Ches Crosbie Barristers

Class Action Lawsuits

1/6/2009
Darlene P. Russell, B.Sc. , LL.B.
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Scandal At Eastern Health Not An Accident (con't.)

Yesterday I invited comments on recommendations I put forward on behalf of the Members of the Breast Cancer Testing Class Action. I listed the recommendations in our Submission in chief. We made some further recommendations in the Reply Submission. Comment on these would be greatly appreciated as well.

Further Recommendations:

(1)        That Eastern Health conduct an appropriate random sample of positive results.

(2)        That Eastern Health and other healthcare boards adopt a rigorous system of in-service instruction at all levels and follow up quality assurance to ensure that any reporting system as recommended by the Task Force be implemented and fully functioning.

(3)        That the Government consider providing proposed legislative amendments to counsel for the parties to the Inquiry for comment with a view to possible improvement.

Labels: breast cancer hospital negligence medical malpractice patient injury

1/5/2009
Darlene P. Russell, B.Sc. , LL.B.
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Scandal At Eastern Health Not An Accident

Was the Breast Cancer Testing scandal an accident? In my Submissions to Commissioner Cameron on behalf of the Members of the Breast Cancer Testing Class Action, I argued that it was not an accident, it was the result of a failure of leadership. The testing failures, and the damage and injury caused to the health of cancer patients, were not just deep in the leadership but broad in the organization – meaning they stemmed from a cultural problem at Eastern Health. A culture of unaccountability, and a culture of cover-up. Anything but a culture of patient safety.

These are big problems, and may beyond the scope of any one inquiry to completely remedy. As counsel to the Members of the Breast Cancer Testing Class Action, we took guidance from a committee of members and interested others, and thank representative plaintiff Verna Doucette and the other members of the committee for their help in coming up with a series of recommendations for Commissioner Cameron to consider.

Such is the importance of the problems not just at Eastern Health but elsewhere in the Canadian healthcare system, that I will list the recommendations here. Please let me know any comments you may have. The recommendations from the Submission in chief will appear today. The recommendations from the Reply Submission will appear tomorrow.

Recommendations:

1.                  Eastern Health needs a new beginning and a true commitment to a culture of openness, accountability and frank disclosure. It also needs to regain the trust and confidence of the public. The Members strongly recommend that a series of town hall style meetings be organized around the province within a reasonable period of time after the submission of the Commissioner’s report, for the purpose of explaining the findings and the response to the findings.

2.                  Hire a CEO who has no ties of loyalty to the present management of Eastern Health, and give him or her the authority to put in place an executive team with the executive ability to follow through on changes. This executive team needs a mandate to establish Eastern Health in a patient-centered culture of safety and disclosure.

3.                  Healthcare workers are not trained in disclosure and an extensive program of training should be put in place from medical school through to ongoing training at all levels.

4.                  One of the challenges for this Inquiry has been to determine which actors were responsible for what decisions. This is a result of the practice of not having position descriptions, not having clear written mandates (eg., Khalifa, Ejeckam), not having clear reporting lines, and making decisions “collegially” by committee, frequently without adequate or any minutes of committee deliberations and decisions. This is another organizational area that would benefit from review.

5.                  New testing procedures involving new equipment should not be adopted without formal written analysis of whether and to what extent the financial and human resources are available to perform to the desired standard. If this analysis had been done in 1997, that answer may have been that the resources were not available to undertake ER/PR testing by IHC and the testing should be outsourced. At least a decision would be made, instead of wandering blindly into a woefully under-resourced testing program.

6.                  The House of Assembly has introduced legislation providing for a public interest disclosure (“whistleblower”) program, designed to encourage persons within government to report instances of behavior that are considered improper, unethical or wrong. The terms of the proposed legislation would presently protect only members of the public service, including an officer of the House of Assembly, but not employees in the healthcare sector. The whistleblower protections should be extended to protect any employee in the healthcare sector who reasonably believes that they have information that could show that a wrongdoing has been or is about to be committed and who makes disclosure in the appropriate manner. Whether whistleblower protection should be extended through the existing intended legislation, or by separate legislation, may be left to the authorities to decide.

7.                  At least three jurisdictions in Canada have now introduced “apology legislation” which will allow a party an opportunity to offer their regrets while having the protection of statute that an expression of sympathy will not be admissible in court as evidence of fault or liability. It is not clear that any Canadian court has ever relied on evidence of an apology as a ground for finding liability, so while an apologies act may make little or no change in substantive law, its proclamation may have value in giving social and legal reinforcement to the perception that apologies are a good thing. For a healthcare institution, apologies are a condition precedent to the re-establishment of the trust and confidence which must characterize the relationship between the institution and its patients.

8.                  The institution should have a crisis management plan, including a plan for the management of communications about the crisis, and if sufficient skill, expertise and surge capacity is not available within the institution, then there should be a mechanism for calling in outside help.

9.                  Just as the lab now engages in external proficiency testing as a form of quality assurance, so should the institution’s policies involving communication and disclosure be subject to quality assurance. This would involve periodic review to ensure compliance with current standards, but much more important than this is periodic audit to ensure that the policies currently in place are actually known about and are being followed in practice. Follow up is required to ensure that perfectly good policies are not left on the shelf to gather dust and never be seen again.

10.              The Inquiry hearings revealed a pervasive tendency of clinical staff to ignore institutional policies and to fail or refuse to file incident reports or request investigation of untoward events. Examples would include the failure to investigate when false negatives were discovered in the late 1990s, and the failure to file incident reports. In other words, a culture of non-reporting. A behavioral organizational review should be conducted, probably by outside consultants, with a view to establishing effective reporting and a quality assurance response to reporting which is effective and is seen to be effective.

11.              This province should consider adopting a Provincial Day of Remembrance for the Victims of Healthcare. This has been done on a national basis for the victims of road crashes, and a national day is now observed on November 19 each year. The needless toll of death and injury from hospital care is even greater than that caused by our highways and our provincial government’s proclamation of such a day would mark a serious start down the road to hospital safety. For further information, see Newfoundland Injury Law Blog.[1]

12.              Eastern Health should post on its website all its policies and procedures. The days when anyone could plausibly argue the need for secrecy over these is gone. Transparency and accountability should rule.

13.              Much of the damage to trust was caused by communications specialists whose lack of understanding of the issues was exceeded only by their zeal to put a positive spin on the story and contain damage. Direct access to the CEO gave these people too much influence. Communications staff should be given training in their ethical responsibilities and they should not report above the vice president level. The need for these positions should be reviewed.

14.              Heather Predham’s position as manager of Quality Assurance and Risk Management implies a potential conflict of interest. A quality assurance manager’s loyalty should be to patients and patient safety. A risk manager who must liaise with the insurer must arguably be loyal to the insurer. These functions should be separated.

[1] http://www.chescrosbie.com/blog/if-a-national-day-of-remembrance-for-road-crash-victims-is-such-a-good-idea-what-about-the-victi.cfm

Labels: breast cancer hospital negligence medical malpractice patient injury

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Date: 09/02/2010

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New research published in this months issue of the Journal of Neurotrauma advocates treating traumatic brain injury as a chronic disease process, rather than an isolated event.

As a brain injury lawyer, I wholeheartedly agree with the conclusions reached in the article.

Brain Injury the Beginning of a Process

The authors of the study, Brent E. Masel and Douglas S. DeWitt from the Univesity of Texas Department of Neurology state that:

The purpose of this article is to encourage the classification of traumatic brain injury (TBI) as the beginning of a chronic disease process, rather than an event or final outcome. Head trauma is the beginning of an ongoing, perhaps lifelong, process that impacts multiple organ systems and may be disease causative and accelerative.

The authors review how a brain injury is often the start of a degenerative process that may cause further injury, even death, months or years after the initial trauma. The conclusions reached by the authors no doubt will be supported by brain injury survivors, their family's and those that advocate for survivors.

Chronic traumatic brain injury disease should be reimbursed and managed on a par with all other chronic diseases. Only then will the individuals with this condition get the medical surveillance, support, and treatment they so richly deserve. Only then will brain-injury research receive the funding it requires. Only then will we be able to truly talk about a cure.

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Date: 09/02/2010

A new class action has been filed in Quebec alleging sexual abuse by priests.

The class action names the Community of the Clerics of St. Viateur in Montreal and the Raymond-Dewar Institute (also known as the Institute for the Deaf and Dumb) as defendants.

The representative plaintiff, Serge D’arcy says he was a victim of sexual abuse by priests while attending the institute between 1967 and 1972. D'arcy states that he was subjected to physical and sexual abuse by priests who were members of the religious group who taught and worked at the Dewar Institute.

I applaud Mr. D'arcy's courage in coming forward on behalf of himself and other victims.

I am pleased to see that class action legislation is being used as a tool to help more victims of childhood abuse. I had the pleasure of being invited to present on this issue at The Canadian Institute's 9th Annual summit on Institutional Liability for Sexual Assault & Abuse.

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Doctor Sues to Silence Patient

Date: 07/28/2010

I read blog post today by my colleague Catherine Bertram, a medical malpractice lawyer in Washington D.C. that I thought was interesting.

Dr. Sues Her Patient

She has posted about a California physician, Dr. Kimberley Henry, who has sued one of her own patients who posted a negative review about Dr. Henry online. I wonder if Dr. Henry is opposed to online rating websites generally or just the ones that say bad things about her? Keep in mind that Dr. Henry has signed up for some of these webites and posted her profile.

Gag Orders

Last year I posted about a similar issue Doctors Forcing Patients to Sign Gag Orders .

Catherine's post indicates that some doctors are becoming more aggressive about trying to prevent patients from exercising their right to freedom of expression.

Coming to Canada?

I'm not aware of any similar suits here in Canada, but the online doctor rating sites like Rate MD are a great resource for Canadians. Is it only a matter of time before we start to see doctors suing their own patients?

What do you think? Let me know by posting a comment.

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