Lexpert Magazine

54 LEXPERT MAGAZINE | SEPTEMBER 2016 | HEALTH LAW | Barbara Balfour is a freelance business and lifestyle writer based in Ottawa. malpractice lawsuit, the doctor, nurses or hospital deny that a mistake was made." e medical registry doesn't require re- porting of certain adverse events, such as hospital-acquired infections — a common occurrence causing serious injury or death in many hospitals across Canada and in Nova Scotia in particular, says McKiggan — and it doesn't require reporting of a sur- geon's complication rates aer surgery. Neither does the registry provide any information about what steps were taken to address the adverse event or any errors that may have caused the problem. "ere is a clear lack of national standards for re- porting and resolving medical errors," says McKiggan. "If we are all going to work together to try to reduce medical errors and improve patient safety, then open and transparent disclosure of medical errors is the first step." From a litigation perspective, whether representing the patient or the health-care provider, one of the most challenging areas in health-care law is the issue of consent, says Rose Carter, a partner at Bennett Jones LLP in Edmonton and an adjunct profes- sor of the Faculty of Medicine and Dentist- ry at the University of Alberta: "Consent continues to be a major concern for all phy- sicians. It has to do with the understanding between the patient and the nurse, dentist, physician, physiotherapist, etc., as to the ex- act problem the patient is facing and what their options are to ameliorate the problem. "We all know the dangers of driving your vehicle between Edmonton and Cal- gary — people might get into car accidents where they're killed or maimed, but we never believe it will happen to us. If we thought we were at real risk of being hurt, we'd never get into the car. "e same goes for health care. We are by nature very optimistic. When we hear about a one-per-cent or two-per-cent chance of an adverse event, we don't see ourselves falling into that category." biggest issues in Canada right now is the lack of transparency surrounding their disclosure, says John McKiggan, who rep- resents victims of medical malpractice and patients who have been injured or killed by negligent health-care practitioners. "In the past, the traditional reaction by health-care professionals to medical errors was to circle the wagons and to provide the patient or their family with as little infor- mation as possible, presumably because of a fear of possible litigation," says McKiggan, a partner at Halifax-based McKiggan He- bert Lawyers. Such fears are generally unfounded, he says. What drives most of the patients he sees to his office, rather, is frustration from perceived stonewalling when they have questions about what happened to them or their loved one. "Some US studies showed that when hospitals instituted a policy of full disclosure of medical errors accompa- nied by an apology, litigation dropped sig- nificantly," says McKiggan. e province of Nova Scotia recently implemented the "Serious Reportable Event Interim Reporting Policy," which mandates reporting and disclosure for all serious medical errors in provincially run facilities. But numerous issues remain. ere are no sanctions for failing to re- port. Health-care staff associated with the registry are not trained to identify adverse events or how to report them. If errors aren't reported to the hospital, this infor- mation can't be passed on to the registry. Patients can't report medical errors to the registry on their own. "One of the biggest flaws is the fact that, if a hospital/doctor denies that they made a mistake, then they are not required to report the incident to the registry," says McKiggan. "In just about every medical Within the context of health care, a pro- vider informs their patient they're going to perform a procedure on them, but there might be risks associated with the care that is given. When that risk results in a nega- tive outcome, the practitioner may not re- call the discussion that occurred. "at's why record-keeping is very important," says Carter. "Documentation is huge, and so is having discussions with patients and being sure they're doing the best they can." PRIVATE CARE PUSH Under the impression their health-care sys- tem is the best in the world, Canadians are unlikely to budge any time soon on priva- tized health care, says Golding. "Canadians wear the Health Act on their sleeve. But our health outcomes fall within the middle to low range of Organisation for Economic Co-operation and Development member countries, even though we have the second- highest per capita costs." ese outcomes could get worse as baby boomers place increasing pressure on the health-care system, which could be the catalyst needed for significant change. A growing focus on integration, efficiency and cutting costs within a system that is struggling to keep up will create a space for private investors and businesses to step in to fill the void. A much greater emphasis on collabora- tion and transparency, along with better policies to manage risk, are needed to allow for more efficient problem-solving. "e re- ality is that, with such a high portion of our tax dollars going to health care, we cannot afford to continue the way we have been going," says Golding. "Having competition and private health care will only make us more efficient. "Once Canadians see we don't have the world's best health-care system, they will start demanding change." LYNNE GOLDING > FASKEN MARTINEAU DUMOULIN LLP "Canadians wear the Health Act on their sleeve. But our health outcomes fall within the middle to low range of Organisation for Economic Co-operation and Development member countries, even though we have the second-highest per capita costs."

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