Critical Issues in Health Law and the Future of Medicare

Case Law and Legislation Updates

Changes to the RHPA

This past week I attended a session hosted by the Health Law section of the Ontario Bar Association on Critical Issues in Health Law: Case Law and Legislation Updates.

Richard Steinecke of Steinecke Maciura LeBlanc, Barristers & Solicitors, spoke about recent amendments to the Regulated Health Professions Act in Ontario. As part of a 5 year review by the Health Professions Regulatory Advisory Council (HPRAC), a number of changes will become effective June 4 2009 under Bill 171.

The changes will generally provide greater Ministerial control, better human resource planning, significant reforms to the complaints and discipline process, a separation of quality assurance from complaints, and more transparency for the colleges.

The registers for the colleges will see significant changes, with much more content than was previously available. The entire register will now also be online, which I noted brings in professional reputation management issues into light. Medical professionals may have to start thinking of search engine optimization as well.

A new Inquiries, Complaints and Reports Committee (ICRC) replaces the previous Complaints Committee, Executive Committee, and Boards of Inquiry, although the discipline process remains largely the same.

There are also new regulated health professions, like traditional Chinese Medicine and Acupuncture, Psychotherapy, Kinesiology, Naturopaths, and Homeopaths, as well as two new controlled acts, psycotherapy and acupuncture.

Gore v. CPSO and Investigatory Powers

Nina Bombier of Lenczner Slaght Royce Smith Griffin LLP provided an overview of Gore v. College of Physicians and Surgeons of Ontario, which held that the College of Physicians and Surgeons of Ontario (CPSO) could observe a physician treating a patient as part of its investigations.

This expansive interpretation of the College’s powers emerged in the context of the 2007 death of a Toronto real estate agent, Krista Stryland, after Dr. Behnaz Yazdanfar performed liposuction on her Toronto Cosmetic Clinic.

Section 76 of the Health Sections Procedure Code empowers CPSO to compel observations of surgeries when inquring or examining a physician’s practice when there was a concern about competence, despite the risk of self-incrimination for physicians.

There are some privacy implications from the decision, especially if investigators chose to observe therapy and counseling sessions as well.

Although the case is scheduled to be heard by the Ontario Court of Appeal in June 2009, the new Ontario Bill 141 would essentially provide CPSO the same powers.

Minister of Health and Long-Term Care, David Caplan, said,

Our government is taking yet another step to improve patient safety in the province. This legislation will ensure that patients receive safe and high quality care from their health care providers, using the best medical equipment in the most secure settings.

Implications of the Fly in the Water Bottle <

Barbara J. Walker-Renshaw of Borden Ladner Gervais LLP presented her perpsective on the 2008 SCC decision, Mustapha v. Culligan of Canada Ltd., and its implications in damages for mental distress.

The now infamous case discussed whether damages should be awarded to a man who supposedly became ill after discovering there was a dead fly in his water bottle. He had not consumed any of the water, but his symptoms included nausea, vomiting and abdominal pain – simply by looking at the fly in the water.

Although the claim was successful at trial, it was overturned at the Court of Appeal. The SCC agreed that the plaintiff had no cause of action, but for different reasons.

The SCC applied the reasonably foreseeability test after a duty of care has already been established, when considering if damages are too remote. Unusual or extreme reactions to events cause by negligence are imaginable, but not reasonably foreseeable. Or as McLachlin C.J. said, in para. 16

…the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.

Reasonable foreseeability is therefore a threshold test for establishing compensability of damages at law. The thin-skulled plaintiff is still a consideration, but only after reasonable foreseeability of damages is established.

Aside from this main change of shifting reasonable foreseeability analysis to the damages stage in a recognized duty of care, this decision essentially reinforces existing negligence law. The decision has been cited by very few cases in the health law context, and usually it is for a delay of diagnosis.

Duty of Care to Fetus

Anne Posno of Lenczner Slaght Royce Smith Griffin LLP discussed Paxton v. Ramji, an Ontario Court of Appeal decision that held that there was no duty of care owed to a fetus. Leave to appeal the decision to the Supreme Court of Canada is currently sought.

The basis of the ruling was on two main principles:
– There is insufficient proximity between the physician and the potential child, who is not a separate legal entity until it is born
– There is a unique relationship between a woman and her potential child, and the law specifically recognizes a woman’s complete autonomy over her body

McLachlin J. explained the unique relationship in the SCC case of Winnipeg Child and Family Services v. G.(D.F.) at para. 27,

Before birth the mother and unborn child are one in the sense that “[t]he ‘life’ of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman”: Paton v. United Kingdom (1980), 3 E.H.R.R. 408 (Comm.), at p. 415, applied in Re F (in utero), supra. It is only after birth that the fetus assumes a separate personality. Accordingly, the law has always treated the mother and unborn child as one. To sue a pregnant woman on behalf of her unborn fetus therefore posits the anomaly of one part of a legal and physical entity suing itself.

Some of the implications of this decision discussed by the court are that a disabled child will have no cause of action for medical negligence that caused a disability. The court took the position that it should not create a remedy when there is no duty of care owed.

The previous leading case in Canada on this subject of wrongful life was in Lacroix v. Dominique at the Manitoba Court of Appeal.

Birth torts in this case were categorized in two groups:

1. abnormalities that have been caused by a wrongful act or omission, which usually involves the act of a physician directly impacting the health of an infant
2. where a child would not have been burn, but for a wrongful act or omission, typically where a physician fails to warn a mother of a risk of giving birth to an abnormal child, which then deprives the mother of an option to avoid conception or terminate the pregnancy

Other recent Ontario Court of Appeal cases have also addressed the issue of claims for wrongful life. In Bovingdon v. Hergott, the court recognized that a physician should not be expected to resolve a potential conflict between the interests of a mother and a potential fetus, as this additional duty could interfere with a woman’s choice for her own treatment. Although the children had no cause of action, the parents’ claim for wrongful birth did receive significant damages and relatively high costs.

If the case is granted leave to the SCC, it will likely be the final word in Canada on the duty of care owed to a potential child by a physician. However, a recent B.C.S.C. decision in Eldiger v. Johnston did not follow the holding in this case.

Public Health Class Actions

Tanya M. Goldberg of Borden Ladner Gervais LLP and Megan B. McPhee of Kim Orr Barristers P.C. (with files from Alex Dimson, student-at-law) provided different perspectives on public health class actions, such as SARS and Maple Leaf.

The major pieces of legislation governing public health in Canada Federally include the Food and Drugs Act, Medical Devices Regulation, the Quarantine Act, and the Public Health Agency Act.

Recent class actions against Health Canada include allegations of negligence in relation to medical devices. In Klein v. American Medical Systems, a woman suffered injuries she alleged were from a medical device licensed for sale by Health Canada to cure female incontinence. Although the motion judge refused to strike the claim, the Court of Appeal allowed the appeal and stated that the proper defendant in the case was the manufacturer.

Other claims against Health Canada include Drady v. Canada and Attis v. Canada, where the regulation of temporomandibular (TMJ) joint and breast implants were respectively addressed. The Ontario Court of Appeal struck both claims, which to date limit the extent Health Canada may be found liable for its regulatory functions. By analogy this could include the pharmaceutical industry as well.

In Ontario, public health legislation is primarily based on the Health Protection and Promotion Act (HPPA), which established the Ontario Agency for Health Protection and Promotion in 2007. The Municipal Act allows municipalities to pass by-laws related to public health, including boards of health.

It can be difficult to hold governmental bodies accountable based on regulatory authority using the modified Anns/Cooper test in conjunction with Edwards v. the Law Society of Upper Canada.. Establishing duty of care can be difficult without a factual basis to demonstrate a relationship of proximity between the government and affected individuals.

The distinction between provincial and municipal powers can arise as in Williams v. Canada, [2005] O.J. No. 3508, a proposed class action over the 2003 SARS response, where Cullity J. accepted that responsibility of public health rests with the provincial boards of health and not the City of Toronto.

However, Cullity J. was not prepared to strike the claims on the basis of the second part of the Anns/Cooper test, looking at policy implications such as indeterminate liability, effect on taxpayers, and chilling effects on public officials.

Five different class actions were established against the Provincial Crown following the 2003 SARS outbreak, by civilians and nurses who respectively contracted SARS, which were allowed to proceed in part but are currently awaiting determination after being heard before the Court of Appeal.

In Eliopoulos v. Ontario, a claim was brought against the Province claiming they could have prevented the outbreak of West Nile Virus. Both the Superior Court and the Divisional Court denied a motion to strike the claim as disclosing no cause of action of a private law duty of care for implementation based on a 2001 report by the province.

The Court of Appeal did allow the appeal and dismissed the claim, taking a similar position as Klein in that a private law duty of care would create an unreasonable and undesirable burden on the province that would interfere with public health decision-making.

Municipalities have found themselves as defendants of class-actions, as in Pearson v. Inco Ltd., where plaintiffs claimed that the nickel refinery emitted carcinogenic substances. The claims against the Regional Municipality of Niagara and the City of Niagara were dismissed as disclosing no cause of action.

Several public health class actions have been filed against private parties as well. In Anderson v. Wilson, a claim was approved against a physician running EEG clinics in Toronto after a possible link was identified with a Hepatitis B outbreak. In Healey v. Lakeridge Health Corp., a class action also failed due to insufficient proximity with a broad group against a physician and hospital allegedly exposing 2,800 people to active TB.

Plaintiff’s counsel acknowledge the difficulties in bring a public health class action due to Rule 21 motions early in the proceedings due to proximity. According to Childs v. Desormeaux, once a prima facie duty of care is established by the plaintiff, the burden of proof shifts to the defendant to demonstrate countervailing policy considerations.

Such determinations cannot adequately be made at the Rule 21 stage without the benefit of a full facutal record because according to Grant v. Canada, [2005] O.J. No. 3796 (S.C.J.) and Haskett v. Equifax Canada Inc., [2003] O.J. No. 771 (C.A.) foreseeability is a question of fact determined at trial. But the SCC in Syl Apps Secure Treatment Centre v. B.D., adopted a different approach to Rule 21 in para. 19,

If there is no legally recognized duty of care to the family owed by the defendants, there is no legal justification for a protracted and expensive trial.

Plaintiff’s counsel would suggest that policy determinations are being made in the absence of evidence. A contextual analysis of factors affecting both sides is impossible, and where damages are sufficiently high the Crown can enjoy blanket immunity. As a result, negligence claims against the Crown are becoming increasingly difficult, and the risk of pursuing such claims in public health are potentially too high.

Statutory interpretation should not be the only basis for determining a proximity analysis, and the implementation of the statute may give rise to a sufficiently close relationship between the parties to create a duty of care.

A strategic decision to counter a Rule 21 motion would be to bring a Rule 20 cross motion for summary judgment. This allows parties to file affidavit evidence, and can force a full factual record before the court to make an informed analysis of the merits of a claim.

The Future of Medicare

My Alma Mater, Ryerson Health Services Management program, hosted an event this weekend as well, Tomorrow’s Agenda: Canada’s Plan for Health Care.

One of the speakers was Dr. Michael Rachlis, author of Prescription for Excellence. Dr. Rachlis spoke on “The Second Stage of Medicare,” effectively debunking the various narratives about the condition of our health care system in Canada.

Specifically he addressed the issue of wait times, and provided a number of public system solutions to these problems.

Our Medicare system is not broken, it just needs to be taken the extra step. The solution is not greater privatization, which will only increase costs and worsen our outcomes.

Dr. Rachlis’ entire book is available online for free from his website.

A National Summit

I also met Lonny Rosen of Gardiner Roberts at the OBA event. He recognized me from online legal writing, proving to me that we do actually have readership.

I promised him that I would share an upcoming CBA event in Vancouver that he’s chairing, Critical Issues in Health Law: A National Summit, where they will be discussing electronic medical records, medical malpractice litigation, medical ethics, and competition in health care.

In a couple days I’m leaving for Vancouver on unrelated business, and although I’ll be there for several weeks I won’t be able to attend this event. Maybe someone there who does attend will share their notes.

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Comments

  1. Great summary, Omar. Many thanks for this.

    With respect to the RHPA, was there any discussion of the appropriateness of regulating professions like homeopathy, which provide therapies whose efficacy is unproven? I don’t mean to harp on this point, but it does seem passing strange that this issue, as far as I know, was never raised during the committee hearings on the amendments. After all, no one would seriously suggest that we regulate phrenology, crystal therapy, or manipulating auras. Or would they?

  2. Alex,
    This wasn’t discussed, but I do see your point. Some would make a similar argument about other existing colleges though.

    Homeopathy has been regulated in other common law jurisdictions, but continues to receive criticism from the scientific community.

    The creation of a college is intended to protect the public from harm. Regulation is not synonymous with promoting the use of the remedy, or even government funding of the service.

    There is increasing concern about the interaction of Traditional Chinese Medicine with mainstream pharmaceuticals. It’s unlikely that manipulating auras will do much harm to a patient, aside from setting them back financially.

  3. Omar, the article you linked for “criticism” of homeopathy is – perhaps unintentionally – an article by a prominent U.K. homeopathic practitioner attempting to explain away the consistent failure of homeopathy to “work” by arguing that double-blinded clinical trials interfere with the mechanism. (Yes, and I can make myself turn invisible – but only if no one is looking. Really.)

    It seems at least an open question to me whether there aren’t ways to protect the public that don’t give government imprimatur to quackery. If giving a putative “health profession” a self-regulating body and a governing act isn’t promotion, it’s too close for my taste. At the very least there should be a debate on the subject, which I have yet to see.

  4. You heard the one about the homeopath who died of an overdose? He forgot to take his medicine.