CESO 2003 FALL CONFERENCE Patient Risk

1. CESO 2003 FALL CONFERENCEPatient Risk Presented by: Tim Buckley Borden Ladner Gervais LLP Tel: 416-367-6169 Email: tbuckley@blgcanada.com 30 October 2003

2. Choose the answer below that best describes the mission of the institution • Deliver patient care to a standard that meets the best practices of the medical community • Position the hospital in a manner calculated to give its strongest defence to liability claims • A strong offence is the best defence

3. The correct answer is: • A strong offence is the best defence

4. Bases of Liability of Hospital to Patient • Tort – Law of Negligence • Contract

5. Bases of Liability of Hospital to Patient contd. • Tort – Under the law of negligence a duty of care is owed to patients to meet the standard of a reasonable hospital considering all of the circumstances

6. Bases of Liability of Hospital to Patient contd. • Contract – “It is reasonable that Mr. Pittman would have expected that he had an agreement with Dr.Goldman for the provision of his skill as a Canadian surgeon and with the Hospital for the provision of its services and the material necessary for the surgery, and for his convalescence.” Pittman Estate v. Bain et al (1994), 19 C.C.L.T. 1 (O.C.J. – Gen. Div.)

7. Hospital liability arising from the supply of equipment • Duty on Hospital to provide reasonable equipment and to maintain equipment • At a minimum, Hospital performance will be measured against an Objective Standard demonstrating the type and quality of equipment that has found its way into common use at similar institutions

8. Hospital liability arising from implants, fluids, drugs, etc. Foundation Principle • The courts in this country have long recognized that manufacturers of products that are ingested, consumed or otherwise placed in the body, and thereby have a great capacity to cause injury to consumers, are subject to a correspondingly high standard of care under the law of negligence. Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634 at 655

9. The Standard of Care • Development of standard in developing circumstances • Relevance of post event changes

10. Post Accident Response • Focus of plaintiff’s investigation • Identification of equipment – make, model number, serial number • Background to Hospital decision to purchase/lease • Age of equipment and maintenance history

11. Post Accident Response • Focus of plaintiff’s investigation contd. • Training given to users of equipment • Complaints made concerning equipment • Results of inspection of equipment • Terms of contract between Hospital suppliers and Hospital

12. Post Accident Response • Need for expert to examine to identify defect before repair • Opportunity for plaintiff and other proposed defendants to inspect before destruction, repair or modification • Evidence for Court

13. Post Accident Response • Key documents and information to be retained by Hospital • Promotional and descriptive material • Contract of sale or lease • Warranties • Purchase order

14. Post Accident Response • Key documents and information to be retained by Hospital • Invoice • Operating manuals, instructions • Maintenance records including work orders • Serial number and other identifying data