Dr Jacques Chaoulli's
landmark lawsuit has heralded an era of wait time
reforms
Photo credit: Liam Maloney
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Wait time recommendations in the
2005 report of the Wait Time Alliance may inadvertently
put physicians at risk of being sued. At least that's
the message from the Canadian Medical Protective Association
(CMPA) in its Information Letter, sent out to physicians
in March.
Dr John Gray, a former family physician
who heads up the CMPA, says it's inevitable that a case
will arise where a physician's failure to treat a patient
within guaranteed wait times is blamed for an adverse
outcome. "The purpose of our article is not to scare
physicians," he says, "but to advise them how these
issues will likely play out if they come to court. And
we think they will."
ON
ALERT
The CMPA's warning points out that the Wait Time Alliance's
2005 recommendations of "medically acceptable" wait
times (for cancer radiation therapy, cardiac bypass
surgery, diagnostic imaging, joint replacement and cataract
surgery) were qualified in the report as "health system
performance goals." "They are not intended to be standards
nor should they be interpreted as a line beyond which
a healthcare provider or funder has acted without due
diligence," the report states.
Nevertheless, that's exactly what
the CMPA is now convinced will happen. Last year Quebec
became the first province to adopt guarantees, for cataract
surgery and knee and hip replacement, in response to
the Supreme Court of Canada's Chaoulli decision. Nova
Scotia recently became the second, pledging on March
26 to begin all cancer radiation therapy within eight
weeks — and garnering $24.2 million from federal
coffers. The next day, Ontario announced plans for a
cataract surgery wait time guarantee beginning in 2009
worth $205 million. Newfoundland and Labrador and Saskat-chewan
have followed suit. This spate of announcements is no
coincidence — it's hot on the heels of a very health-friendly
federal budget which included a whopping $612 million
in funding for a Patient Wait Times Guarantee Trust.
Dr Gray is worried that guaranteeing
procedures will be done in a specific timeframe is a
dangerous move. "When you hear words bandied about like
guarantees," he says, "the concern is if courts may
hold someone accountable for guarantees, and if that
may be the physicians."
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Waste vs wait
Are
wait times inevitable? A pair of UBC healthcare
management researchers, Martin L Puterman and
Jonathan Patrick, think so. They released a research
paper on what they call "intelligent scheduling"
in February.
"The
main message," says Dr Puterman, "is that if you
match capacity and demand, you will have wait
times — no other way about it. If you want
very few wait times you have to have idle capacity
because the demand of the system is very variable."
The paper shows that to minimize wait times to
the point where just 5% of patients' waits exceed
recommended guidelines, we'd have to have idle
capacity — or, as Dr Puterman calls it, "wastage"
— 23% of the time.
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PROTECT
YOURSELF
The CMPA warning includes advice to help physicians
reduce their chances of being successfully sued over
a failure to meet a guaranteed wait time. Referring
physicians have a responsibility to ensure their patients'
conditions don't deteriorate in the interim, by making
sure patients understand what clinical signs they should
be aware of that could necessitate immediate attention,
and perhaps following up with them by phone. "The courts
are beginning to scrutinize the kind of advice doctors
are giving to patients when they leave," says Dr Gray.
"'Call me if you're worried' is not sufficient anymore."
Physicians should document all steps of this process
for their records, he says.
For specialists, the CMPA's recommendations
are controversial: the physician receiving the referral
should consider declining the consult if the projected
wait would exceed recommended benchmarks, and refer
the patient to another specialist.
WITHIN
REASON
Not everyone agrees with the CMPA's assessment. Joshua
Liswood, the chair of legal firm Miller Thomson's health
law practice, says the CMPA's warning is alarmist.
"One can't simply look at a ministry
guideline or directive in wait times and draw the conclusion
that physicians will be found potentially negligent
if a patient suffers because wait times are not met,"
says Mr Liswood. "There are a number of other factors
to decide if a doctor acted reasonably." He suggests
that the appropriateness of waiting — if a wait
is determined by a court to be reasonable or not in
light of a particular patient's condition — will
remain the most important issue, and not adherence to
wait times benchmarks.
PRIVATE
AGENDA
The recommendation to decline consults, Mr Liswood alleges,
is overstated and could promote further outsourcing
of medical procedures to private clinics or out-of-province
facilities. This practice is now mandated in Quebec
if wait times benchmarks are exceeded.
Mr Liswood is convinced the CMPA's
action is politically motivated. "For those who have
a political interest on behalf of the medical community,
vis-ê-vis the governments, it certainly added
a sort of strong political arrow to somebody's quiver,"
he says. He says he has a hunch some medical groups
are raising an unwarranted alarm over the dire state
of the medical system in order to promote their members'
economic interests in profitable private ventures.
The CMPA fervently denies any hidden
agenda. "We have never taken a position on privately
delivered care, and the Information Letters we send
to our members make no mention of it. There is no foundation
for these criticisms," replies CMPA representative Diane
Vist.
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