MJM MedTalks
Let’s Talk LMCC (S01E04): Legal, Ethical and Organizational Aspects of Medicine - Confidentiality and Legal Systems

S01E04

Sarah Grech, Lara Khoury, Carolyn Ells, Esther SH Kang, Katherine Lan, and Susan Joanne Wang for the McGill Journal of Medicine1
Published online: August 14, 2023

1McGill University
mjm.med@mcgill.ca

Abstract

Welcome to the McGill Journal of Medicine (MJM) Let’s Talk LMCC Review. This podcast series was created to aid medical students studying for the Canadian Medical Council (MCC)’s licensing exam. Each episode is created based on specific LMCC objectives and is divided into two sections. In Section 1 we provide an overview of the topic with the help of experts in the field, followed by Section 2 where we review LMCC styled questions to help consolidate knowledge. In this episode, we welcome our expert advisor, Dr. Carolyn Ells, a recently retired Associate Professor in the Department of Medicine at McGill, based at the Biomedical Ethics Unit, to speak on LMCC Objectives 121-1 Consent, 121-2 Truth Telling, and 121-3 Negligence. This episode was written by MJM Podcast Team members Amanda Sears and Esther Kang and Dr. Carolyn Ells. Please see our website www.mjmmed.com for more information, including a link to show notes.

     

Content overview

Glossary

Links and papers

Transcript

0:00 Sarach Grech (SG): Hello, my name is Sarah Grech and today I will be hosting this episode of the LMCC review. This episode is Part Two of our two-part Bioethics series, in which we will be going over key concepts you will encounter on the LMCC. In episode one, we discussed truth-telling, negligence, capacity, and informed consent. In this episode, we will discuss governing authorities in Canada, legal liability, confidentiality, and physician-patient relationships. We will also go over sample LMCC questions and potential responses. Here today with us is Professor Lara Khoury, an Associate Professor in McGill Faculty of Law. She’s an Associate Member of McGill’s Institute of Health & Social Policy and Biomedical Ethics Unit. Thank you for coming to our podcast today.

Lara Khoury (LK): Thank you for having me, Sarah.

SG: Before we begin, we would just like to highlight that although we aim to provide accurate facts and definitions, please be mindful that not all of our concepts we go over here today will be applicable in your province, as the practice of ethics and laws vary dramatically depending on your location. This is especially true for our Quebec listeners, as many legal concepts that we review may not be in standing with the local legal procedures. All to say, we hope this episode helps you get familiar with these key concepts, but for practical legal or ethical advice, please refer to your local experts.

1:22: So before we delve into the legal duties of physicians, can you please tell us a little bit about the Canadian legal system as it relates to healthcare?

LK: So in Canada, one thing that is maybe interesting to know is that the constitution of the country does not allocate the subject of health to, specifically, to the federal or the provincial and territorial governments and parliaments. And so health is actually a shared competency between both orders of government and of parliament. But healthcare systems are governed, actually. They are allocated to provincial and territorial government and parliament, so it’s a little bit clearer on that front. And so therefore, the provincial and territorial governments are responsible, for example, for determining standards for the management of hospitals, the licensing of nurses, physicians and other healthcare professionals, administering the provincial medical insurance plan, deciding what goes into the plan, and even delivering certain public health services, even though public health is actually also a shared competency. One thing of note though, is that the federal government is using what we call the ‘spending power’ to give money to the provinces and territories to fund the healthcare systems, but it comes with strings attached. So they will give you money for your healthcare system but you’ll need to do ‘A’, ‘B’, ‘C’, ‘D’ and if you don’t do it, you give me back the money. So the federal government is always somewhere there in the shadows. So additionally, the Canadian medical systems (because there are different systems across the country, province to province, territory to territory) are mostly publicly funded at a level of 70%, leaving 30% delivered privately. It means that, of course, that funding will come from- directly from the provinces and be injected into the healthcare system. Technically, the constitution gives some direct responsibilities to the federal governments that are relevant to the healthcare sector. For example, officially, the federal government has the responsibility for providing healthcare services for Indigenous people but the reality is that the federal government interprets the constitution as- as giving them partial responsibility, not for all Indigenous communities. So that’s a huge problem in our country. The constitution, in another example, gives federal jurisdictions to- regarding marine hospital ships and quarantine services or quarantine control basically.

4:36: The practice of medicine is governed by provincial professional associations, for example in Quebec it would be the Collège des médecins. In Ontario, it would be the College of Physicians and Surgeons of Ontario. And those colleges or professional organizations, they are in charge, mainly really, of protecting the public, not protecting the doctors, protecting the public by ensuring, for example, the quality of medical practice and the respect of ethical obligations. Now there’s another association, the Canadian Medical Association (CMA), which is a national association. This is actually an association of physicians. I’m mentioning it here because it has developed a Code of Ethics that is actually very good and provides a framework of some fundamental ethical principles that physicians across the country can refer to. But for Quebec physicians, what is interesting is that in Quebec we have an excellent, even better, Code of Ethics that has been made in the form of a regulation. So it has a formal legal status, which the CMA Code of Ethics doesn’t have, so that’s another very nice example and I encourage all physicians across the country to read that Code. Even if it only applies to Quebec because it’s very complete and very well-drafted. Finally, I must mention the Medical Protective Association (CMPA). This is a physician-run defense organization for physicians. It is not an insurer, it is a non-for-profit organization. They collect fees from their members, most physicians across Canada are members of the CMPA. And with the fees, which they invest very wisely, they provide legal defense against malpractice claims and they also provide risk management and educational programs to help physicians reduce their medical legal risks. And so, as I’ve said, most Canadian physicians are members of the CMPA, as well as some residents in some provinces.

7:04 SG: When dealing with medical malpractice claims, the courts in Quebec follow civil law whereas the rest of Canada follows common law. This creates some differences in the applicable rules, but there are many commonalities between the two systems. Can you speak to some of these similarities and differences that are relevant to physicians?

LK: Yes, so when courts are asked to decide on a malpractice claim, they will require that the patient who is going, naturally, to be the plaintiff in those claims, prove a certain number of things. There are three conditions to prove under Quebec civil law, and there are five to prove in a common law. But three- the three Quebec conditions are shared by the common law, so I’ll start with those because they are common to the two systems. I’ll say a few words about the extra two ones in the common law. So for Quebec, this is technical but usually it’s called ‘contractual liability’ because in most cases patients have a contract with their physicians—it’s not written, it’s an unwritten contract but it is a contract. The conditions are (1) Fault, (2) Injury, and (3) Causation. And in the Common Law, the system that applies most often is called the ‘Tort of Negligence.’ It has five conditions: (1) Duty of care, (2) Fault, (3) Injury, (4) Causation, and (5) Absence of remoteness. So you see that fault, injury, and causation are the three common elements.

8:35: So I’ll explain them very briefly. Fault, first, in the common law is called ‘breach of the standard of care’ or ‘breach of the duty of care’. Professor Ells has explained it in Part 1 of this podcast. It’s really- what you have to demonstrate is that the defendant physician has not acted as a reasonable physician would have done in the same circumstances. And we take into account experience, specialty, so you know, a resident will not be judged the same way as a neurosurgeon who has done a fellow in a very complex technique that is at issue in front of the court, okay. So the standard is adjusted to take those things into account. It’s the same in Quebec or in the rest of Canada. Injury is injury. ‘Adverse event’ maybe is a term that you might be more familiar with. ‘Injury’ is the technical term that we use in law. The patient must have suffered a negative consequence. This is true in most cases except cases where what is claimed is consent has not been obtained. It is an exception in the common law, you don’t need to prove injury but in all- most cases you have to prove injury. Causation is the causal link between the fault or the breach of the standard of care, the negligence (these are all synonymous) and the injury. And so we have to prove that the injury occurred because of the negligence. It sounds simple but it is quite complex in practice. And finally, the common law’s two additional conditions: Duty of care and Absence of remoteness. They are very rarely an issue in the typical malpractice case but I’ll explain them anyway. A duty of care is a legal obligation that is imposed on an individual to act with care in his or her relationship with another. The thing is that, in the common law, this is not owed towards everyone. You need to have some kind of close and special relationship with someone else to owe that duty to someone else. In the civil law, we think that duty is owed to everybody. We don’t make a distinction. Common law is a little more restrictive. The reason why this is rarely an issue is that doctors are in a close relationship with their patients so they owe that duty of care, there’s just cases sometimes where it’s not clear if there’s a doctor-patient relationship. Those are more difficult but if you are your doctor’s patient, your doctor has a duty of care towards you. And finally, the last condition to be honest, I’ll just explain it but without going further, the test for remoteness of damage is whether the kind of damage suffered was reasonably foreseeable by the defendant at the time the standard of care was breached. This is to exclude strange turns of events, injuries that seem unusual when, you know, put next to the kind of negligence that occurred. We don’t see that very much in medical malpractice claims. Of note: a very important point that I think most medical students and physicians will know but patients don’t always understand is that physicians cannot be held liable for the occurrence of an inherent risk known to happen without negligence. We say in law that doctors are insurers of the patient, that’s another way of saying that they don’t guarantee the success of their intervention. And so the fact that the medical intervention has failed or maybe has led to complications is not in and of itself proof of negligence. More is required. Although we say that physicians do not have a duty to guarantee the success of their intervention but if they do, and that’s actually forbidden by most Codes of Ethics, but if they do guarantee anything: careful. They might be held to it. So never guarantee anything. Just say you’ll act reasonably or do your best but guarantees are to be avoided. And remember the burden of proof in a civil court, that’s true in Quebec as well as outside of Quebec in all provinces and territories, is not beyond a reasonable doubt and it is actually called the “balance of probabilities” and it means that all of the conditions that I’ve mentioned earlier must be- their existence must be more probable than not in the head of the judge. So the balance of probabilities is about convincing the judge that those conditions, their existence, is a little bit more probable than not probable. So it’s not a very big burden on the shoulders of the patient but in practice, it’s difficult to meet.

14:02 SG: One of the major med- major ethical and legal concerns physicians face is the proper implementation of confidentiality. In healthcare, confidentiality refers to the duty or obligation of physicians and other healthcare professionals to protect the secrecy of sensitive personal information confided in them, typically from patients. What should physicians know in regards to their responsibilities on the matter of confidentiality?

LK: So confidentiality is really critical to patient-physician relationships. It must not be taken lightly, it’s a really- it’s a condition for full and open exchange of information and for the establishment of trust between physicians and their patients, so it’s very central to the therapeutic relationship. It can affect the success of the therapeutic intervention. It’s also a right of patients. And courts are quite severe about breaches of confidentiality. In Quebec, for example, they imposed what we call an ‘application of result’, remember I said earlier that physicians do not have a duty to guarantee results? Well in Quebec, they do regarding confidentiality. So it can go that far. So that’s very important and we need to be vigilant nowadays at the age of social media and electronic devices, it becomes more of a challenge I think for physicians.

15:36: Now there are exceptions to the confidentiality obligation, the best known is the consent exception. So patients may consent to certain aspects of their private information to be shared with others. For example, if I go into my doctor’s office and I ask Dr. Ells to come with me to the meeting because I’m nervous and I want someone else to be with me, obviously I am consenting to my information being shared with her. And I mean, there are all sorts of situations where that exception can apply. Maybe another example is I could elect to provide access to specific individuals my medical file, for example. And it doesn't mean that I’m letting go of my right to confidentiality as a whole, it’s just that I am allowed, as the patient, to decide on, you know, very specific exceptions. But you need to get my consent for this.

16:43: So maybe one parenthesis is that confidentiality and privacy are often confused, they’re different. It’s very hard to explain the difference between the two, to be honest. But we could say that confidentiality is a little bit more narrow in the sense that it really protects the patient’s information whereas privacy can tend to be seen as a little bit of a broader concept of what should not be shared to unauthorized others. It could include, of course, personal confidential information but it can expand to other situations, such as the viewing of one’s body during a physical examination. So it’s good to keep the broader concept in mind because it’s important as well. So the onus of protective confidentiality is really on the physicians. And breaches of confidentiality can lead to sanctions by hospitals (there are mechanisms of control within hospitals), it can lead to liability claims in front of courts, and it can lead- and that’s what happens a lot actually to complaints to colleges and the disciplinary council within colleges can apply sanctions to- I was about to say punish but it’s punish but it’s also teach a lesson to physicians so that they take more care in the future. So going back to the ethical principles that were discussed by Dr. Ells in Part 1, really, this confidentiality obligation is really linked to broader concepts of patient autonomy and self-determination, the fact that patients have the right to control their information and to receive protection, from the medical profession but from the law as well, from unauthorized access by others. So maybe if I can give you an example of a provision from the Canadian Medical Association Code of Ethics, which states the following: “disclose your personal-” so it’s a statement of an obligation so “disclose your patients’ personal health information to third parties only with their consent or as provided for by law” so we’re getting there in a moment, that’s another exception, “such as when the maintenance of confidentiality would result in a significant risk of substantial harm to others or, in the case of incompetent patients, to the patients themselves. In such cases, take all reasonable steps to inform the patient that the usual requirements for confidentiality will be breached”. I’m actually gonna talk a little bit later about this exception. But note in that provision’s two exceptions: consent and legal exceptions, exceptions contained in legal laws and statues.

Small parenthesis here again: normally, and I think this is probably true of all provinces but I can give you the example of Ontario here, consent- specific consent by the patient is not required to share medical information within what we call the ‘circle of care’. Obviously this is important because medicine is practiced in teams and there are usually a team around patients depending on the circumstances. And so, it is possible to share information within the patient healthcare team without having to ask the patient constantly for consent in this respect.

20:26 SG: So you’re mentioning the legal exceptions of this confidentiality rule, can you expand on that?

LK: Yes, so provincial laws typically provide for exceptions, specific exceptions, to the confidentiality obligation for physicians and typically it’s in situations where the public and trust may override the patient’s right to confidentiality. I think Dr. Ells was mentioning about ethical principles that, you know, there’s sometimes an order of values that is involved in bioethics and that’s the idea here. Confidentiality is super important but public and trust is also very important and sometimes public and trust will trump patients’ rights to confidentiality. It’s just an ordering of values, basically, that is happening here without diminishing the importance of each- of the right to confidentiality. So it’s hard to give you a perfect Canadian overview of those exceptions because they vary from province to province. So I’m gonna give you just a few examples that I think we find pretty much across the country. So our first exception is where a physician is put in contact with a child that they suspect is the victim of abuse or neglect. Actually- usually, I believe this is a case across the country, this must, MUST, be reported to local child protection authorities that can confirm (in Quebec, it is an obligation by law). So that would be an example. Another example is where a physician knows that their patient is unfit to drive a vehicle, so usually provincial highway traffic legislation will actually allow the physician and even demand that the physician report this to proper authorities. Federal legislation also mandates the same thing for patients who fly airplanes, so if they are unfit to do so this must be reported to the Ministry of Transportation. Now the exception that we saw in the CMA Code of Ethics a little bit earlier is the exception where the patient poses a risk of harm to others. This is an interesting and difficult exception. There are conditions- the conditions originate, actually, from Case Law from the United States but we have actually incorporated these exceptions in different legislation. So, of course, here again you have to check province by province, territory by territory. But the conditions usually will include the following: (1) a clear risk to an identifiable person or group of persons, not to the public at large. Especially outside of Quebec, that troubles the court that has been reflected in the legislation. We don’t want to impose on physicians an obligation to warn the public for example. (2) The risk must be of serious bodily harm or death and (3) danger must be imminent. And so, if a patient says to their physician, I’m sorry for that example but, “I will harm someone in my family. I will do it, I know I am not feeling well today”, you might have all the conditions. But we’ve had a lot of discussions among lawyers about if a patient has a genetic mutation and doesn’t want to tell their family members about it, is that a clear risk of serious bodily harm or death that is imminent? This is a little bit more complex. But it is being discussed right now, whether and in which circumstances that could fall into the exception. But that is very doubtful.

So there are many other situations where provincial or federal laws may require disclosure of a patient’s information, so I really advise everyone to check on a province-to-province basis and know also that exceptions will include reporting obligations under provincial and territorial public health legislation, which we will discuss in a minute. I think it’s worth spending a little more time on this. But generally, I think in terms of your day-to-day practice, when you are in a situation where you might believe that you have to share confidential information, it’s good to ask why are you sharing or why do you think you have to share this information. You need a good reason but I think really, as a lawyer, I have to tell you need- you need a legal permission. You need to be allowed by law to do this or, you know, by courts. And we have court cases that have established exceptions to the confidentiality obligation, as in the case of danger to others. Ask permission, that’s always the best. Ask for your patient’s consent. If you have consent, you know a lot of problems are avoided. What do you tell? Well, you don’t need to tell everything. You need to tell what is necessary or what is required by law. And who do you tell the information to? Well don’t tell everyone, you need to tell those who need to know and those people might be also identified in the legislation.

26:13 SG: A common question physicians-in-training ask in regards to who to disclose to and what to disclose is information that can be shared with public health officials in relation to communicable diseases. Can you tell us a little about that?

LK: Yes, so that’s one exception. When we say we can breach confidentiality obligations in situations provided for by law, so public health law is really a huge- a huge type of legislation that actually governs these types of situations. So some communicable diseases must be reported to public health authorities, local or national actually depends on the case. And actually, the details of what to report, how to report it, whom to report it to, is really is- again it varies across the country so you really, unfortunately, have to call your local lawyer or just do the work yourself and check your provincial public health acts and their regulations, so that can be quite a lot of work. But- so I’m gonna use an example. We’re gonna use the example of HIV reporting and we’re gonna use Quebec. Okay? Just to give you an example of what this can involve.

So in the public health regulations in Quebec, there’s two situations where a physician could be- could be obliged to reveal that their patient is HIV positive. So the first situation is where the physician diagnoses an HIV infection or AIDS in a person who has received blood, blood products, organs, or tissue. This is really important because it’s very limited to those specific patients. This- the diagnosis has to be declared to the competent public health director. So in Quebec there are 18 public health directors in the 18 health regions. And this has to be done in writing, within 48 hours of the diagnosis. And here, really- and this is specific to this situation about the possibility of having received tainted blood products, so it’s important to note this here. There is a form to fill, that has to contain the name of the infection, the surname and given names, sex, profession, date of birth, address, cell phone number, health insurance number of the person concerned by the report, there’s a whole bunch of other information that has to be provided. But in the case that interests us, there has to be information on the blood, organ, or tissue donations of the person affected and the information of blood, blood products, organs, and tissue received by the person affected. So we can read here that this is for the purpose of protecting or removing blood products that might be tainted, I suspect. Okay? And you must sign and date the report. What is going to happen a little bit more often I suspect nowadays, luckily our blood products are safer, is that you may be called to give information about one of your HIV positive patients if the laboratoire de santé publique (Public Health Laboratory of Quebec), I believe it’s at the INSPQ that it’s located, if this lab has a confirmed positive HIV result, they must notify the national public health director, so currently Dr. Luc Boileau. and they give to the national public health director the name of the healthcare professional who has requested the analysis, not the patient okay? Anyway they probably don’t have this information. The national public health director- their staff will do some verifications to verify if that person has already been declared and they do so, it’s very complicated, but they can do so without revealing the identity of the person. There’s a system to make that verification. If they see that that person has not been declared already, they will call you. And they will call you and request the following information, and note that the name and any identifiers of the patient is not being asked here, okay? But the social insurance number is gonna be requested at some point in that process. So you’ll have to give the date of birth, the sex, the place of residence, there’s no name but frankly, you know, there’s a lot of information that has to be given that I think is very personal information. Ethno-cultural origin, country of birth, where applicable, date of arrival in Canada, risk factors associated with acquiring the virus, history of previous tests, clinical status and other relevant laboratory data available at the time of diagnosis, the reason for asking for the test, and in the case of a woman, an indication of whether she’s pregnant. So the first and last name are not included, and the file is going to be maintained by public health authorities in a way in which the info cannot be associated with the health insurance number. This is for surveillance purposes okay? So that’s why, you know, they will be protecting the identity more and of course you know about the stigma that is associated with HIV and still today persists. So that’s something that’s quite important.

Now in Quebec, there are a number of other intoxications, infections, conditions, diseases that must be reported. They include what are called ‘extreme surveillance situations’ which must be reported immediately on the phone. So you don’t write the report, you just pick up the phone and you have to report those situations and then within 48 hours this must be followed by a written report. So examples of situations in which you have to pick up the phone are anthrax, intox- I guess we say intoxication, botulism, cholera, plague, smallpox, viral haemorrhagic fever, yellow fever. So you get the message here, there are really- we need to know about these pretty fast. Now there’s a number of other intoxications, infections, and diseases where we have more time. The report has to be in writing within 48 hours, so still relatively fast but you don’t need to call public health authorities. So the list is very long, it can be found very easily on the Ministry of Health website. What I would stress is that, for you, I think it’s important to note that it includes a lot of common sexually transmissible infections, such as chlamydia, gonorrhea, syphilis, viral hepatitis. It also includes tuberculosis, which is also the only disease, at least in Quebec, that you can treat without consent. That’s the only one. So for all intoxications, infections, diseases other than HIV, which is not associated with receipt of blood products or organs, the name, sex, occupation, date of birth, address with postal code, telephone number, health insurance number, has to be included in the report. So there are identifiers in the report. But it doesn’t go at-large, it goes to the public health agency directorate, and so of course we have to hope that the information is very securely kept there. Just note though that from a public health perspective, from a surveillance perspective, you’re not the one doing contact tracing and calling contacts. That’s not your job, okay? That’s- you have nothing to do with this, okay? So contact tracing and the whole surveillance system is not your business, it’s- someone else is taking care of this.

34:36 SG: Thank you very much for highlighting those very important times in which confidentiality can be breached in certain ways or at times when it’s mandated by legislation to report. So moving on to the relationship between doctors and patients. In common law practices, doctors have a fiduciary relationship with their patients because they are in a position of power in relation to another person, who is the patient. And they are vulnerable and doctors can exercise power in a way that affects the interests of these very vulnerable people who put their trust in these doctors. How should physicians navigate these relationships with their patients?

LK: Yes. So we talk of fiduciary relationships in the common law provinces, it’s really a common law concept but the equivalent exists in Quebec civil law. All those principles are in the Code of Ethics in Quebec, okay, so we have the equivalent. But in terms of fiduciary relationships specifically, by law, when you are in a fiduciary relationship as most doctors are with their patients, specific obligations come with this: the obligation to act with loyalty and good faith, the obligation to avoid conflicts of interest, and the obligation to protect confidentiality, which we’ve talked about already. So you’ll find these obligations in the Code of Ethics in Quebec, as I’ve said. So we’ve talk- well loyalty and good faith is something very general, I think everyone can understand. We’ve talked about confidentiality, so maybe I’ll say a few words about conflicts of interest very briefly. As part of the obligation to avoid conflicts of interest, physicians should avoid treating themselves or family members or others with whom they have close relationships, except in the case of minor conditions or emergencies. If no one else is available, they could do that but, you know, it’s quite restrictive, so that’s something important to note.

And it’s also because of the obligation to avoid conflicts of interest that intimate sexual- or intimate relationships or sexual relationships, or both, between physicians and patients are not permitted. And this is a very serious affair. It can result in criminal accusations, as well as complaints in front of disciplinary bodies. And those complaints can lead to the revocation of the license of practice, temporarily, but I’ll explain this- well right now I can give you an idea of this. I’ll just use the Quebec example. Before 2017, cases of sexual impropriety in front of the collège des médecins, the disciplinary council would actually typically lead to the revocation or removal of the license of practice for a temporary period between 6 and 12 months. But this was deemed not severe enough so in 2017, the law was changed and right now, so that’s Bill-11 it’s called, from 2017. Right now, the minimum period your license can be revoked in Quebec for these cases is 5 years. 5 years is really long. Not- so- anyway don’t want to scare everybody but this is just a message from, in Quebec in particular, to take this very seriously. It could be less, and it could be more depending on the circumstances. But it’s a minimum. It can go lower but in exceptional circumstances. So inappropriate sexual conduct includes, but is not limited to, intercourse, unnecessary or inappropriate touching, sexual jokes or innuendos, unnecessary or inappropriate references to sexual matters, remaining present while a patient who’s capable dresses or undresses.

Now- so that’s when you are in a doctor-patient relationship. A question that is often asked is “what if the relationship is over?” and the patient is no longer your patient and you meet a year or two years later or shortly after the relationship is interrupted or you finished a relationship because you’re interested in the patient, is that acceptable? Now general–and I say generally because I have been going through sources and sources on this and nobody says the same thing, unfortunately. Usually, it will be required that a certain period of time has passed. I’ve seen one year, I’ve seen 5 years in other sources. In Ontario, for example, it’s 1-5 years. I know, and I’ve seen this in several sources as well, that if the physician has performed psychotherapy or some other kind of- type of psychological/psychiatric care, it could be forever. But I’ve seen 5 years in other sources. So I think it’s best, really, to be really careful about this and get advice. The CMPA could be a good place to start in these situations. But just know that it’s not necessarily forever that you cannot have a relationship with a patient but that you have to be real careful and verify and that the length of time may depend on the situation. There’s no magic number at all, okay. There’s a difference between a family physician who has known and treated the patient for 20 years versus an emergency doctor who has seen the patient once, just as an example. These are really different situations and the length of time that must pass could be different.

40:40 SG: Thank you very much. So today on our podcast we have discussed a variety of bioethics topics, including the Canadian legal system as it relates to healthcare, confidentiality, and when confidentiality can be breached for legal reasons, as well as fiduciary relationships. In the next part of the podcast we will be discussing some examples of LMCC questions, which have been provided by Dr. Carolyn Ells.

So our first question: 18 months ago, a patient has shortness of breath and severe chest pain breathing deeply. Chest X-ray revealed a module- nodule in the patient’s lungs, which was biopsied. The pathology report indicated there was a cancerous- it was a cancerous nodule. X-ray and pathology reports, together, suggested the cancer was fairly advanced. Patient only received diagnosis 2 months ago, which was too late for effective treatment and the patient dies. Is the doctor likely to be found liable in this situation?

LK: So the answer is likely no. This is actually a causation issue that’s the condition for liability that would be a problem here. Basically, and that’s really a question we would ask outside of Quebec we would be asking whether given the stage of the patient’s cancer at the time of the alleged negligence if the alleged negligence had not occurred whether she would have survived if informed. And so it really depends on the stage of cancer at the moment, if there’s a good prognosis, and chances of survival, let’s say over 5 years, that is over 50%. The balance of probabilities is leaning towards, you know, the delay having made a difference in this patient’s life but if already the prognostic was bleak, which was implied in this question, well the doctor could argue “even if I had acted more promptly in a situation like this, you know, the outcome would not have been different. There is no causal link between my alleged negligence and the ultimate result in this situation.”

SG: Okay great. Moving on to our second question: in pre-op, a surgeon discloses the two main risks of thyroid surgery (neither risk materialized but he did explain them). Post-operatively, the patient experiences a change of voice and difficulty projecting. The surgeon fears a lawsuit for negligence because these specific risks were not disclosed in the pre-op. Is the doctor likely to be found liable in this situation?

LK: So physicians do not have a duty to disclose risks that are very rare and that a reasonable physician in Quebec would not have disclosed in the same circumstances or, in the rest of Canada, that a reasonable patient would not have wanted to know. So that’s a starting point. But it doesn’t stop here. The risk of being liable here depends on how serious the consequences of this change in voice is for the patient because rare risks must be disclosed if they have serious consequences for the patient. This is called ‘materiality’ of the risk. A risk that is material has to be disclosed so a serious but rare risk has to be disclosed or a frequent risk (less serious) has to be disclosed and then anything in the middle is a little bit more of a grey zone. And so really what I would have to ask back, which is not possible in your exam situation, but I need to know what this patient does with their voice. So the question should be telling me whether this patient is, you know, maybe this patient is a theatre actor and if this patient is a theatre actor, the risk has to be disclosed because the consequences are serious and that doctor could be at fault. But since we don’t know, chances are- well change of voice and difficulty projecting can be really a problem for professors as well, so for a lot of people that could be a serious risk. So it really depends on what it means for the patient. So you need to remember that it’s not sufficient to be liable to have omitted to disclose something that should have been disclosed. There has to be a causal link between the omission to disclose and the outcome. So for example, that’s an example from Quebec. The rest of Canada deals with this differently. If the patient would have consented to the operation anyway, there’s no causation.

SG: Question 3: an elderly patient with Parkinson’s Disease came to the Emergency Department after a fall. The patient is upset and bruised but does not appear to have suffered serious harm. Dr. T, who saw the patient one week ago in a Neurology Clinic, is paged to the Emergency. Upon review of the chart, patient T- Dr. T realized that she inadvertently ordered double the appropriate dose of medication for the patient and the double dose likely caused the patient’s fall. Should this accident be disclosed to the patient?

LK: Okay so generally to answer this question, we make a distinction between medical errors that have had consequences for the patient and medical errors that have not had any consequences. These are near-missed. We’ve made an error but it never reached a patient. So in this case, I would say it has to be disclosed because even though the harm is not serious, there is harm. It has affected the patient, so you would need to disclose to the patient. And actually, this is by law, in Quebec, there is a legal obligation to do this in the province of Quebec. And it’s quite clear in a situation like this.

47:08 SG: Great, and that brings us to the end of our podcast today. I hope this was helpful for those of you studying for the LMCC. A big thank you for Dr. Khoury, for today’s interview, and Dr. Ells for the LMCC practice questions.

LK: Thank you for having me Sarah.

SG: I hope you enjoyed this episode of the LMCC review. For resources and information on the LMCC, any topics discussed in this video, and our expert advisor, Dr. Lara Khoury, please see the description below. We hope you’ll join us for our next podcast episode.



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