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Canadian Medical Protective Association

Checklist Action Series

Medico-Legal Issues

Douglas Bell MD,FRCSC

Objectives

• Review concept of negligence

• Discuss medico-legal issues associated with use of the checklist▪ Please note that general advice is being

offered and specific legal issues should be addressed by a lawyer retained by your institution

Negligence

• The following four elements are addressed in a negligence legal action▪ Duty of care▪ Standard of care▪ Causation▪ Harm

Duty of Care

• Requires the existence of a patient/care provider relationship

• Does not require a face to face interaction

• Exists when a care provider knows or ought to know a patient is relying on their health care advice or action

Standard of Care

• Refers to the quality of care expected of a health professional of similar training in the same clinical circumstances

• The standard is not perfect care but reasonable care

Causation

• The breach in the standard of care has to be shown to be causative of the injury or injuries suffered by the patient

• Causation is judged on a balance of probabilities and not “beyond a reasonable doubt”

Harm

• The patient has to have sustained some form of harm

• The harm is commonly a result of temporary or permanent disability

• The disability can be physical or emotional in nature

Reduction of Adverse Events

• Common approach to the reduction of adverse events is the use of protocols and clinical guidelines

• Among other benefits protocols and clinical guidelines introduce standardization

• The surgical checklist is an example of standardization coupled with team communication

Adverse Event Associated with a Checklist

• Each case reviewed on its own facts and circumstances

• The most important issue will likely be causation

• Difficult to defend the “never events”▪ Wrong patient▪ Wrong procedure▪ Wrong side▪ Medication given to patient with known

allergy

Question 1

• What are the implications of having a permanent record of the checklist being done/not done being done in the chart? If there was an adverse event, and the chart indicated a checklist was not done, would there be medico-legal implications for the physician?

Question 1

• Some jurisdictions and/or hospitals require the checklist to be completed and placed on the chart (Ontario, PEI)▪ May be sanctions spelled out by

legislation or institution

• Unaware of any Canadian case

• Physicians and all team members may be subject to legal action

Question 1

• Doubtful completion of checklist as a team may expose individuals to liability for something that is not their responsibility▪ Each case decided on the facts▪ Regulated health professionals

accountable for care provided within their scope of practice

▪ Liability of each practitioner decided on basis expert opinion regarding expected standard of care

Question 2

• Same question – more specific – if the actual checklist is put in the chart, and there are some components not checked off, and if there was an adverse event…

Question 2

• A US jury trial suggests the responsibility for completing the checklist may fall to the surgical team

• Canadian court may find that the team has responsibility to ensure all relevant portions of checklist completed

• Court may find specific individuals liable▪ Anesthetist unlikely to be liable for

sponge count

Question 2

• Court or College may infer that if something is not checked off on the checklist, it means it was not done unless there is convincing evidence to suggest otherwise

Conclusion

• One might be concerned about the potential for risk with the checklist but the evidence of the WHO study provides strong evidence there will be a reduction in adverse events and medico-legal difficulties are proportional to the number of adverse events

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