Newfoundland Injury Law Blog

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. 

Labels: breast cancer hospital negligence medical malpractice patient injury