Law 1 – Rights & Obligations NUR1 424 Fall 2024 PDF

Deadline September 15th If interested, please let me know!  Law 1 – Rights & Obligations NUR1 424 – Fall 2024 Lecturer: Daria Kapnik @ Copyrighted 2024  Introduction @ Copyrighted 2024 Plan...

Deadline September 15th If interested, please let me know!  Law 1 – Rights & Obligations NUR1 424 – Fall 2024 Lecturer: Daria Kapnik @ Copyrighted 2024  Introduction @ Copyrighted 2024 Plan 1. Rights and 2. Capacity & 3. Legal Liability Obligations Informed Consent 3.1 Civil Liability- Overview 1.1 - Law 101 2.1 - Legal Framework - Core 3.2 Civil Liability- Core elements provisions 1.2 - Patient’s rights 3.2.1 Fault 2.2 - Duty to inform 1.3 - Professional obligations 3.2.2 Damages 2.3 - Criteria of informed 3.2.3 Causation consent 2.4 - Delegated Consent 2.5 - Recap.  1.1 Law 101 - Overview Canadian legal system operates on three levels of government: federal, provincial and municipal; The Constitution Act of 1982 (Schedule B to the Canada Act 1982), under the separation of powers, entrusts provinces with competence over health care matters (certain federal laws still deal with universal principles, such as accessibility and universality of care, etc); The scope and standards of practice for medical professionals and rights of users of health services are determined by provincial laws and regulations.; Ethical standards and best professional practices are often imposed by the provincial professional orders, such as the OIIQ; Disciplinary boards can sanction deviations. The authorization to practice the nursing profession is an example: the permit practice indicates that the nurse has demonstrated skills needed to integrate practice. @ Copyrighted 2024  1.1 - Law 101 I. Federal II. Provincial III. Professional Orders See Legal Framework for Healthcare on myCourses @ Copyrighted 2024  I. FEDERAL Exceptions (to the PROVINCIAL Administration of Health Services) 1. Spending power : targeted spending on health research, promotion and information, disease prevention & control, on projects in connection with provincial initiatives; 2. Health aspects in federal matters, such as health requirements for potential immigrants, veterans and military, inmates of federal penitentiaries, occupational health and safety standards for employees in federally regulated industries, like aviation, First Nations and Inuit, etc; 3. Criminal legislation, "directed at a legitimate public health evil"*, such as controlled substances, tobacco, cosmetics, medical and radiation-emitting devices, food & drugs, etc; In principle, accessibility and universality of care, are enshrined into the Charter of Human Rights and Freedoms, are applicable to all disputes regarding health matters and the(federal) Canada Health Act strives to "protect, promote and restore the physical and mental wellbeing of residents of Canada”. In practice, it is the provincial realities paint a true picture of accessibility of Canadians to health care and the Act ends up merely provides a financial framework allowing provinces to receive federal cash contributions; @ Copyrighted 2024  II. Provincial Overview Nearly ALL aspects of the rights and obligations of both users and providers of health and social services are defined by provinces: Quebec's Public Health Act deals in actual regulatory power with respect to matters of public concern, such as vaccination, contagious diseases, registries, powers of public health authorities, safety standards in drinking water, emergencies, and even includes penal (punitive) provisions. Rights of users are principally set out within the broader context of the Civil Code of Quebec (CCQ) and more specifically within the Act respecting health services and social services (AHSSS), as well as in various situation-specific acts, such as the Youth Protection Act, and Act Respecting the Protection of Persons whose Mental State Presents a Danger to Themselves or Others (P-38); The obligations of health providers mirror certain rights of users (e.g. to keep matters confidential, to provide continuity of services), and their actions are also regulated by their professional orders and professional & ethical standards (e.g. see the Nurses Act & its Regulation 9, the Code of ethics of nurses); Health providers are protected by the provincial health and safety norms, labour standards, and civil law norms, at par with the rest of the working population. @ Copyrighted 2024  II. Provincial Legal Instruments Legislation Examples: Public Health Act Civil Law Civil Code of Québec (CCQ)​ Charter of Human Rights and Freedoms Nurses Act (& its r.9, Code of ethics of nurses) Act respecting health services and social services (LSSSS)​ Youth Protection Act P-38: Act respecting the protection of persons whose mental state presents a danger to themselves or to others Legislation Jurisprudence http://legisquebec.gouv.qc.ca/ a.k.a Case Law* In court, to prove their point, lawyers can use other secondary instruments such as: Doctrinal writing Interpretations by legal departments of government agencies @ Copyrighted 2024 Legal encyclopedias & Treatises  III. Professional Orders Professional orders, such as the Ordre des infirmières et infirmiers du Québec (OIIQ) are created by provincial legislative acts. In the case of the OIIQ, it was created by Quebec's Nurses Act. They strive to ensure the protection of the general public, as it is required by Quebec's Professional Code C-26. They act as gatekeepers for the practice, ensuring that only qualified professionals are allowed to practice in an objective, knowledgeable, and transparent manner. @ Copyrighted 2024  III. Professional Orders: rudimentary principles Transparency is achieved by clearly spelling out: the mandate of the Order, recourses, and information available to the public, including information on the illegal practice of the profession, as well as by having investigative powers and processes as well as adequate arbitration and mediation tools; Knowledgeability or excellence is achieved by ensuring that professional guidelines are contemporary, that members receive continuing education, and that the Order issues publications and otherwise informs its members and the public on the profession; Finally, objectivity is established by uniformity of professional guidelines and practices, as well as in the use of its resources and mechanisms aimed at public protection, such as the ability to bring offenders before disciplinary boards. @ Copyrighted 2024  1.2 - Patient Rights @ Copyrighted 2024  1.2 Main Legislation = Articles 4 to 16 = User’s Rights Articles 17 onwards = User's Records @ Copyrighted 2024  1.2 AHSSS/LSSSS - Articles 4 to 16 Patients have the right to: Continuity and safety of services (art. 5) Receive services in English (art. 15) Be accompanied by a person of choice (art. 11) Choose a medical professional* (art. 6) *all within the material limits of the institutions providing the services (art. 13) Copyright © 2024 Ingram School of Nursing @ Copyrighted 2024  1.2 Other Legislation These rights are echoed in other legislative texts (we will see these later in the class!); - For example Art. 8 of AHSSS is mirrored by Art. 40 & 41 of the Code of ethics of nurses, which requires nurses to provide explanations for the client’s comprehension of the care and to obtain a free and enlightened consent to care, which in turn is guaranteed by articles 10 & 11 of the Civil Code of Quebec (CCQ). [These articles are discussed in detail in section 2 of the slides, just shown here to illustrate the principle] - By the same token, confidentiality of the user’s record under article 19 of the AHSSS is complemented certain exceptions under Professional Code article 60.4 V.1 Copyright © 2022 Ingram School of Nursing @ Copyrighted 2024  1.3 - Professional Obligations @ Copyrighted 2024 1.3 Overview Doctors and nurses have a statutory duty inform and to obtain free and enlightened consent, produce a correct diagnosis, treat, follow, and to respect professional secrecy. Doctors and nurses have an obligation of means (vs. obligation of result) towards patients. Objective Test (for determining whether or not nurse was negligent/failed in his or her obligations): – Did the nurse act with the ordinary competence and diligence of a nurse placed in the same circumstances (nurse having the same specialty and practicing in the same type of environment)? – Must provide care that adheres to the current, generally accepted standards and practices in similar situations. The hospital has a legal responsibility toward its patients. It is vicariously liable (1463 CCQ) for the actions of its staff. @ Copyrighted 2024  1.3 Rights Reflect Obligations Patient Professional Rights Obligations AHSSS/LSSSS Article 19 Nurses Act, Article 31 Professional Code, Article 60.4 Confidentiality of Duty of Confidentiality Patient’s Record & Exceptions Copyright © 2024 Ingram School of Nursing @ Copyrighted 2024  1.3 Health professionals have a duty: To inform To obtain free and enlightened consent To produce a correct diagnosis (IPS/MD) To treat To follow To ensure professional secrecy V.1 @ Copyrighted 2024 1.3 Standard of Care (in the context of Professional Liability) Obligation of Means Obligation of Results Responsible for doing your job well Responsible for the outcome Objective Test  Did you act with the ordinary competence and diligence of a nurse placed in the same circumstances?  Did you provide care that adheres to the current, generally accepted standards and practices in similar situations? Copyright © 2024 Ingram School of Nursing  1.3 Standard of Care (cont’d) Standard of prudent and diligent doctor placed in the same circumstances; did the doctor act in accordance with the “règles de l’art”/standards of treatment recognized by the medical community, as accepted at the time* of the incident (*see Ter Neuzen v. Korn 3 SCR 674, whereby the SCC instructs that physicians ought to be judged on the basis of knowledge that was to be reasonably possessed at the time the incident occurred) Exceptions to these established “rules of practice” are extremely rare; Not enough to show that the doctor did not choose the "best treatment”; Standard is set in part because of the realization that courts of law do not have the required expertise to settle scientific disputes, which involve diverging professional opinions; 23 1.3 Who is liable when a patient sues? Article 1463 CCQ V.1  1.3 Who is Liable? $$$ Employer Civil Code of Quebec, Article 1463 The principle is liable to reparation for injury caused by the fault of his agents and servants in the performance of their duties; nevertheless, he retains his recourses against them. People who Employer can represent & act sue agents on behalf of NUR1 - 424 Copyright © 2024 Ingram School of Nursing V.1 1.3 But what about: - Intention? - Error of Judgement vs. Professional Fault?  1.3 Negligence vs. Misconduct Professional Negligence Professional Misconduct “Failure to use such care as a Doing lawful things (i.e., practice) in reasonably prudent and careful person an unlawful manner. would use under similar circumstances” (AJN, 2003) Examples: practicing while impaired Required elements: failing to renew one’s license Fault improperly or unlawfully delegating Damages a controlled act failing to keep records as required Causal Link Consequence = usually Administrative Consequence = Civil Law Suit (i.e., OIIQ’s Disciplinary Council) Copyright © 2024 Ingram School of Nursing V.1  1.3 Important Distinctions Nurses are required to know and apply specific recognized standards of practice in their field of specialty (Cloutier c. Centre hospitalier de Laval); Behavior that does not meet established standards of care can be considered a breach of obligations, even if the nurse is convinced that she is doing the right thing, since intentionality is not considered a parameter for establishing fault (Ciment du Saint-Laurent inc. c. Barrette 2008 SCC 64); Committing a professional fault is distinguished from a simple error of judgment through deviation from the standards of practice, and its assessment is based on what a "Reasonable professional" would have done in such circumstances. @ Copyrighted 2024  2.1 Legal Framework – Core provisions Civil Code of Quebec, Article 10 Every person is inviolable and is entitled to the integrity of his person. Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent. LSSSS Code of Ethics, Article 40 9 A nurse shall provide her or his client with all the No person may be made to undergo care explanations necessary for the client’s comprehension of the of any nature, whether for examination, care, treatment or specimen taking, treatment, other professional services being provided to him or her by the or any other intervention, except with his nurse.​ NUR1 - 424 consent. Copyright © 2022 Ingram School of Nursing V.1 2.1 Legal Framework – Core provisions Civil Code of Quebec, Article 11 No one may be made to undergo care of any nature, whether for examination, specimen taking, removal of tissue, treatment or any other act, except with his consent. Except as otherwise provided by law, the consent is subject to no other formal requirement and may be withdrawn at any time, even verbally…. Code of Ethics, Article 41 When a nurse is obliged to obtain a free and enlightened consent, she or he shall:​ 1. provide the client with all the information required for that purpose;​ 2. ensure that the client’s consent remains free and informed for the duration of the period during which she or he provides care, treatment or other professional services;​ 3. respect the client’s right to revoke** his or her consent at any time.​ V.1 2.1 Legal Framework – Core provisions LSSSS, Article 8 Before giving his consent to care concerning him, every user of health services and social services is entitled to be informed of his state of health and welfare and to be acquainted with the various options* open to him and the risks and consequences generally associated with each option. The user is also entitled to be informed, as soon as possible, of any accident…(e.g. wrongly administered medication) Don’t forget that the options need to reflect the accepted professional practices and not be referral to or providing of “products or methods that could be harmful to health or miracle treatments” (Art. 4 Code of Ethics of Nurses) V.1  Ciarlariello v. Schater (SCC) Case example to underscore importance of consent to protect in civil lawsuit. ​(Details: nurse overcomes language barrier and provides thorough information) C. needed to undergo two angiograms for the purposes of locating a S u p r e m suspected aneurysm. e C o u r t r u l i n g Procedure was associated with serious risks and during the second test, C has i n a c a s e started moaning, was distressed, but as soon as she got better, the radiologist o f a m e d i decided to complete the test after getting C’s “please go ahead”, which has c a l p r o rendered her quadriplegic and soon after, deceased. c e d u r e g o n e w r It was ruled that there was no evidence to suggest that her condition Image: Takayasu. By Weiss PF, Corao DA, Pollock AN, Finkel TH, Smith SE, CC BY 2.0 o n g. between the two exams has deteriorated to the point that her consent was , via Wikimedia Commons compromised and thus invalidated. Also, given the risks of not finding the aneurysm outweighing the risk of potential quadriplegia, it was noted that a “reasonable patient” in C’s position would still have consented. 2.2 Duty to Inform The patient’s right to give free and enlightened Issues for which patients have a right to consent brings about a duty information include: to inform on the part of the doctor, nurse and other The condition of their health; hospital personnel. Prognosis; Treatment options; Consequences and risks associated with a given treatment. NUR1 - 424 Copyright © 2022 Ingram School of Nursing V.1  2.3 Criteria of informed consent 1. Person must have capacity to consent or refuse care (treatment) 2. Consent must be given freely – no coercion, manipulation, or deception 3. Consent must be enlightened – patient must have all the information necessary to make an informed decision 35  2.3 Criteria of informed consent - Exception All patients must give informed consent prior to receiving care Exception: Emergencies Art. 13 CCQ: Consent to medical care is not required in case of emergency if the (1) life of the person is in danger or his integrity is threatened AND (2) his consent cannot be obtained in due time. It is required, however, where the care is unusual or has become useless or where its consequences could be intolerable for the person.” 36 2.3 Informed consent - Capacity Legal Incapacity Can still say what happens to your body Incapacity of Consenting to Care Unable to say what happens to your body CCQ CCQ 12 16 NUR1 - 424 V.1  2.3 Informed consent - Capacity Capacity is a person’s legal ability to exercise his or her legal rights. Includes right to consent to or refuse treatment Capacity is presumed UNLESS: The person is a minor The person is incapable of giving consent (temporarily or pursuant to a Court order) 38 2.3 Informed consent - Capacity Where NO bona fide Civil Code of Quebec, Article 16 delegated The authorization of the court is necessary where:​ consent, NO the person who may give consent to care required by the state of health of a minor or a person consent to of full age who is incapable of giving his consent is prevented from doing so or, without care & NO justification, refuses to do so; capacity - it is necessary to submit a minor 14 years of age or over to care he refuses, except in the case Court Order of emergency if his life is in danger or his integrity threatened, in which case the consent of the person having parental authority, or the tutor is sufficient.​ a person of full age who is incapable of giving his consent categorically refuses to receive care, except in the case of hygienic care or emergency; NUR1 - 424 Copyright © 2022 Ingram School of Nursing V.1  2.3 Informed consent - Capacity Hospitals habitually seek court orders for Treatment & Psychiatric confinement for persons 1. Incapable/inapt to consent to care 2. Categorically refusing treatment If successful in proving each element, need to demonstrate 3. The treatment is appropriate 1.Is the treatment required, and if so, is it sufficiently described? F.D. c. Centre universitaire de santé 2. Do the benefits outweigh the negative consequences? McGill, 2015 QCCA 139 3. How long should the authorization be granted for?  2.3 Informed consent - Capacity 1. To establish (in)Capacity: For Confinement orders: psych reports describe the behavior, moods & admittance details; For Tx orders, the case of Institut Philippe-Pinel de Montréal c. A.G. 2012 has set out standards that a detailed psychiatric report at the heart of the motion must address the 5 “Nova Scotia” questions* 2. For care refusal : there must be proof of treatment being offered and refused (usually testimony of psychiatrist & residents); NUR1 - 424 Copyright © 2022 Ingram School of Nursing V.1 Starson v. Swayze (SCC) Supreme Court of Canada case on balance between values of: personal autonomy vs. “The wisdom of Professor Starson’s treatment decision effective medical is irrelevant …. If Professor Starson is capable, he is fully treatment entitled to make a decision that the Board, or other reasonable persons, may perceive as foolish. Tx order NOT granted The Board improperly allowed its own conception of Professor Starson’s best interests to influence its finding of incapacity. ” (Starson v. Swayze, par. 112)  2.3 Informed consent - Capacity M.B. c. Centre hospitalier Pierre-Le Gardeur (C.A., 2004-02-25) Patient with multiple sclerosis lives alone and repeatedly falls in her apartment; Accepts medical and surgical treatments proposed to her, categorically refuses the accommodation measures (hébergement) Evidence in the case demonstrates that she "simply does not understand the parameters of the decision she has to make with respect to her accommodations …minimizes the effects of her illness …does not understand the extent of her cognitive and functional limitations….does not understand the beneficial effects or the consequences associated with refusing the proposed accommodation Hospital has obtained court authorization as to that specific aspect of her care; Limited Tx order granted V.1  2.3 Informed consent - Capacity Minors over 14 years of age: May give consent alone to care required by the state of health (14 CCQ), however, persons having parental authority or tutor must be informed, if his state of health requires that he remain in a health/social services establishment for over 12 hours. care not required by the state of his health (17 CCQ), however, consent of the person having parental authority or of the tutor is required if the care entails a serious risk for the health of the minor and may cause him grave and permanent effects. Copyright © 2022 Ingram School of Nursing  2.3 Informed consent - Capacity Minors under 14 years of age: “Consent required by the state of health of a minor is given by the person having parental authority or by his tutor.” (14 CCQ) Where care is not required by the state of health, it is “given by the person having parental authority or the mandatary, tutor or curator; the authorization of the court is also necessary if the care entails a serious risk to health or if it may cause grave and permanent effects.” (18 CCQ) V.1 2.3 Informed consent - Free If there are advanced directives, such as a “Ulysses contract” or end of life directives that the health professionals become aware of, must be respected; A ”classic” example are Jehovah’s witnesses cases: Malette v. Shuman (1990) 72 O.R. (2d) 417 , where in order to save M’s life, Dr. S has decided to ignore the written instructions on her JW card and “on his own responsibility” administered the life saving blood transfusion. Dr. S was charged with the tort of battery (i.e. found to be at fault) and the Ontario Court of Appeal has awarded damages to M. Notice that the case in the context of emergency care!  2.3 Informed consent - Free 1399. Consent must Example of a defects of Consent: (consent is invalid/vitiated) be free and Fear: Consent under pressure often resulting from the circumstances enlightened. It may the patient finds himself in Norberg v. Wynrib 2 S.C.R. 226: be vitiated by error, fear or lesion. - Patient (Laura Norberg) was addicted to Fiorinal. - Doctor abused relationship of trust by requiring that the patient perform sexual favours in exchange for prescriptions for Fiorinal - Though the Supreme Court eventually decided the case on the basis of breach of fiduciary duty that the doctor had towards the patient, Justice La Forest in his reasons, based his analysis on the fact that there was a defect of consent because the patient’s addiction to Fiorinal was preventing her from consenting freely..  2.3 Informed consent - Enlightened Drolet v. Parenteau RJQ 689 (CA) Facts: Ms. Drolet, who works as a secretary in a law firm consults Dr. Parenteau, who after an examination declares her to be a “fit candidate for aesthetic surgery of the eyelids (blepharoplasty), and [explains] the general nature of the operation.” He gives her 6-page information sheet, which contains no reference to risk of blindness; D comes to see P the following year, and after “summary examination and further explanations, but no discussion of risks”, he tells her that it is her decision and schedules the operation; Post-op recovery room, D complains of pain in her left eye and is given pain killers, instructions and goes home with her daughter; Next day, sees P at the clinic, who diagnoses conjunctivitis, affirming that it can’t be haematoma, stating “that would make the eyeball much harder”, suggesting D sees an ophthalmologist a week later; D is diagnosed with total loss of vision in left eye; P knew of risk but thought it was theoretical and failed to interpret monocular pain as a sign. Issues: Did P have a duty to inform D of possible risks the surgery would entail, including blindness? Is P liable for D’s injury?  2.3 Informed consent - Enlightened Drolet v. Parenteau RJQ 689 (C Decision: P had a duty to inform D of such a severe, albeit it remote, risk and is liable for her injuries; The instructions given to D set to reassure patients, affirming that “il n'y as généralement que peu de douleur et qu'elles sont contrôlées par les médicaments prescrits” instead of warning that monocular pain is an urgent symptom of serious complications; If D has been adequately informed, she would have likely avoided damages, as she would not have left the same day (to avoid extra fees) and taken her symptoms seriously; Moreover, the information provided has been misleading and incomplete, failing to disclose long term consequences; It’s not just a matter of statististical probability, but of the severity of consequences for a particular patient: (Par 73): “L'intensité du devoir d'information se mesure donc non seulement par rapport à la probabilité statistique de sa réalisation, mais aussi par rapport à la nature de l'intervention et aux conditions particulières, propres au patient lui-même et donc à l'impact potentiel de la réalisation des risques sur lui. À cet égard notre jurisprudence est plus sévère lorsqu'il s'agit de chirurgie élective comme dans le cas de la chirurgie cosmétique.” 2.4 Delegated consent – When do we need it? Civil Code of Quebec, Article 15 Where it is ascertained that a person of full age is incapable of giving consent to care required by his or her state of health, consent is given by his or her mandatory, tutor or curator. If the person of full age is not so represented, consent is given by his or her married, civil union or de facto spouse or, if the person has no spouse or his or her spouse is prevented from giving consent, it is given by a close relative or a person who shows a special interest in the person of full age. 2.4 Delegated consent – How does a Delegate decide? Civil Code of Quebec, Article 12 A person who gives his consent to or refuses care for another person is bound to act in the sole interest of that person, complying, as far as possible, with any wishes the latter may have expressed. If he gives his consent, he shall ensure that the care is beneficial notwithstanding the gravity and permanence of certain of its effects, that it is advisable in the circumstances and that the risks incurred are not disproportionate to the anticipated benefit. 2.4 Delegated consent – “Pecking Order”* * Subject to a legal 1. Person decides for themselves challenge 2. Mandatory/Tutor/Curator if required 3. Spouse (married, civil union, de facto) 4. Family members (children or elderly parents) 5. Close friend or relative V.1  2.5 Recap Patient has capacity to consent (Art. 11 CCQ) No capacity to consent and represented (Art. 15 CCQ) No capacity to consent but not represented (Art. 15 CCQ) Unjustified refusal or impossible to reach representative or substitute (Art. 16 CCQ) Minor is over 14 years of age (Art. 14/17 CCQ) Minor is under 18 years of age (Art. 18 CCQ) No capacity and categorically refuses treatment, regardless of consent by substitute (Art. 16 CCQ) 3. Legal Liability - Overview Everyone Criminal Code Civil Code CCQ CCQ 1457 1458 Professionals OIIQ Administrative Responsibility Disciplinary Board 3.1 Civil Liability - Overview CCQ 1457 Extracontractual Claim: Obligation not to cause harm. Patient – Hospital Patient – Healthcare Professional (Emergency/Hospital) CCQ Contractual Claim: Obligation to honour contractual undertakings. 1458 Patient – Doctor Patient – Private Nurse V.1 3.2 Civil Liability – 3 core elements Elements of liability under 1. Fault – reasonable professional standard Article 1457 C.C.Q. 2. Causation – adequate unsevered causal link between fault and damages Standard of Proof: Balance of 3. Damages – bodily, moral, material harm/prejudice Probabilities = 50 + 1 Prescription Period: Limitation period = 3 years  3.2.1 Civil Liability - Fault An act or omission by a health care provider in which the care they have provided to a patient deviates from accepted standards of practice in the medical community in which patient has been injured (including death). Involves conduct that falls short of what a reasonable person would do to protect another from foreseeable risks of harm.  3.2.1 Civil Liability - Fault Hubert c. Centre Hospitalier des Vallées-de-l’Outaouais EYB 2005-96157 (C.S.) Facts: – Plaintiff suffers from episodes of hypocalcaemia. – Hospitalized following surgery for an unrelated issue. – When her calcium levels dropped, Head Nurse administered calcium chloride by IV (prescribed by telephone) that extravasated into patient's arm. – Plaintiff alleges that nursing staff's monitoring of her state and care during the administration of calcium chloride was negligent. Decision: Plaintiff’s action is granted in part and damages are awarded The case was largely decided in favour of the Plaintiff due to the proof offered by the Auxiliary Nurse, who was deemed as a credible witness due to the quality of her notes. Head Nurse’s notes that go against the Plaintiff’s account were all late notes and were contradicted by the other evidence. Plaintiff proved that damages wouldn't have occurred had the calcium chloride been administered pursuant to generally accepted practice (please next section on causation) and that doctors not alerted regarding degradation of patient's health (faulty action of the staff)  3.2.1 Civil Liability - Fault Farkas c. Réseau Santé Richelieu Yamaska EYB 2007-124274 (C.S.) Facts: – Plaintiff (Patient) has brought forth a medical malpractice action against the Hospital following an infection at IV site that led to septic thrombophlebitis in a vein in her arm. – Plaintiff claims that nursing staff’s negligence led to the infection. She alleged that the line was badly installed, reinstalled after it dragged on the floor and the nursing staff completely ignored her requests for help. Decision: Plaintiff’s action is dismissed Plaintiff did not prove her version of the story on a balance of probabilities because it was implausible and not credible. Nursing notes are complete and credible because charting took place within an hour of the event. Possible that her IV line became dislodged, but that is not a fault giving rise to Hospital/Staff liability. Infection likely caused by Plaintiff when she tried to re-insert the tube herself. Furthermore: no proof of physical damages.  3.2.2 Civil Liability - Damages Damages can be: Pecuniary: lost wages, medical bills, damage to property Non-pecuniary: pain and suffering, mental distress Damages are compensatory in nature  3.2.2 Civil Liability - Damages Roy c. Mout 2015 QCCA 692 Facts : -Appellant suffered from a bacterial infection (staph aureus) following her c-section in December 1998, which has attacked her sacro-iliaque tissues/bones. -Discharged from CHUM on Christmas Day, in spite of increased pain. -Re-admitted to BMP on 27.12.98 (at night), complaining of intense pain, chills and fever and transferred back to CHUM on 29.12.98 – infection detected and diagnosed. Hospitalized until 23.01.99 -Admission by parties with respect to quantum of damages (including moral damages), if fault/causation proven. -Lower court has held that: several faults committed, but no causation, the patient has appealed. Decision: Appeal Allowed – moral damages awarded -No clear evidence that earlier antibiotics would have avoided damages to sacro-iliac, so no damages awarded on these grounds. -BUT – Appellant’s testimony confirmed fact that these faults caused her moral damages – she felt that she wasn’t being taken seriously and that she was going to die. Feelings exacerbated by lengthy court case. -Delays associated with diagnosis did cause uncertainty that led to “moral suffering” for Appellant & her 3.2.3 Civil Liability - Causation Adequate causation: seeks to eliminate the mere circumstances of the damage and isolate its immediate cause. – Could the events have been caused by a situation’s natural evolution? – Concept of reasonable foreseeability and “but for” test are used to determine causation (please see the next slide) – Causation often difficult to determine Simply note that for gross fault, mentioned under 1474 CCQ, (“… gross fault is a fault which shows gross recklessness, gross carelessness or gross negligence…”), the tribunals are less demanding with respect to the proof of causation; 3.2.3 Civil Liability - Causation Adequate causation: seeks to eliminate the mere circumstances of the damage and isolate its immediate cause. – Could the events have been caused by a situation’s natural evolution? – Concept of reasonable foreseeability and “but for” test are used to determine causation (please see the next slide) – Causation often difficult to determine Simply note that for gross fault, mentioned under 1474 CCQ, (“… gross fault is a fault which shows gross recklessness, gross carelessness or gross negligence…”), the tribunals are less demanding with respect to the proof of causation;  3.2.3 Civil Liability - Causation Legal, not scientific standard Snell v. Farrell 1990 2 SCR 311 In a a traditional liability scenario, the principle of causation is that the plaintiff must prove on a balance of probabilities that, but for the conduct of the defendant, the plaintiff would have not sustained his injuries. In medical malpractice cases, the court concludes that “the legal and ultimate burden remains with the plaintiff, as in the traditional approach, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn, although positive or scientific proof of causation has not been adduced.” (There is no need for scientific certainty!)  3.2.3 Civil Liability - Causation Snell v. Farrell 1990 2 SCR 311– cont’d. The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone"  3.2.3 Civil Liability - Causation Ediger v. Johnston 2 S.C.R. 98 Facts: Cassidy Ediger suffered from persistent bradycardia during her birth. This has caused severe brain damage that her with spastic quadriplegia and cerebral palsy, a life expectancy of 38 years, all of which she is to spend confined to a wheel chair and completely unable to take care of her daily needs. Dr. William Johnston, who delivered Cassidy has decided to use a mid-level forceps procedure, that the Supreme Court has characterized as “the riskiest type of forceps delivery”, WITHOUT informing Mrs. Ediger of the risks of this delivery method. The Dr. did NOT make arrangements, nor even inquired as to the availability of an anaesthetist or operating room staff in the event of an emergency C-section. At some point during the delivery Dr. decides to abandon the forceps method and leaves the room to make arrangements for a Caesarean section. In the meantime C’s umbilical cord was obstructed, which has led to her injuries. Issues: 1) Did the failure to have back-up in case of emergency (breach of standard of care) cause the injury? 2) Did the doctor fail in his duty to inform?  3.2.3 Civil Liability - Causation Ediger v. Johnston 2 S.C.R. 98 – cont’d. Decision : The trial judge answered both questions in the affirmative, confirming that the Dr. should have had surgical backup available before attempting the forceps procedure AND should have obtained consent from Cassidy’s mother prior to the procedure. She was awarded $3,224,000 in damages; Court of Appeal has overturned decision; SCC has backed up the trial judge and awarded damages; The case has been hailed as a big victory for malpractice victims, since it affirms Snell’s standard for causation, saying that causation does not require scientific certainty and that courts may draw an inference against a defendant if they do not introduce sufficient evidence contrary to the plaintiff’s. This takes into the account the inequality of positions between litigants and levels the playing field; Ms. Ediger did not have to prove the exact way that mid-forceps attempt caused her daughter’s bradycardia, but that on the balance of probabilities, it was likely that it did  3.2.3 Civil Liability - Causation Bérubé c. Hôpital Hôtel-Dieu-de-Lévis J.E. 2003- 769 (C.A.) Facts: Appellant underwent breast reduction surgery. While surgery went well, her health deteriorated in following days and she suffered from toxic shock due to a virulent staph infection. Infection led to amputation of first few phalanges of her fingers and toes and partial deafness. Appellant alleges nursing staff should have caught warning signs of her infection & alerted doctors sooner. Superi or Court held that the nursing staff’s lack of supervision wasn't causal with Plaintiff's damages Decision: Appeal dismissed Nursing notes during night of April 22 to April 23 are incomplete as they do not note Plaintiff's blood pressure, in spite of the fact that it had started to crash during the evening of April 22. However, even if nurses had properly recorded Appellant's vital signs and alerted doctors, they would have been unable to avoid the necrosis of patient's fingers and toes given the rare, unpredictable and virulent nature of toxic shock (« même en présence d’une faute du personnel infirmier, rien ne pouvait être fait, ni pour anticiper, ni pour prévenir, ni pour éviter le choc toxique » (par. 32)) Furthermore, evidence shows that the first signs of toxic shock took place only at noon on April 23. In addition to illustrating causation, the Court of Appeal here reminds of the importance of contemporaneous notes, noting at par.24 that « ce qui n’a pas été noté, n’a pas en principe été fait»;  3.2.3 Civil Liability - Causation Kauffman v. Toronto Transit Commission, S.C.R. 251 Facts: Plaintiff gets injured on the way up an escalator because youth play around and push a man that falls on the Plaintiff (PF), causing her injuries. Allegations: PF says that TTC was negligent in not installing a proper handrail, claiming that she would have been able to grab the handrail and thus prevent the injury. Decision: causal relation between the alleged negligence and the injury must be made out by the evidence and not left to the conjecture of the jury. THANK YOU for your attention! 72 Check Room Location Complete the Preparatory Meeting Know your group # and sit with them