5 3 30 pm Anne Spafford LLB

Document Sample
5 3 30 pm Anne Spafford LLB Powered By Docstoc
					                        Medical Directors & the Law:
                         What You Really Need to Know
                                        by Anne Spafford

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

Copyright Lerners LLP
         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
Copyright Lerners LLP
         Responsibility of Medical Directors
         2 Sources:

              1. Contractual

              2. Legislation

Copyright Lerners LLP
         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.”
Copyright Lerners LLP
         Homes for the Aged and Rest Homes Act


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

Copyright Lerners LLP
         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.”

Copyright Lerners LLP
         • As defined in Contract with the Facility
         • Wide array of possibilities:
                        • “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

Copyright Lerners LLP
         • Carefully review contract clauses setting out

         • Get legal advice

         • Relationship with Facility governed by terms of

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

         • Not an employee

         • Liable for own negligence

         • No vicarious liability

Copyright Lerners LLP
         Legal Liability
         • Attending physician vs. medical director

         • Liability for failing to fulfil administrative

         • Civil proceedings

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

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

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

         • Suspension of 12 months

         • No evidence of incompetence as physician

Copyright Lerners LLP
         Dr. W
         • Medical Director of private ECG clinic

         • Employee was Hepatitis B carrier

         • Transmitted Hepatitis B to patients because of
           lack of precautions

Copyright Lerners LLP
         . . . 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
         • Lack of monitoring for sterile needles

Copyright Lerners LLP
         . . . 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

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

Copyright Lerners LLP
         Dr. K
         • Medical Director of laser vision centre

         • College prohibits advance payments

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

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

Copyright Lerners LLP
         . . . 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

Copyright Lerners LLP
                        Adverse Events

Copyright Lerners LLP
         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

Copyright Lerners LLP
         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

Copyright Lerners LLP
         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

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

Copyright Lerners LLP
         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


Copyright Lerners LLP
         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
         • Generally not shared with patient

Copyright Lerners LLP
         Amendments to

            Regulated Health Professions Act

Copyright Lerners LLP
         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

Copyright Lerners LLP
         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

Copyright Lerners LLP
                 Long-Term Care Homes Act, 2007

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

           • Not in force because Regulations not
           • Drafts circulated

Copyright Lerners LLP
         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
Copyright Lerners LLP

Shared By: