Health Bloghttp://www.branchmacmaster.com/health-blog/en-CA2012-02-16T06:16:56ZSquarespace Site Server v5.11.81 (http://www.squarespace.com/)clear limitation periods for government's independent claims under HCCRAhttp://www.branchmacmaster.com/health-blog/2012/2/8/clear-limitation-periods-for-governments-independent-claims.htmlSusan Precious2012-02-08T17:57:12ZIn HMTQ v. Beacon Community Services Society, 2012 BCSC 144, the government's independent action for recovery of health care costs pursuant to the Health Care Costs Recovery Actwas dismissed as time barred.  In calculating the applicable limitation period in section 8 of the HCCRA, the Court was not persuaded by the government's discoverability argument, noting instead that time cannot be postponed indefinitely, and that the legislature intended that the clear limitation periods set out in s. 8 should prevail.

]]>No special costs against physician for inaccurate clinical recordshttp://www.branchmacmaster.com/health-blog/2011/11/8/no-special-costs-against-physician-for-inaccurate-clinical-r.htmlSusan Precious2011-11-08T23:06:26ZIn Steinebach (Litigation guardian of) v. Fraser Health Authority, 2011 BCSC 1369, the Court dismissed an application for special costs, where a physician in a medical malpractice case was found to have created a record that did not accurately record events which were occurring at the time the record was made, and that some portions of her notes were simply the result of a mistake.  The Court confirmed that there is a significant difference between a trial judge not accepting a witness’s evidence and a finding that a witness has deliberately fabricated evidence.  The disbelieving of a witness as a result of a finding that witness has given dishonest testimony does not without other misconduct attract an award of special costs.

]]>Consent can be ordered for IMEshttp://www.branchmacmaster.com/health-blog/2011/11/4/consent-can-be-ordered-for-imes.htmlSusan Precious2011-11-04T16:18:17ZIn Kalaora v. Gordon, 2011 BCSC 1360, the defendant requested that the plaintiff attend at a psychiatrist for an IME.  The plaintiff agreed to attend but advised the defendant that he would not sign any authorizations or provide consent.  On the day of the exam, the plaintiff refused to provide written or verbal consent.  The psychiatrist did not proceed with the medical examination.  Cancellation fees were imposed.  When plaintiff's counsel consented to the IME by the psychiatrist, it could be inferred that the plaintiff had agreed to the examination.  When he refused to sign the authorization or consent verbally on the day of examination, he withdrew that consent.  The Court found that based on the case law, the Supreme Court Civil Rules and their purpose, the underlying need for full disclosure, it can order a litigant to sign a consent or authorization.  The defendant was required to cover the cancellation fees given the prior notice of the plaintiff's position.

 

 

 
]]>Insite exemption grantedhttp://www.branchmacmaster.com/health-blog/2011/9/30/insite-exemption-granted.htmlSusan Precious2011-09-30T16:47:29ZIn Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, the Supreme Court of Canada found that the Minister's failure to grant an exemption under section 56 of the Controlled Drugs and Substances Act to Insite, the safe injection site in Vancouver's downtown eastside, violated the claimants' section 7 rights under the Charter.  The SCC made an order of mandamus granting the exemption under section 56 of the CDSA.  In future applications for exemptions, the Minister must exercise the discretion within the constraints imposed by the law and the Charter.  Where the evidence indicates that a supervised injection site will decrease the risk of death and disease, and there is little or no evidence that it will have a negative impact on public safety, the Minister should generally grant the exemption.  The SCC upheld the order for special costs.

]]>No lack of informed consent in baby blood casehttp://www.branchmacmaster.com/health-blog/2011/9/9/no-lack-of-informed-consent-in-baby-blood-case.htmlSusan Precious2011-09-09T15:58:21ZIn L.D. (Guardian ad litem of) v. Provincial Health Services Authority 2011 BCSC 628, Mr. Justice Sewell heard an application by the Authority for an order pursuant to Rule 9(6) dismissing a proposed class action dealing with the collection and storage of blood samples for newborn infants in BC.  The action alleges that the blood samples taken to detect 22 medical conditions and retained by the Authority until children were 10 years old, were obtained as a result of negligent and/or fraudulent concealment of material facts and that the taking and storage of the samples constituted an unlawful seizure contrary to section 8 of the Charter.  The action sought s.24 Charter damages as well as damages for fraudulent/negligent misrepresentation, breach of fiduciary duty and inducing breach of fiduciary duty, and for breach of the Privacy Act.

The Court found that the Authority's failure to disclose its intention to retain the blood samples after testing did not vitiate the legal guardians' consent to the initial collection of blood samples.  This finding was made based upon the law relating to failure to make disclosure of an incident to a medical procedure which would vitiate consent to such medical procedure.  Applying the modified objective test, the Court found that any reasonable person in the position of the infants' legal guardians would have consented to the collection and initial testing of the blood samples, even if they had been informed of the Authority's intention to store the samples in accordance with its policy.  The Court dismissed the argument relying upon Norberg v. Wynrib that consent can be vitiated if there is anything in the relationship between the parties that amounted to a power imbalance sufficient to conclude exploitation of the plaintiff by the defendant, given that in this case there is no fiduciary relationship between the Authority and the infant plaintiffs with respect to the collection of blood samples.

In considering whether the retention of blood samples after testing raises a genuine issue for trial, the Court noted that it is well settled law that any consent to the taking of a sample of bodily fluids by medical practitioners must be presumed to be consent only for the use of that sample for medical purposes.  The Court found that a reasonable person in the objective position of the plaintiffs would have consented to the storage of the blood samples if they had been informed that access to the blood samples would be clinically useful to that patient for a period of time.  A patient that has a particular concern about a medical procedure should bring that concern to the attention of the medical practitioner so that the concern can be addressed.

While the Court found that there were no triable issues with respect to the tortious and other unlawful conduct allegations, including the claim for Charter damages, the Court recognized that there could be  triable issues with respect to the use that the Authority may appropriately make of the blood samples after the initial testing, apart from their use for medical purposes directly related to the health of the infant, and whether the Authority assumed fiduciary obligations when it obtained the samples and breached that duty.

]]>The Empowered Patient Conferencehttp://www.branchmacmaster.com/health-blog/2009/11/4/the-empowered-patient-conference.htmlSusan Precious2009-11-05T00:29:56Z
The Empowered Patient Conference will be taking place Saturday November 7, 2009 in Nanaimo, BC. 
It promises to be an exciting lineup of topics and speakers who will be addressing various issues of patient safety.  It is relevant for patients, health care workers and the general public.
Branch MacMaster lawyer, Susan Precious, will be speaking on disclosure of adverse medical events.
Check out registration details, the conference agenda and lineup at: http://www.theempoweredpatientconference.com/
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