Hospital Liability in the Failure to Disclose Adverse Events

An adverse event is an unexpected problem with your hospital care or services caused by the mistakes of healthcare providers or weaknesses in the system. Disclosure of these problems to patients and the public is necessary to understand the issues and prevent them from happening again.

In 2005, Nova Scotia Health approved the Disclosure of Adverse Events Policy as a fundamental part of maintaining safe health care. The policy was intended to provide necessary safety information and to create a supportive environment for disclosure. Nova Scotia Health recognized that the policy went against a culture that perhaps did not currently foster disclosure and that full integration of the policy would take additional time.

Ten years later, in 2015, Tom Blackwell of the National Post wrote “Inside Canada’s secret world of medical error: ‘There is a lot of lying, there’s a lot of cover-up’”. His news article details how most instances of adverse events are not reported by the medical community, in stark contrast to other areas of public concern, such as the aviation industry, which provide a “transparent exchange of safety information”. A conservative estimate of one in 13 patients experiences an adverse medical event, typically as a “result of a complex interplay of factors, often involving underlying flaws in the system”.

In April 2015, Healthcare Insurance Reciprocal of Canada released a Risk Resource Guide for Critical Incidents and Multi-patient Events. The guide provides practical guidance for policy implementation and concludes: “Critical incidents occur too frequently in healthcare. If handled well, they provide an opportunity for great organizational learning; if handled poorly, they can lead to further suffering for the patients, families and staff involved, the growth of fear, and more failures in the future” (page 41).

Nova Scotia Health and Wellness recently implemented a new disclosure policy, the Serious Reportable Event Interim Reporting Policy, which requires the Nova Scotia Health Authority and the IWK Health Centre to report serious adverse events, as of January 2014. However, these reports are only for events that lead to a serious disability or death. They do not include other adverse events or “near misses”.

Hospitals have a duty to establish and enforce policies that are necessary for patient safety (Comeau v Saint John Regional Hospital, 2001 NBCA 113 at paras 56-58). A hospital which fails to take reasonable steps in this regard may be found negligent.

Systemic problems may involve large groups of people. While the harm to each individual may not be catastrophic, class action lawsuits facilitate compensation for less severe harms and may encourage hospitals to take responsibility and promote a culture of disclosure that will benefit everyone.

If you believe that you have received improper or negligent medical treatment, contact of the members of the Patterson Law Personal Injury Team for advice. Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.