MEDICO-LEGAL


Quick Q & A

NOTE: If you are a General Surgeon faced with a complaint, the OAGS strongly advises its members to contact the CMPA and request to speak with a "Medical Officer" as soon as possible to seek advisory before responding to the matter. The Medical Officer will arrange for appropriate legal counsel to assist you, if the situation requires it. Contact CMPA

Below are a few common questions and answers fielded by the CMPA website; CMPA Good Practices:

I am the subject of a College complaint. What do I do now?
  1. Contact the CMPA and speak to a Medical Officer for advice and assistance.
  2. Determine the specifics of the complaint.
  3. Determin what the College is asking you to do and if you have been given specific deadlines to meet.
  4. Never alter a patient's medical record after a complaint.
  5. Respond in writing to the College in a professional and respectful manner, and objectively address the issues. Be succinct and direct, avoiding inflammatory language or accusations.
I am being sued. What do I do now?
  1. Contact the CMPA without delay and speak to a medical officer for advice. The medical officer will arrange for legal counsel to assist you.
  2. Work with your CMPA-assigned legal counsel to prepare a statement of defence which will need to be submitted to the court within a specified period.
  3. Never alter a patient's medical record after a legal action is initiated.
  4. Keep the matter in perspective and don't worry excessively — the CMPA is here to help.
  5. Seek support to cope with the stress of a legal action.
I am the subject of a hospital complaint or an investigation. What now?
  1. Determine the specifics of the complaint. Your hospital should formally notify you of the complaint; it is not entitled to resolve a complaint that involves you without your knowledge or approval.
  2. Contact the CMPA and speak to a medical officer for advice and assistance.
  3. Never alter a patient's medical record after a legal action is initiated.
  4. If applicable, participate in the discussion with the patient (or family) to give the complainants a factual understanding of what happened, an apology when appropriate, and what improvements are being made at the hospital.
  5. If the hospital conducts a quality improvement (QI) review, participate and provide your opinions by focusing on the known facts of the case. Avoid blaming others.
  6. If the hospital conducts an accountability review, you are generally obligated to take part in a review of your professional work when requested. You may want to contact the CMPA for continued support and to help ensure your interests are protected.
My patient has threatened to launch a legal action. What now?
  1. A patient may verbally communicate the intention to initiate legal action as a result of being dissatisfied with the care you provided. Try to address the situation, when appropriate, by demonstrating compassion and respect to the patient and family, and by fully understanding the motivation for the verbal threat.
  2. The threat may also be communicated to you in writing, either through a formal letter from the patient or the patient's legal counsel. You should treat written correspondence of a threat seriously. Follow-up action is always required.
  3. Regardless of whether the threat is verbal or in writing, contact the CMPA as soon as possible and speak to a medical officer for advice and assistance.
  4. Ensure the medical record is complete and up-to-date. Never alter a patient's medical record after receiving a verbal threat or a written letter indicating that legal action may be launched.
My patient has suffered an adverse event. What now?
  1. Take clinical care of your patient and reassure the patient his or her needs are being met.
  2. Communicate to restore trust. As soon as reasonable to do so, disclose the adverse event to the patient and family. Focus on the known facts related to the event and the provision of further clinical care.
  3. Provide emotional support to the patient and family. Express your sympathy and regret for what has happened. Continue to demonstrate compassion.
  4. Document your care and subsequent discussions in the medical record. Do not add to or change existing entries after learning of an adverse outcome.
  5. Report the event as required by your hospital, institution, and jurisdiction.
  6. Following an analysis of the event, convey newly uncovered facts to the patient and include what steps are being taken to prevent similar harm to others.
  7. Prior to expressing an apology acknowledging responsibility, you may wish to contact the CMPA.
A third party (i.e. lawyer/police) wants my patient's medical information. What now?
  1. Do not disclose patient information without the patient's express consent, unless required by law.
     
  2. Consider whether you are permitted or obligated to disclose patient information without the patient's express consent (e.g. you received a court order, or search warrant, or when there is a mandatory duty or legal obligation to report).
     
  3. If appropriate to disclose, release only the requested information. Consult with the CMPA or your legal counsel before releasing original copies of the medical record or other documents.
     
  4. Recognizing that this is complex and often specific to each situation, you may wish to contact the CMPA.
I have a request to treat a non-resident of Canada. What do I do?
  1. If it is an urgent clinical matter, provide appropriate care.
  2. If you undertake to provide care for a non-resident, make reasonable efforts for the patient to sign a Governing Law and Jurisdiction Agreement  before providing treatment.
  3. Read the article "Treating non-residents of Canada" to help determine whether the CMPA would assist you in the event of medico-legal difficulties.
Can I be held liable for harm caused by a trainee's negligence?
Background
One of my residents calls frequently and seems reluctant to follow the treatment I have outlined for a patient. I'm concerned I may be sued if something goes wrong and the patient is harmed.

Answer
Your role as the trainee's supervisor includes assisting the resident to develop a process of making sound, independent decisions, in keeping with greater autonomy provided with increased levels of training. Nevertheless, you both have a primary responsibility to the patient. In situations where the resident is reluctant to follow your approach to treatment, it would be worthwhile asking the resident why they disagree and to discuss your decision and explore treatment alternatives.

You could be held liable for any harm caused by a trainee's negligence if you inappropriately delegate a task or do not properly supervise the trainee. Therefore, it is important to consider if the resident has the required skill, knowledge and experience to perform the task and what level of supervision they require. In the event of litigation, you would be held to a standard of care that could be reasonably expected of a normal prudent physician in similar circumstances, and the resident will be held to a standard appropriate to their level of training.

If the resident takes actions without first discussing them with you, or contrary to the treatment program you have recommended, then it will be important for you to document, in a neutral manner, the steps you have taken to monitor and correct the situation. In some cases you may want to seek advice from the program director.
How much judgment can a resident use when faced with conflicting instructions?
Background
I am a PGY4. The attending physician has told me to discharge one of our patients. The nursing director, however, has told me he believes the patient is not yet ready for discharge. He wants me to contact the attending physician. I know the physician will be upset and tell me to use my judgment.

Answer
In situations like this it is not uncommon to feel caught in the middle. As a PGY4, you may have the knowledge to evaluate the basis for the nurse's concerns, and you can assess the patient and evaluate the validity of those concerns. Then you can decide whether the discharge is or is not appropriate, and considering the information given by the nurse, whether the follow-up and discharge instructions need to be modified. However, when uncertain, you should consult with the attending physician.

Always act in the interests of safe care for your patient, and follow the policies of your facility and program. You can then decide whether to carry on with the discharge, cancel it, or consult further with the attending physician. It is important that you document the basis for any decision.

When there are several physicians involved, who should disclose an adverse event?
Background
An X-ray report on one of my patients shows an unexpected finding. I call the patient in and tell him about it, and re-examine him. I find nothing abnormal and contact the radiologist. The radiologist tells me there is no abnormality, but a junior resident had read the X-ray and the radiologist had not reviewed it before the report was sent out. My patient suffers some anxiety as a result of my phone call. I consider this an adverse event. Who should be disclosing it to the patient: me, the radiologist, or the radiology resident?

Answer
In situations such as this, the family physician will often initiate the disclosure discussion on the basis of an established relationship with the patient. If there are unanswered questions, the radiologist may need to be involved in subsequent meetings. Trainees are encouraged to attend disclosure discussions, but typically would not lead them.

A disclosure discussion should occur as soon as possible after the adverse event is recognized. The physician who is responsible for contacting the patient should be determined promptly.

(Handovers) Who is supposed to follow up on tests ordered in the ER?
Answer
Physicians are responsible to follow up on tests they have ordered. The ordering physician should be satisfied there is a procedure in place at the hospital that ensures the test result will be seen and acted on.

Before leaving your shift you might want to inform your replacement of pending tests and the reasons for them. If the results (such as outpatient imaging) are not expected for some time, consider making arrangements for a physician to see and act on the results and instruct the patient on how to follow up.

CMPA Good Practices Guide: Handovers