Lexpert Special Editions

26 www.lexpert.ca Feature Given the extraordinary circumstances of the pandemic, however, Clarke says, "I expect that, in the months ahead, wise plaintiff 's counsel will investigate potential malprac- tice claims carefully." She says she hopes they "will appreciate that health-care providers are going above and beyond to deliver the best possible care in truly extraordinary circum- stances and that, in the end, we will only see a limited number of malpractice claims arising out of the COVID pandemic." Class actions Plaintiffs have filed dozens of legal actions across Canada due to conditions in long- term-care facilities and their responses to the spread of the virus, which le thou- sands of the elderly dead and others sick. At least two dozen legal actions have been filed in Ontario alone, including the filing of class action suits, an injunction, a request for criminal investigation and the filing of several statements of claim. Whether the class actions can be main- tained is not yet clear, says Harte, because of the individuality in the circumstances of the seniors who became ill or died and the requirement for commonality in a class to get certification. Professional regulation While lawsuits may have flattened in recent years, there's been a significant increase in complaints to medical colleges and hospitals over the past number of years, says Prather, which COVID has accelerated. And the complaints aren't just about medical care. "We see complaints about communica- tion issues, that [patients] weren't treated fairly or nicely," she says. "With that increase in complaints, the colleges and hospi- tals have a backlog to deal with, and there are a lot of resources required" to resolve complaints in a timely fashion. Hospitals also control doctors' privileges, which they can withdraw. Prather also says professional regulatory complaints may arise from the trend toward providing virtual care. "Whenever you have to transition into using a new type of system," such as the technologies needed to requisi- tion needed tests, "there are, unfortunately, opportunities for things to fall through the cracks or to be frustrating for people, and that leads to complaints." Accordingly, more privacy issues may arise in the regulatory area, she says, as privacy breaches may be more likely with new technologies. Physicians who insist that patients wear masks for in-person visits have also had human rights complaints against them. If there is a medical reason why a patient can't wear a mask, a physician will grant an exemption. Still, when a patient requests something different than a medical reason, "then the refusal to give the [patient] autho- rization to not wear a mask can become an issue," says Prather. Increased mobility — and transparency — are two positive developments in professional regulation in the health sciences. Clarke notes health-care professionals' ability to move interprovincially more quickly, where they're needed. e mobilization of resources to manage the pandemic is happening across provinces and organizations, with medical staff in less busy hospitals deployed to busier ones, she says. at's "a definite COVID response, and it will be interesting to see if that stays with us" post-pandemic, Clarke says. Harte has also noticed a recent trend toward increased transparency in profes- sional regulation. When a doctor is found to have made a major error in judgment or failed to meet a standard of care, the provin- cial regulatory websites publish those "major misses," he says. "ere's always room for more transpar- ency, but the regulations over time have slowly shied, and attitudes toward what the public is entitled to know about their doctor, the person they're entrusting their health and safety to — that has created some improvement." "Time will tell whether [professionals working outside of their scope] leads to more litigation or whether there's a broader acceptance that everyone has done everything they can to respond [using] all available resources." "With the ability of virtual platforms, I can serve clients much more effectively and efficiently outside of Ontario." Cindy Clarke BORDEN LADNER GERVAIS LLP Paul Harte HARTE LAW PROFESSIONAL CORPORATION

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