Lexpert Special Editions

Lexpert Special Edition on Health Sciences

The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.

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24 www.lexpert.ca Feature "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

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