Dear Lonny
I know wait times have been a problem for all of our
patients for years, but with some of the recent buzz
on the issue, I am getting concerned. Could I, as a
specialist physician, be liable in the event a patient
does not receive treatment in accordance with the wait
time guidelines?
— Trying
Not to Keep Them Waiting
Dear Trying
It's not difficult to imagine a nightmare medicolegal
scenario: you can't give a patient the necessary service
in a timely manner and, as a result, a patient suffers
harm or dies — better call your lawyer. Now that
"medically acceptable" wait times benchmarks have been
developed in certain clinical areas (cancer, cardiac
care, diagnostic imaging, joint replacement and vision
restoration), even though these were not intended to
be standards nor minimal requirements for the avoidance
of liability, physicians would be wise to take steps
to assist patients in receiving treatment in accordance
with the benchmarks. Where this is not possible, consultant
physicians should ensure that the patient is aware of
the potential adverse consequences of waiting, and of
alternatives like trying different treatment options
or obtaining the treatment elsewhere. The Canadian Medical
Protective Association addressed this very issue in
its March 2007 Information Letter. Their conclusion
was that responsibility for ensuring long waits don't
hurt patients falls on the referring doctor and the
specialist.
Dear Lonny
I'm a family doc and I'm still trying to get used to
the new privacy legislation in Ontario. The father of
one of my young patients asked me for a copy of all
of his medical records. I said yes at the time, but
then remembered the mother has sole custody and the
parents fight about everything. No matter what I do,
one parent will be upset. What's my best course of action
here?
— In a Privacy
Predicament
Dear Predicament
Your situation is a difficult one. In Ontario, the law
gives a parent the right to make decisions about a child's
personal health information and to access these records.
However, that doesn't apply for a parent who has only
a right of access to the child. The custodial parent
would be the child's substitute decision-maker, so in
your case only the child or his mother have the right
to access the child's medical records. Without the mother's
consent, you can't allow the father to access his child's
personal health information or obtain copies of the
child's medical records. You are, unfortunately, caught
in the middle. All you can do is to ask the father to
produce either the mother's consent or a court document
confirming that he has the right to access the child's
personal health information, and then get out of the
way and let the parents battle it out.
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Each month Lonny J Rosen, a partner
in the Health Law Group at Gardiner Roberts LLP, will
answer your burning medical-legal questions. Got a question
for Lonny? Send it by email to health_lawyer@nationalreviewofmedicine.com
or by fax to 514-397-0228
This column
is intended to convey brief and general information
and does not constitute legal advice. Readers are encouraged
to speak with legal counsel to understand how the general
issues discussed in this column apply to their particular
circumstances.
http://www.ontariohealthlaw.com
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