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"I think that's going to improve access to
justice for everybody" by cutting costs and the
time it takes to get a matter to trial or hearing,
says Prather. "is is one silver lining : that it's
forced us all to [do] something that might
have taken many years to
achieve" otherwise.
Medical malpractice
litigation
In November, the Ontario
government passed legis-
lation called Supporting
Ontario's Recovery Act,
which offers legal protec-
tion to those acting in
good faith when imple-
menting public health guidance and any
federal, provincial or municipal law in the
wake of the COVID-19 pandemic.
at won't provide complete protection
to health-care professionals and hospitals
operating during the pandemic. However, it
could mitigate the risks of medical malprac-
tice litigation and formal complaints made
to medical colleges and hospitals, says Cindy
Clarke of Borden Ladner Gervais LLP
in Toronto.
"Although SORA does not protect against
allegations of gross negligence, it does rein-
force the point that those acting reason-
ably ought to be protected," says Clarke,
who is BLG's national group head, clients,
sectors and new services, and defends claims
against hospitals and health organizations in
her practice.
While not all Canadian jurisdictions have
stand-alone legislation such as Ontario's,
several provinces, including Alberta, are in
the process of introducing something similar,
she says.
Also, in response to the pandemic, health-
care professionals are required to act reason-
ably and outside of their defined scope of
practice and taking on additional responsi-
bilities, she adds.
A new regulation under Ontario's
Emergency Management and Civil
Protection Act authorizes health-care profes-
sionals to provide patient care services outside
their regular scope of practice. It enables
hospitals to employ, contract, appoint or
otherwise engage regulated health profes-
sionals from out of province if doing so is
necessary to "respond to, prevent or alleviate
the effects of the outbreak of " COVID-19.
"I think time will tell whether that leads
to more litigation," says Clarke, "or whether
there's a broader acceptance that everyone
has done everything they can to respond
[using ] all available resources."
For several years before the onset of
COVID-19, there were fewer lawsuits.
However, the filed ones were potentially
high-value lawsuits involving compromised
infants and significant neurological injuries.
"As a result of the pandemic, we may start
to see more lawsuits over delay in diagnosis
cases," Prather says, as patients have been
delayed in seeing physicians or have engaged
with them only virtually. at litigation may
extend to delayed surgeries, too.
"I THINK THAT WE'RE LIKELY TO SEE
MORE LAWSUITS ARISING OUT OF
DELAYS IN DIAGNOSIS BECAUSE OF
THE ISOLATION THAT'S BEEN
REQUIRED FOR COVID."
Valerie Prather
BENNETT JONES LLP