
Locality rule. Doc fialed to provide adequate care for diabtes mom and fat baby who had herat attack. Doc argued locality rule but was found liable.
Paur vs Providence
Drunk, suicidal patient hangs himself in hospital bathroom. Nurses liable for breach of standrad care. Hospital liable for failign to protect patient
Comeau vs St John
Er discharged guy with chest pain on residents order, died next day. Resident liable for not appreciating limits. Specialist laible. Hospital liable for not enforcing poliy
GI vs Rusch
Girl claimed sexual abuse and counsellor aided memory development. Girl reported to family and police, family sued for negligence in breahc of care of fiduciary duty to family and patient. Court rejected claim because family is not owed FD and it is good to encourage reporting
Jones Vs Kaney
Guy injured in crash diagnosed with PTSD by psychologist. Doc met with lawyer and signed thing saying she agreed he was exaggerating. Liable for lying in court
Negligence in informed consent
Plaintiff must prove that failure to disclose information in consent, caused them to get a tretament they wouldnt have otherwise agreed to. Pro-defendant test of causation
Non-material risks in disclosure
Factors that may concern the individual if they are an athlete
Bollman vs Soenen
Doc took out ureter during hysterectomy. Judge said plaintiff was only warned of bleedin/infection, wouldnt have had surgery otherwise. Doc was granted appeal. So low risk she would have done it anyway. No grounds for causation
Disclosing errors
HCP can common law and fiduciary duty to report mistakes to patient
Apology Act
Statement of regret can not be used as evidence , whether or not it implies fault.
4 Duties of Affirmative action
No duty to render aid, some actions apply to special relationships. Treat, refer, render aid/rescue, control
5 CPSO requirements to refuse to treat
Inform patient it contradicts beliefs Inform all options Expres sno moral judgements Timely and effective referral Mut provide emergency care
Duty to treat
Can’t refuse based on descrimination. Can limit size of practice
Duty to rescue/render aid
No HCP duty to assist at a scene. Only in course of esisting relationship
Good Samaritan Act
Protects those intervening in emergency unless grossly neglignet
Duty to refer
HCP liable if they exceed their capacity in treatmetn. Must make referral if needed
Duty to control
People who have legal authority over someone are liable for their conduct–> parents, teachers, psychiatrists and nusres
Ahmed Vs Stefaniu
Psychotic guy admitted involuntarily under MHA. Doc released him as voluntary and he murdered his sister. Doc negligent for breach of standard duty of care
Brown vs Alberta
Baby CT scan shows injury suspicious of being shaken. Dcotor liable for not reporting the abuse
DM vs BC
Methadone baby put in foster care with inadequate foster mom who shook her. Ministry laible for failing to protect kid
Ravikovich Vs Ontario
2 year old dies at daycare ministry knew was overcrowded. Ministry liable for fialing to protect kids
Occupational Healthy and Safety Act
Employers personally liable for failing to report abuse by their staff
3 factors in duty of care in references
Nature of info–> liable for someone you personally endorsed
Reliannce of info
Risks involved in job in question
Public records
Admissable in evidence and assumed to be true in court
Provincial offense for record keeping
Fined under MHA
Falsifying records
Civil liability, profesisonal discipline, provincial prosecution, criminal code offense
Provincial statutes with confidentiality, disclosure obligations
Eductaion act PHA MHA CFSA -- apply to individuals and agencies
Statutes applyign to public sector agencies
MFIPAA- municipal
FIPPA- provincial
Statutes applying to private agencies
PHIPPA
PHIPA
Collection use and disclosure of health information by HICs
MFIPPA/FIPPA
Provide people with right of access to info gov has on them
Protect privacy by restricting gov use with info
Quality of care information protection act
Disclosure to QOC comitee in deliberations. Limtits acces to info and makes it inadmissable in civil court
PIPEDA
Governs info used in commercial activities. Doesnt apply to HCPs. Displaced by provincial legislation, PHIPA but not QCIPA
Statutory retention
Hospitals keep patient records for 10 years, or untila ge 28 for minors
Confidentiality under RHPA
Profesisonal misconduct to breach
Common law consequences for BOC
Sued by patient for contratc breach, fired for employee contract breach.
Intrusion on seclusion and invasion of privacy
Wrongful accessign
Wrongful disclosing
Sources of consequence for BOC
Fiduciary duty
Regulatory college
Prov/fed statute
Professional
Privelege
Right to refuse to disclose confidential info in mandatory reporting or court
Solicitor/Client privilege
Only automatically privileged profesisonal relationship. Info disclosed in seeking legal advice. Cant be waived by the lawyer. Statemetn cant be in futherasnce of crime
Litigation privilege
Statements and documents in trial preparations to help settle cases out of court. Narrowed recently
Spousal privege
Person can choose to testify for Crown aginst spouse but cant be forced. Can limit disclosure
Informant privilege
Prevents dislcosure of informant info unless needed to to prove innocence . Belongs to crown and informant, cant be waived without conset
4 Slavutych tetss for priveliege
Communication must occur in confidence
Confidentiality must be crutial in maintaining relationship
Society must foster relationship
Harm to relationship must outweigh public interest in revealing info
R vs Gruenke
Woman confessed to priest about murder, who was claled to testify. Woman argued convo should be privleged. Court said no because it wasnt in religious interest. SSC said no Slavutych
Prov/federal privelege
Fed–. criminal law, constitution– decide what evidence is admissable
Prov– CFSA, QCIPA
Charter sections that privelege can violate in criminal cases
7 and 11
R. Vs Oconnor
SSC balance of right of victim and accused in disclosing medical records in sexual assault cases. Third party record (Crown) are not subject to automatic disclosure
Criminal Code Amendments, oconnor
Govern diclosure of records in third party possession. Crown must notify accused of possession. Accused applies for disclosure. Court can disclose it to court, and then defense
Statutues governing disclosure without consent
MHA
PHIPA
Tadros Vs Peel
Grouhphome man charges dropped for 8 child sexual assault cases. Consented for police chec for job, contacted toronto police. Mans injunction to have records destroyed was denied.
Disclosure in public interest
In order to prevent miscarriage of justice like wrongful conviction
Board vs Dr.Hansen
Doc thought former patient was lyign about sexual assault, contacted crown by duty to report, new trial happened. College suspened doctor for being incompetent
PHIPA disclosure by HIC without consent
Health officer, PGt, childrens aid, lawyer
Head of residential institution
Person doing legal investigation
Defamation
Balance of tort law to protect repuatation and right to free speech
3 defenses for defamation
Justification
Qualified Priveliege
Absolute Privilege
3 Absolute privilege
Public interest outweighs protection of reputation.
In cabinet or on legislative floor, court
Solicitor client
Quasi judicial body
Read vs Munt
Doc appointed to assess mother in custody case. She said he was bias and sued in defamation. He said it was privileged in litigation but court rejected defense. Needs to be made in court
Schut vs Magee
Defendant wrote 2 letters to COP about doctor incompetence, sued in defamation. Court said it was privileged as COP is a quasi judicial body
Qualified privilege
Person with legal duty to make statement, recieving person has duty to listen.
Evidence acts
May compell someone to disclose unless privileged. Doc must obtain consent before diclosing info to lawyer
Failure to mandatory report
Civilly liable. But mistep and you could breach confidentiality
Criminal code MR
Treason to RCMP or justic of peace
Highway traffic act
Must report condiitons of 16 by doc and optometrist. No duty of other HCP unless serious enough to breach under duty to warn
HPPA
HCP must report communicable disease to MOH. Name of HIV patient in preventative tretament can be withheld
Coroners act
Everyone must report suspicious deaths. MR for detah in institutions
Hospital mangement regulation 965
Must notify hospital admin if patient admitted is dangerous
Vital staistics act
HCP duty to register births and still irths with Ontario registrar general
LTCHA
Everyone must report abuse suspicions to director. Failure to report by liscensee or staff is an offense
Health information protection act
Employer must notify college if they fire or discipline HCP for misuse of patient info
Disabilities Iclusion act
Agencies must immediately report absue suspicions to police
RHPA
Must report suspicion that HCP is sexually abusing a patient, duty only arises if HCP name is known. Must be within 30 days or longer if it will continue
CFSA
Anyone suspicious of child abuse of care giver must report to children aid . Failure to protect by police, teacher, clergy or HCP is provincial offense. Even if info is confidential with the exception of s/C
Rolon vs Bell
Nurse reported granpa to CFSA, interview said he was fine, sued in defamaiton. Defendants claim was accepted because she acted in good faith, and qualified privilege out of duty to report
TJ vs Barber
Counsellor took french girl to hospital, thought she wantefd to kill dad. Counsellor negligent, no privilege . BOC because threat couldnt be carried out, plaintiff awarded damages
Nissen vs Durham
Sued gov for fialign to protect her as informant. Plaintiff awarded damges for police breach of duty to protect.
