January 1, 2010
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Primum non nocere or "first, do no harm" is an essential maxim and underlying goal of modern medicine. For the health care practitioner, it is a reminder that even the best intentioned conduct can result in injury to the patient and the effectiveness of the maxim is measured by studying "adverse events" in hospitals and other health care settings.

According to a 2004 Canadian study, an adverse event in the medical context is described as an "unintended injury or complication that is caused by health care management rather than by a patient's underlying disease that leads to death, disability at the time of discharge or prolonged hospital stays."

In that same study, it was found that of the almost 2.5 million annual acute care hospital admissions in Canada, 185,000 were associated with an adverse event. Of those, nearly 70,000 were considered potentially preventable. That is, between 7 per cent and 50 per cent of adverse events in a hospital context were considered potentially preventable. In view of these kinds of statistics, it follows that hospital administrators, physicians, nurses and others who work in a health care setting are just as vulnerable to making errors as any one else might be and yet there remains a persistent, almost unshakeable belief by the public that doctors and nurses are infallible. That belief, in turn, often causes a patient to become overly deferential and dependent on their health care practitioner.

Unfortunately, when errors are made in medical treatment, whether through negligent conduct or not, the patient who placed such blind faith in their health care practitioner is left feeling frustrated, angry and bitter. More frequently still, the patient is left to wonder where or how things went wrong with little explanation forthcoming from the practitioner who may, as a consequence of our litigious society, have withdrawn from any further communications with the patient. Needless to say, silence spurs a further decline in the patient's emotional state, leading to a call to a lawyer's office where the patient must then engage in a costly and time-consuming exercise of looking for answers using a system that was never intended to do much more than provide compensation for actionable injuries.

Despite this rather bleak picture, it has been my experience that many of the situations presented to me by prospective clients following some kind of adverse event in a medical setting could have been avoided had the patient taken a more proactive approach to their own medical treatment.

In this article, I hope to impress upon you a belief that while you, as the patient, have rights that must be protected by those in our medical profession, you also have a responsibility to yourself and your loved ones to be more involved in your treatment and to check your inherit deference at the door when it comes to your medical care.

At the outset, it is important to rethink a number of common assumptions that are made about the field of medicine. First, while there have been a host of technological advancements over the last 30 years, medicine is still as much an art as a science. In fact, despite the availability of sophisticated diagnostic tools such as MRI machines and the like, a doctor must still formulate their basic medical diagnosis through a process of elimination and reasonable guesswork. A patient who fails to describe key factors affecting their health may run a serious risk that their condition will be misinterpreted and misdiagnosed.

Second, medicine has been and remains a collaborative field in which many individuals will become responsible for a patient's care. Often, it is the patient who is best able to pass along valuable information gleaned from one member of their health care team to another. Too often I learn that my clients have sat silent about their situation, believing that one doctor had already relayed key pieces of information to the next doctor only to discover later that they hadn't.

Third, doctors and nurses are not walking encyclopedias' of medicine. While it might be tempting in the information age we live in to assume that your physician has all the answers at their fingertips, that kind of assumption is at once unfair to your physician and dangerous to your health. Rather, you should take some responsibility for investigating your conditions and complaints in tandem with your medical team and to present your findings for their consideration as appropriate. While you may not always understand the substance of your research, discussing your findings with your doctor can only enhance the dialogue between you and will most certainly improve the quality of your care.

Finally, there is the simple assumption that patient safety rests solely with the medical profession. For instance, in 2007, the Royal College of Physicians and Surgeons described patient safety as the "reduction and mitigation of unsafe acts within the health-care system as well as through the use of best practices shown to lead to optimal patient outcomes." The emphasis in this definition, of course, is clearly a doctor-focused approach, in which the doctors and hospitals adopt "best practices" for the benefit of patients. While it is certainly desirable to insist that our health care professionals adopt a set of best practices to ensure optimal outcomes, as a patient you should also adopt that same mindset when interacting with a health care professional. Doing so requires three simple steps.

First, you should ask plenty of questions of those who are involved with your health care. In the same manner a physician makes enquiries of you about your health history, you should be asking questions of them about their diagnosis, the risks associated with their proposed solutions, their credentials and experience at implementing their proposed solution, and any other question that impacts on the decision you will have to make.

While this article does not allow for a detailed explanation of the law of informed consent, it is important to recall that a physician can not take any action on your behalf unless and until you provide them with your consent to do so. That consent ought to be premised on a solid understanding of the risks and consequences to you of something going wrong. And let's be clear, there is always a risk of something going wrong even with the best medical care in the world. The choice you must make is to balance the possible risk against the chance of a positive outcome. Unfortunately, many of my patients come to learn too late that the poor outcome they have suffered were known and accepted risks of the kind of medical intervention they underwent. Had the client asked more questions of their doctor, they would have understood better the choice they were making.

While asking questions is certainly a necessity, taking notes of the answers is also critical. In the same manner that doctors and nurses keep a record of their conversations with you, you ought to be making a record of your conversations and interactions with them. Not only does writing it down offer evidence of the information you were provided at the relevant time, it also allows you to relay that information accurately and clearly to other members of your health care team.

Finally, being proactive also requires you to seek out second opinions when the advice you have received seems implausible, unreliable or questionable. As with all professions, there are great doctors and bad ones, and the advice you receive should never be taken on faith. As a patient you have a right to insist on a second opinion and to test the opinions you have been offered against the body of knowledge readily available to you over the Internet. Only after you have tested the opinion against that body of knowledge should you grant your consent to treatment. It should be apparent from the foregoing list that the cornerstone of any best practice should be communication and dialogue with the members of your health care team.

If after all of your proactive efforts you should still be one of the 70,000 people who experience an adverse event while admitted at the hospital, don't lapse into anger or despair. Instead, move quickly to address your concerns. First, you can file a complaint with the hospital administration and ask that their ombudsman investigate your complaint in a timely manner. You might also consider filing a complaint with the College of Physicians and Surgeons, a regulatory body that is responsible for regulating standards in Ontario and for investigating patient complaints. While the College does not have the authority to award damages or expenses, the College can reprimand doctors who fail to fulfill their professional obligations.

Finally, you might consider retaining a lawyer to assist you by way of a medical malpractice suit. While any lawyer can conceivably provide you with reasonably sound advice on your available options, it is best to consult a lawyer who specializes in the malpractice field as prosecuting a medical claim requires experience, diligence and determination.

Fortunately, if you have followed the best practices outlined above, you will have a written record from which the lawyer can begin to investigate your claim and remedy your wrong.

[This article was originally published in the January/February 2010 issue of Fifty-Five Plus Magazine. Author: Joseph Griffiths]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Personal Injury