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Archives for January 2019

Members of the Pacific Medical Law Team Attend Renowned Obstetrical Conference

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Four members of the Pacific Medical Law Team attended the 35th Annual Obstetrics, Gynecology, Perinatal Medicine, Neonatology and the Law Conference organized by Dr. Aubrey Milunsky and Dr. Jeff Milunsky in January of this year.

The conference was attended by a diverse group of legal and health care specialists. The event featured exceptional presentations by renowned experts in their fields. Presentation topics included:

  • How can maternal injury during childbirth be prevented?
  • When is a home birth safe?
  • Does cooling newborns following a traumatic birth work?
  • What causes stroke in a newborn?
  • What can genetics testing tell us about a child’s disability?
  • What can Magnetic Resonance Imaging (MRI) tell us about when and how a brain injury occurred in a newborn?
  • How long should the second stage (the “pushing” stage) of labour go? and
  • How can medical professionals help promote a culture of patient safety?

The goals of the conference are to teach medical professionals to better understand how to avoid medical negligence and to teach legal professionals about the complex issues encountered in the practice of medicine.

At Pacific Medical Law we are committed to maintaining our knowledge in a range of medical specialties, including obstetrics, gynecology, and neonatology. We believe that understanding the most up-to-date medicine can help us obtain the best results for our clients in medical malpractice lawsuits.

 

 

 

 

What are a Physician’s Legal and Ethical Obligations to their Injured Patient?

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If you develop a serious illness or are injured in an accident, you will depend on your family physician not only to provide medical care, but also to assist you in obtaining employment accommodations, insurance benefits or third-party compensation.  Your physician has legal and ethical duties to you in these circumstances.  Susanne Raab has written the following article aimed at lawyers that describes a physician’s duties in this area:

When a client has been injured or become ill, the lawyer will need to develop a clear understanding of the nature and extent of the client’s injury or illness and its prognosis, as well as the cause(s) of the injury or illness. The starting point is to obtain a complete copy of your client’s relevant medical records. While this may come as a surprise to many who routinely review and attempt to decipher physicians’ handwriting and other cryptic notations contained in medical records, physicians have a legal and ethical obligation to create a legible and comprehensive record of the medical care they provide to their patients.1

While the physician who created the record owns the record, the law is clear that a patient is entitled, upon request, to examine and receive a copy of the complete medical records compiled by the physician in the course of providing medical advice and treatment to the patient. This includes electronic records and copies of records prepared by other physicians that the physician may have received. There are, however, limited exceptions to this  right, such as where there are compelling reasons to believe that the disclosure of these records (or certain portions of them) is likely to cause a substantial adverse effect on the physical, mental, or emotional health of the  patient or harm to a third party.2

In terms of what records are available, physicians are required to retain records for 16 years from either the date of the last entry, or from the age of majority (19), whichever is the latest.3  If the physician provided care in a hospital setting, the hospital must produce the medical records. Hospitals must retain primary records for 10 years from the last entry.4

Medical records are often relied upon in court as evidence of a claimant’s injury. These records are an exception to the hearsay rule and the facts contained in the medical records can be admitted as prima facie evidence for the truth of those facts.5 A diagnosis, however, may fall into the category of opinion evidence which cannot be admitted for its truth simply by entering the medical records as exhibits at trial, nor can it be admitted simply by calling the treating  physician as a witness at trial without notice of the opinion evidence provided in accordance with Rule 11-6 of the Supreme Court Civil Rules. Ultimately, whether notice is required or not depends upon the purpose of entering the diagnosis into evidence. If it is entered for the truth of the diagnosis, notice is required. If the purpose is simply to confirm that the diagnosis was made, notice is not required.

MEDICAL CERTIFICATES AND OTHER THIRD PARTY REPORTS

A person injured in an accident or suffering from a medical illness may require a medical certificate or report from his or her treating physician in order to obtain workplace accommodation, insurance benefits or compensation from a tortfeasor related to his or her injury or illness. Third parties, such as the patient’s employer, insurance company or defence counsel may also seek information directly from the treating physician.

The treating physician is ethically and legally obliged to provide reports on patients they have attended by providing relevant, objective medical information.6 This obligation applies even if the physician has not seen the patient recently and cannot provide a current report.7 The information should be provided in a reasonable timeframe, usually 30 business days.8

If the request is from a third party, the physician must first obtain an appropriate consent from the patient prior to providing any information. It is important to delineate the scope of what is relevant to ensure the disclosure of information does not exceed the consent provided. The patient should also be advised in advance that the physician cannot conceal or withhold relevant information which is not favourable to the patient.

DISCLOSING INFORMATION TO THIRD PARTIES

Some additional comments are warranted in relation to requests made by third parties. The cornerstone of the physician-patient relationship is trust and confidentiality. Subject to some limited statutory exceptions, a physician must obtain the patient’s express consent prior to providing any information to third parties, as noted above.

In the context of personal injury litigation, however, there is legal authority that once litigation has been commenced, there is an implied waiver of physician-patient confidentiality in relation to medical information which is relevant to the lawsuit. This arises in the context of defence counsel seeking to interview treating physicians.

It is important for physicians to understand that while there may be an implied waiver of privilege where a personal injury lawsuit has been commenced, this does not obligate them to discuss their patient’s medical information with defence counsel, in the absence of their patient’s consent. The College of Physicians and Surgeons of BC’s position is that notwithstanding this implied waiver of confidentiality, physicians have an ethical obligation to act in the best interests of their patients, and should review the third party request with their patient, and give due consideration to the patient’s wishes. The reality is, however, that if the patient refuses to provide consent, and the physician accordingly refuses to answer any questions, defence counsel may obtain an order from the court to interview the physician under oath, pursuant to Rule 7-5 of the Supreme Court Civil Rules. Good practice is for the patient’s lawyer in the personal injury matter to facilitate defence counsel reasonable request to interview the physician, and to be present during the interview for the purpose of ensuring defence counsel remains within the bounds of the implied waiver of confidentiality, and that no irrelevant or privileged information is disclosed.

REFERRALS AND SECOND OPINIONS

An injured client will often require one or more referral(s) to specialists in order to diagnose and treat his or her injury or illness. The process of obtaining appropriate referrals to specialists can be a time-consuming and frustrating process for a patient. It can result in delay and miscommunications between the primary care physician and the specialist. The College of Physicians and Surgeons of BC has addressed these concerns with a revised guideline for how referrals should be managed, emphasizing patient well-being as the single most important factor in ensuring an effective referral-consultation process. The relevant guideline requires clear and timely communication between the family physician and the referral physician, as well as between the physician and the patient. While there is no specific requirement in the College guideline for a consultation to occur in a timely manner, if information is communicated to the consulting physician which would indicate that a timely consult is required to maintain the health of the patient, then an obligation may arise to prioritize the referral. Once the consultation has taken place, the consulting physician should provide the referring physician with a timely (ie. 2 weeks) written report, unless the results are urgent or critical in which case more immediate verbal notification is required.

In addition to timely communication, patients should also be provided with appropriate information to assist them in making informed decisions about their health care, including whether to seek a second opinion or proceed with recommended consultation or treatments. In circumstances where a patient requests a second opinion, the College recommends the physician should “consider and respect their patient’s reasonable requests for a second opinion” [emphasis added].

TERMINATING THE PHYSICIAN-PATIENT RELATIONSHIP

When a patient has been injured or becomes seriously ill, the patient is more vulnerable and dependent upon his or her treating physician. He or she may require multiple referrals, comprehensive reassessments and extended appointments for counselling, on top of the requirements associated with supporting the patient with the medical legal process.

There is a recognition that the physician-patient relationship is a fiduciary one in which the physician is in a position of trust. This means that the physician must act with good faith and loyalty toward the patient and never place his or her own interests ahead of the patient’s.

A physician-patient relationship can be terminated by the physician for legitimate reasons. If there is an unambiguous indication that the patient blames the treating physician for failing to properly diagnose and/or treat the injury or illness and is contemplating legal action against this physician, the physician may reasonably construe this as undermining the relationship of trust and creating a conflict of interest, and may terminate the relationship.

Further, if the patient displays threatening or abusive behaviour to the physician or staff, making reasonable allowances for the role of the patient’s illness (addiction or mental illness) or injury (brain injury) in his or her behaviour, this may be an appropriate basis upon which a physician may terminate the physician-patient relationship.

It is important, however, to appreciate that the increased complexity of a patient’s care or the underlying legal proceedings are not legitimate reasons to terminate the relationship. Terminating the physician-patient relationship in these circumstances would be contrary to the fiduciary nature of the relationship. If a physician is actively reducing his or her patient load due to personal reasons, the College and the Canadian Medical Association Code of Ethics caution that the physician cannot simply dismiss their more complicated patients, or otherwise discriminate on the basis of a patient’s condition. Finally, terminating the physician-patient relationship must not be based on any reason that might be discriminatory under the BC Human Rights Code, including race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age.

In conclusion, understanding the nature of a physician’s legal and ethical duties to their patients, as well as the limits of those duties, will assist counsel in ensuring their injured client obtains the support needed from their treating physician(s) in pursuing their underlying legal remedies.

*image courtesy of University of New England – www.une.edu

This piece was originally published in the Verdict. You can read the PDF  on our Publications page.

1 CPSBC, Practice Standard, Medical records, v. 2.0, revised September 1, 2017.
2 McInerney v. MacDonald, [1992] 2 SCR 138, 1992 CanLII 57 (SCC).
3 CPSBC, Practice Standard, Medial Records, v. 2.0 revised September 1, 2017.
4 Hospital Act, Hospital Act Regulation, BC Reg 121/97 s. 14(1).
5 Ares v. Venner (1970), 12 C.R.N.S. 349 (SCC); Evidence Act, RSC 1985, c. C-5
s. 30(1).
6 CPSBC, Practice Standard, Medical Certificates and Other Third-Party Reports,
v. 1.0, revised November 2013.
7 supra, note vi
8 supra, note vi
9 Swirski v. Hachey, 1995 Canlii 617 (BC SC).
10 CPSBC, Professional Guideline, Referral-Consultation Process, v. 3.1 revised
November 5, 2018.
11 CPSBC, Professional Guideline, Referral-Consultation Process, v. 3.1 revised
November 5, 2018, Canadian Medical Association Code of Ethics, updated 2004,
s. 26.
12 CPSBC, Practice Standard, Ending the Physician-Patient Relationship, v. 4.0,
revised June 4, 2018; The Canadian Medical Association Code of Ethics, s. 17.
13 supra

Can Apgar scores predict baby’s future health?

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Last month we posted a blog describing Apgar scores and how they are used.  Apgar scores are a quick assessment of a baby done at one, five and often 10 minutes after birth.  It is a system that gives a score from 0 to 10 and assesses the baby’s heart rate, muscle tone, and other signs to see if extra medical care or emergency care is needed. The Apgar scores provide a standardized method for reporting the status of a baby immediately after birth, and directs the medical team to promptly intervene to establish breathing if the baby is in need of resuscitation.  Many parents will know what their baby’s Apgar scores were at birth.

Importance of Apgar Scores

Although it is generally thought that Apgar scores are not useful for predicting baby’s long-term health, researchers are examining data to determine if there might be useful information in the Apgar scores.  Low Apgar scores of between 0 and 6 points at one or five minutes after birth have been linked to a higher risk of cerebral palsy (CP) and epilepsy, and very low scores between 0 and 3 points at 10 minutes indicate a significantly higher risk of CP.

A recent study tried to quantify the predictive value of Apgar scores by looking at the relationship between Apgar scores and the risk of a later diagnosis of cerebral palsy or epilepsy.  In the largest known study of its kind, researchers analyzed Swedish data from 1.2 million babies born at full term from 1999 to 2012. A total of 1,221 babies (0.1 per cent) developed CP and the risk increased with decreasing Apgar scores at five minutes. Compared with infants with an Apgar score of 10 at five minutes, babies with a score of 9 had almost twice the risk of developing CP, while a score of 0 at five minutes was associated with a 280-fold risk.  An even higher risk was noted for babies with those same Apgar scores at 10 minutes.  A total of 3,975 babies (0.3 per cent) were diagnosed with epilepsy, and the risks of epilepsy increased with decreasing scores at five and 10 minutes, although not as markedly as for CP.

The lead researcher points out that it’s really important to remember that although this study identifies that there is a link between low Apgar scores, CP and epilepsy, most babies with very low Apgar scores do not develop CP or epilepsy.

Here is a link to an infographic which goes into more detail: https://www.bmj.com/content/bmj/suppl/2018/02/07/bmj.k207.DC2/perm041353.ww2.pdf

At Pacific Medical Law, when we investigate a birth injury case involving a child with CP we focus on determining if the CP was preventable. Knowing our client’s Apgar scores can be an important first step in our review process, but a low Apgar score says nothing about the cause of the child’s CP.  We work with highly respected experts to determine whether or not the baby’s low Apgar scores, and ultimately their cerebral palsy, was preventable.

* Image courtesy of https://indyschild.com/the-apgar-score/

Do you have a right to choose caesarean section?

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One of the basic principles underlying all medical care is a patient’s right to make informed decisions about their medical treatment. Health care providers have an obligation to discuss with you the risks and benefits of any treatment being proposed. They must also let you know about viable alternatives to that treatment, and the risks and benefits of those alternatives. Once you understand the treatment options, it is your right to make a choice about what treatment option is right for you. Consent to medical treatment must be ‘informed consent.’ That means that this full discussion about risks, benefits and alternatives must be completed before you give consent.

Informed Consent for Childbirth

One of the areas of medicine where this process of informed consent has historically been lacking is in obstetrics. In the past, women have often been told that they are not allowed to choose caesarean section unless it was, in the doctor’s opinion, medically necessary. This practice, however, is slowly changing.  In July 2018, the Society of Gynecologists and Obstetricians of Canada (SOGC), the professional body that sets guidelines for practicing obstetricians, published a Committee Opinion making it clear that informed consent must be obtained for childbirth as well.

The first step required of the medical team (doctors, nurses, midwives) is to have a clear understanding of the risks and benefits of both planned caesarean section (for non-medical reasons) and of attempted vaginal delivery. The discussion of risks should include both common risks (like pain after delivery) and rarer, long term consequences (brain damage, death, complications in future pregnancies, etc.).

There are currently no studies comparing the safety to mother and baby of these two methods of delivery. Studies have been done on the safety of caesarean section versus vaginal delivery but this data includes the risks associated with all caesarean sections, including those done on an emergency basis for medical crises.   Some of the information from existing studies can aid in the risk/benefit discussion, but the inclusion of emergency caesarean sections in the studies likely results in higher numbers of poor outcomes from caesarean sections.  What is needed is studies that only include caesarean sections that were done at the mother’s choice, without medical reasons to choose caesarean section over vaginal delivery.

A Risk/Benefit Discussion

The SOGC is clear that the discussion about elective caesarean section should be focused on the individual patient. Medical professionals should not assume that all people place the same value on the mode of delivery. They have an obligation to provide up-to-date, evidence-based information and the risk/benefit discussion needs to take into account your values, beliefs and individual needs. The medical professional should explore your reasons for the request, fears and concerns, and should be culturally appropriate.

Medical professionals should offer their medical recommendation for the appropriate mode of delivery for each individual. Your autonomy, however, must be respected. The mode of delivery must be a mutual decision and must be made without bias or coercion. Physicians also have a right to autonomy in deciding whether to perform a caesarean section, but this does not erase your rights. If you opt for caesarean section, the physician must either perform a caesarean section, refer you for a second opinion or transfer your care to another physician. They may not simply refuse to perform a caesarean section and force you to have a vaginal delivery.

Hospitals using virtual reality to distract kids from pain

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Doctors in several Lower Mainland hospitals are using virtual reality and robots to make emergency room visits for children as pain-free as possible.

ER physician Dr. Amir Behboudi started using virtual reality (VR) goggles with children during potentially scary experiences like having an IV inserted or receiving stitches, and found that the results were positive. Last year, he stitched a young girl’s chin while she watched a roller-coaster simulation on a VR headset. Prior to putting on the headset, the girl was crying. But once she was engaged in the simulation, she was smiling and laughing.

Virtual Reality Distracts the Brain

The VR technology immerses kids in an experience, such as a virtual roller-coaster ride, so that they are distracted while the doctor is stitching up a cut, for example. The idea is that the brain is distracted when there are multiple sensory inputs coming in at the same time, and VR can provide that environment.

The goggles also turn the children’s attention from the pain they think they will experience, as sometimes the anticipation of the pain can cause more anxiety than the procedure itself, said Dr. Behboudi.

The technology used is inexpensive and mass market: a $40 VR headset is paired with a smartphone loaded with VR experience apps. “It’s a no-brainer to give this to a child. It’s cheap, it doesn’t take much time, and their whole experience completely changes,” said Dr. Behboudi, a father of two himself. He also reports that all emergency rooms operated by Fraser Health Authority have at least one VR headset.

More VR Studies Underway

Three studies are currently underway at BC Children’s Hospital examining the impact of using virtual reality technology during laceration repair, lab tests and IV insertion, and lesion removal. So far, they’ve shown that the technology significantly reduces anxiety and makes the procedures more fun.

Making hospitals more kid-friendly also means making the waiting room more fun for youngsters so that their positive experience starts as soon as they enter the hospital doors. Peace Arch Hospital recently purchased a robot named Pepper, with the goal for entertaining families in the hospital’s waiting room. Kids can play games and take photos with the robot, and the robot also can provide an opportunity to transmit educational messages to the children. Dr. Behboudi reports that there are plans to transport Pepper to other hospitals in the Lower Mainland.

“Our dream is for kids not to be afraid when they visit the ER,” said Dr. Behboudi. “There are simple things we can do to completely change the way they react to pain and to the hospital.”

 

 

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