Law 3101A/B Chapter Notes -Viral Load, Cerebral Palsy, Punitive Damages

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Published on 18 Apr 2013
School
Western University
Department
Law
Course
Law 3101A/B
The Changing Environment 1/8/2013 4:03:00 PM
Canada has become a more legalistic and litigious society
3.5-fold increase in the number of civil suits brought against Canadian physicians
between 1976 and 2010
100-fold increase in the related costs of responding to complaints and actions
Canadian Medical Protective Association (CMPA)
o Organization that advises and represents physicians in legal matters
o Opened almost 20000 new files involving complaints against physicians in
2010
o 2010 expenditures $347 million
$154 million in damage awards and settlements
$117 million in legal costs
$11 million in fees for experts and consultants
Volume of litigation involving other health professionals appears to have increased as
well
Health professionals who serve in an administrative capacity within an institution,
agency or clinical practice will have the added burden of ensuring that their policies
and practices are compatible with the increased threat of litigation and the
proliferation of regulatory legislation
Factors that explain the expanding role of law in treatment:
o Rise in concern about the legal rights of patients and clients
Paternalistic concepts have increasingly given way to rights-based
notions of treatments
Issues traditionally framed in terms of the patients best interests are
increasingly analyzed in terms of the rights of the patient and the legal
obligations of his or her health providers
o The law now recognizes that young, old, and physically and mentally disabled
patients who are competent are entitled to make their own decisions,
regardless of the wishes of their next-of-kin
Health professionals may find themselves caught between their
confidentiality obligations to their patients and the expectations of
parents and others who believe that they are legally entitled to be
informed
o Increases in public concern about specific issues, such as child abuse, violence
against women and privacy
o Counseling and care professionals have been subject to a growing number of
complex, piecemeal statutes
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Ontario enacted 4 new health statutes that came into force 1995, only
to repeal 2 of them and amend the remaining 2 the following year
o The law has evolved with developments in health services
No longer limited to doctors, nurses, and other traditional health
professionals
Now includes: social workers; family, addictions and employment
assistance counselors; and child and youth workers
Supportive housing, shelters for battered women, long-term care
homes, group homes, crisis intervention programs, peer counseling,
elder care, and other services now come under the health, counseling
and care umbrella
o Health issues have become more politicized
Hospital closings, wait times, the preservation of universal access,
physician shortages, and other health issues are commonly featured in
federal and provincial political platforms
Debate on the “Zamboni” procedure or “liberation therapy” to clear
“obstructed” veins in the neck for Multiple Sclerosis patients
o These legal and political changes in the health environment have occurred in
an era of fiscal restraint
Canadian health care costs have increased steadily as a percentage of
GDP
5.5% (1960)
11.6% (2011)
Health costs now constitute the largest component of provincial
budgets
Governments are under pressure to streamline services and reduce
costs
Many health professionals will be called upon to do more with less
Health statutes enacted since 1995
o Social Work and Social Service Work Act (1998)
o Patient Restraints Minimization Act (2001)
o Good Samaritan Act (2001)
o Mandatory Gunshot Would Reporting Act (2005)
o Long-Term Care Homes Act (2007)
o Apology Act (2009)
o Child and Family Services Act
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o Mental Health Act
Although the legal environment has become more challenging, it would be incorrect
to characterize it as being hostile
o Canadian courts have generally been supportive of health professionals
o Our courts do not expect health professionals to have an intimate knowledge
of the law, nor do they demand that all their decisions be correct
Canadian courts assess the conduct of health professionals in terms of 2 criteria:
o Did they act reasonably in the circumstances, as measured by what would be
expected of a reasonable person with their qualifications, training, and
experience?
o Did they act in good faith, in that they put the legitimate needs of their
patients first?
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Document Summary

Canada has become a more legalistic and litigious society. 3. 5-fold increase in the number of civil suits brought against canadian physicians between 1976 and 2010. 100-fold increase in the related costs of responding to complaints and actions. Canadian medical protective association (cmpa: organization that advises and represents physicians in legal matters, opened almost 20000 new files involving complaints against physicians in. million in damage awards and settlements. million in fees for experts and consultants. Volume of litigation involving other health professionals appears to have increased as well. Factors that explain the expanding role of law in treatment: rise in concern about the legal rights of patients and clients. Paternalistic concepts have increasingly given way to rights-based notions of treatments. Ontario enacted 4 new health statutes that came into force 1995, only to repeal 2 of them and amend the remaining 2 the following year: the law has evolved with developments in health services.

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