5 3 30 pm Anne Spafford LLB

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					                        Medical Directors & the Law:
                         What You Really Need to Know
                                        by Anne Spafford




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         Introduction
         What we do:
               – Civil Actions
               – College Proceedings
               – Coroner’s Inquests
               – Consent & Capacity Board Hearings
               – Hospital Privileges


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         Standard of Care
           “Physicians have a duty to conduct their
            practice in accordance with the conduct of a
            prudent and diligent doctor in the same
            circumstances. In the case of a specialist, . . .
            the doctor’s behaviour must be assessed in
            light of the conduct of other ordinary
            specialists, who possess a reasonable level of
            knowledge, competence and skill . . . ”
                                      Ter Neuzen v. Korn 1995
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         Responsibility of Medical Directors
         2 Sources:

              1. Contractual

              2. Legislation



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         Legislation
         Depends on governing Act
           Nursing Homes Act
            s. 50
           “A licensee of a nursing home shall appoint a
           physician as the medical director for the home
           and shall obtain a written statement signed by
           the medical director stating that the medical
           director will advise . . . on matters relating to
           medical care in the home, including the quality
           of medical care provided in the home.”
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         Homes for the Aged and Rest Homes Act

         26(2)

              “All medical and paramedical services,
              programs, procedures and medications
              provided or used in a home are subject to
              the approval of the medical director.”




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         Long-Term Care Homes Act
         (not yet in force)

                72(3) “The Medical Director,
                        (a) shall advise the licensee on matters
                        relating to medical care in the long-term
                        care home; and
                        (b) shall perform any other duties provided
                        for in the regulations.”

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         Contractual
         • As defined in Contract with the Facility
         • Wide array of possibilities:
            Ex:
                        • “to provide advice to be accountable for the areas
                          of administrative medical services and policies”
                        • “to direct and organize the Facility’s medical
                          services . . . including but not limited to the areas
                          of medical service provision, administration and
                          education”



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         • Carefully review contract clauses setting out
           expectations

         • Get legal advice

         • Relationship with Facility governed by terms of
           contract


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         Status as Medical Director
         • Independent contractor (see contract terms)

         • Not an employee

         • Liable for own negligence

         • No vicarious liability


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         Legal Liability
         • Attending physician vs. medical director

         • Liability for failing to fulfil administrative
           responsibilities

         • Civil proceedings



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         College Proceedings
         Professional Misconduct and Incompetence
         Ex:
            – failure to maintain the standard of practise of the
              profession
            – committed an act or omission that is regarded as
              disgraceful, dishonourable or unprofessional
            – conduct unbecoming a physician



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         Dr. G
         • Medical Director of senior retirement residence
         • Resident climbed out of window and fell to his
           death
         • Dr. G had body moved back to room and
           instructed staff to say death was by heart
           attack
         • Criminal charges, pled guilty


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         . . . Dr. G (cont’d)
         • Pled guilty to professional misconduct

         • Suspension of 12 months

         • No evidence of incompetence as physician




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         Dr. W
         • Medical Director of private ECG clinic

         • Employee was Hepatitis B carrier

         • Transmitted Hepatitis B to patients because of
           lack of precautions




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         . . . Dr. W (con’t)

         • Lack of supervision of employees
         • Lack of protection of employees and patients
           from infectious diseases
         • Lack of training of employees in contracting
           infections
         • Lack of monitoring for sterile needles


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         . . . Dr. W (con’t)
             CPSO decision:
             • revoke licence
             • showed remarkable lack of clerical judgment
             • role of clinician and Medical Director could
               not be isolated
             • not just a matter of administrative
               incompetence


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         . . . Dr. W (con’t)
         Divisional Court:
         • no evidence of incompetence in practice as
           neurologist
         • liability related to failure to supervise and
           monitor
         • lifelong ban from acting as Medical Director
         • suspension 2 years
         • remedial courses

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         Dr. K
         • Medical Director of laser vision centre

         • College prohibits advance payments

         • Medical Director’s responsibility to periodically
           check whether College’s requirements met




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         Dr. T
         • Medical Director of nursing home
         • Attending physician for Mrs. B
         • Mrs. B not competent
         • Dr. T proposed treatment with Norvasc for
           hypertension
         • SDMs refused



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         . . . Dr. T (con’t)
         • SDMs purported to fire Dr. T and replace him
           with Dr. H
         • Dr. H never signed contract with Home
         • Dr. T has continuing legal obligation as Medical
           Director because patient has no other
           physician




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                        Adverse Events




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         Adverse Event

              An event which results in unintended harm to
              the patient, and is related to the care and/or
              services provided to the patient rather than to
              the patient’s underlying medical condition.

                               Canadian Patient Safety Institute



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         Harm
         An outcome that negatively affects the patient’s
         health and/or quality of life
         • Consider whether the harm does or can be
           reasonably expected to negatively affect the
           patient’s health and/or quality of life
         • Not all “accidents” or “errors” result in harm



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         Close Call (near miss)

         • An event with the potential for harm that did
           not result in harm because it did not reach the
           patient due to timely intervention or good
           fortune




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        Disclosure to patient →
               • To be done by attending physician
        Reporting elsewhere
               • In some provinces, obligation to report critical incident to
                  government
        Internal policy on reporting adverse event
        • Incident Report
              – Provide only facts
              – Not to be placed in chart
              – Will be disclosed if lawsuit



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         Accountability Review
         • Focused on individual health care provider(s)
         • Investigation
         • Patient can be involved
         • No privilege attaching to review and therefore,
           is subject to disclosure in lawsuit
         • Treated as confidential

         1427116




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         Quality Improvement Reviews
         • Focus on system issues
         • Conducted by Committee in compliance with
           legislation and/or policies
         • Documents are privileged
         • The fact that review conducted can be
           disclosed
         • Generally not shared with patient


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         Amendments to

            Regulated Health Professions Act




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         Mandatory Reporting
         For facilities:
         • must report member to his/her College if belief
           he/she is:
               – incompetent
               – incapacitated
         • 30 days to report, less if patients at risk




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         For Members
         • Self-report if:
               – found guilty of an offence
               – professional negligence or malpractice findings have
                 been made
         • Report other members if:
               – reasonable grounds to believe patient sexually abused
               – No duty to report for incompetence or incapacity




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                 Long-Term Care Homes Act, 2007




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           • Replaces:
                 – Nursing Homes Act
                 – Homes for the Aged and Rest Homes Act
                 – Charitable Institutions Act

           • Not in force because Regulations not
             enacted
           • Drafts circulated


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         Changes Proposed:
         • Admission of residents
               – Sets requirements
         • Plans of Care
               – Must be developed within 24 hours of admission
         • High Risk Areas
               – Must develop programs, policies & procedures for high
                 risk areas
                          ex: falls, wound care
         • Restraints
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