Crossroad of patient safety and medical malpractice in Canada

Dr. Santanu Chakraborty is Associate Professor in Radiology in The University of Ottawa and Radiology Quality Officer at The Ottawa Hospital.

Patient safety is taking its rightful place in the forefront of modern-day Canadian healthcare system that is committed to provide healthcare of the highest possible quality and value to its citizens. Medical care is not risk-free. Patients do experience complications, unintended outcomes and harm mostly related to risks inherent in healthcare but also at times due to negligence from the patient’s physicians, care team, hospital or the healthcare system as a whole. In most situations, these unfortunate situations provide opportunities for learning from mistakes and improve our healthcare system. Most if not all major accidents in medicine are preceded by a number of near misses and minor errors. In high risk industries, preemptive corrective actions to these seemingly minor errors are the key to the prevention of catastrophic event down the road. Often the only person to recognize a near miss is the one who is closely involved. The problem for any institution wishing to learn from these incidents is to have these reported by those concerned. Healthcare has a long way to fully embrace the non-punitive event reporting, analysis and learning from errors or near misses that helped dramatic progress in aviation safety (1-3). The basic safety concepts that seek to downplay the role of heroic individuals and instead emphasize the importance of teams; concepts that seek to increase and apply group knowledge of safety and values; and concepts that promote safety by design will certainly leads us to improve safety in healthcare (3).

Traditionally the quality of care and protection of patients from medical harm are dealt in litigation system using civil liability, discipline by professional bodies and in hospital/healthcare organization processes. This traditional approach is based on two deeply rooted assumptions that doctors or healthcare personnel who harm patients deserve punishment and fear of punishment would improve patient safety and quality of care. These assumptions are in stark contradiction to the modern approach of patient safety that encourages system thinking and understands that both people and systems are prone to failure. Due to the traditional medical liability, errors made by competent well-intentioned providers are driven underground by fear of punishment and opportunities from learning from mistakes or near misses are lost.

An effective healthcare system should strike the right balance between encouragement of reporting errors, learning from mistakes and improving the system versus the liability system to hold healthcare providers accountable for their actions in a fair manner and provides compensation for patients who are harmed through negligent care. It is often stated that like in the US, there is a medical malpractice “crisis” in Canada or it is going to happen in the near future. The presumed factors contributing to the crisis in the United States may be grouped into legal process, increasing insurance cost, changing nature of medical practice, public attitudes and expectations as well as the changing relationship between physicians and the patients (4). However, the Canadian situation is significantly different due to nationalized healthcare and also due to presence of CMPA, a single nonprofit protective association for the physicians.

At the Federal level there is no legislation related to patient safety (in contrast to aviation safety) and as such there is significant heterogeneity in patient safety framework and quality of care initiatives among different parts of Canada. Nationally, organizations like Canadian Patient Safety Institute, The Canadian Foundation for Healthcare Improvement, Institute of Safe Medication Practices, although had some role in promoting patient safety, no clear mandated goal is defined. The success of most of these organization depends on voluntary disclosure of safety events by the stakeholders. There remain barriers for sharing patient safety information between provinces.

In healthcare, disclosure of adverse events to the patient is both an ethical and legal requirement (5, 6). The law of tort will find physicians negligent if a proper and timely disclosure of adverse event is not given to the patient as expected of a reasonable physician (7, 8). There are general privacy statutes and some specific statutes like the Personal Health Information Act and Apology Legislation (9) that protects what information can be admissible in court. Apology Legislation is available in 10 of 13 jurisprudences. This makes an apology inadmissible in court as an evidence of fault or for determination of liability.

More recently legislation promoting patient safety frameworks are created in some provincial/territorial level, for example Quality of Care Information Protection Act, 2004 (“QCIPA”) in Ontario. These new legislations are created to protect quality of care information from being used in civil litigation. The Act also has specific penalties for noncompliance related to disclosing quality of care information. In recent cases (10, 11) the court acknowledged and upheld the qualified/statutory privilege of shielding information for activities of quality assurance and patient safety. This is a very important and positive move by the legal system to support patient safety initiatives that requires more comprehensive reporting of medical errors or near misses, systematic analysis and learning from errors and sharing of this information to improve the healthcare delivery system throughout Canada. 

References: 

  1. Canadian Transportation Accident Investigation and Safety Board Act, (1989).
  2. Canadian Aviation Regulations (SOR/96-433) - Transport Canada, (1992).
  3. Lewis GH, Vaithianathan R, Hockey PM, Hirst G, Bagian JP. Counterheroism, common knowledge, and ergonomics: concepts from aviation that could improve patient safety. The Milbank quarterly. 2011;89(1):4-38.
  4. Danzon PM. Medical Malpractice: Theory, Evidence, and Public Policy. Cambridge, Mass: Harvard University Press; 1985.
  5. Hebert PC. Patients must be told of unintended injuries during treatment. Bmj. 1999;318(7200):1762.
  6. Robertson G. Fraudulent concealment and the duty to disclose medical mistakes. Alberta law review. 1987;25(2):215-23.
  7. Stamos v. Davies, Ontario High Court, 21 DLR: 507-10 (1985).
  8. Kiley-Nikkel v. Danais, A.J. no 1836, 16 C.C.L.T. (2d): 290 (Que. S.C.) (1992).
  9. Apology Act, S.O. 2009, c. 3 (2009).
  10. Gordon Estate v Regina (Regional Health), SKQB 147 (2015).
  11. Pryznyk v Gilliland, SKQB 285 (2015).

 

3 thoughts on “Crossroad of patient safety and medical malpractice in Canada

  1. Marlise dos Santos

    Excellent article Santanu. Encouraging words that hopefully will encourage our hospital leaders to implement formal disclosure of harm policies and non-punitive assessment of issues raised using our internal QCIPA-protected patient safety tools.
    The ignorance on this topic shown by some of our key practice leaders remains a public health concern. It is about time for our healthcare leaders to acknowledge that our patients and inter-disciplinary teams need and deserve transparency and accountability. Congratulations for your impressive work.
    Marlise

    Reply
  2. Joanne Todesco

    Thank you for this Santanu. Tackling the same issue from a different angle, I thought you might be interested in a position I outlined in the Canadian Arbitration and Mediation Journal. It proposes a different model for resolving medical malpractice disputes that, compared with litigation, arguably better addresses the related patient safety issues, in addition to having many other benefits:
    http://www.adric.ca/pdf/ADRIC_JOURNAL_2016_Vol25_No2.pdf

    Reply

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