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CESO 2003 FALL CONFERENCE Patient Risk. Presented by: Tim Buckley Borden Ladner Gervais LLP Tel: 416-367-6169 Email: tbuckley@blgcanada.com 30 October 2003. Choose the answer below that best describes the mission of the institution

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ceso 2003 fall conference patient risk

CESO 2003 FALL CONFERENCEPatient Risk

Presented by:

Tim Buckley

Borden Ladner Gervais LLP

Tel: 416-367-6169

Email: tbuckley@blgcanada.com

30 October 2003

slide2
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
slide3
The correct answer is:
    • A strong offence is the best defence
bases of liability of hospital to patient
Bases of Liability of Hospital to Patient
  • Tort – Law of Negligence
  • Contract
bases of liability of hospital to patient contd
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
bases of liability of hospital to patient contd1
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.)

hospital liability arising from the supply of equipment
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
hospital liability arising from implants fluids drugs etc
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

the standard of care
The Standard of Care
  • Development of standard in developing circumstances
  • Relevance of post event changes
post accident response
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
post accident response1
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
post accident response2
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
post accident response3
Post Accident Response
  • Key documents and information to be retained by Hospital
    • Promotional and descriptive material
    • Contract of sale or lease
    • Warranties
    • Purchase order
post accident response4
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