In the decision Latin v. Hospital for Sick Children, 2007 CanLII 34 (ON S.C.) released January 3 2007 the Ontario Superior Court of Justice reviewed the issue of what weight is to be given to hospital policies and any failure to adhere to them in assessing whether hospital staff is negligent.

In this case the plaintiffs placed great emphasis on a triage nurse's departure from the hospital policy  which provided a pre-printed space on the triage form for the nurse to record vital signs. The plaintiffs took the position that the triage nurse fell below the standard of care in failing to obtain a full set of vital signs. The defence presented testimony  that this hospital's policy exceeded the triage standard at that time as the triage nurse was expected to obtain only relevant vital signs based on her nursing judgment.

While the breach of a hospital policy does not amount to prima facie negligence, the policy is  nonetheless a factor to be considered in determining what is the requisite standard of care and whether there has been a failure to meet it. The hospital policy should be examined to see if it sets up a useful standard of reasonable care and a departure from a policy must be viewed in light of what was reasonable and prudent conduct in the circumstances.

In this particular case the court was influenced by 2 factors in coming to a decision. The first was the purpose of triage which is not to arrive at a diagnosis through a comprehensive assessment but is an aid to determine how sick is the patient and in what priority should the patient be seen. To a large extent this is a matter of judgment.

Secondly the court felt it was also important to consider the policies and procedures that were in place at comparable institutions at the relevant time. The court concluded that nurses ought not to be held to a higher standard of care simply because their employer developed more comprehensive written triage policy guidelines as it was concerned to hold otherwise would have the invidious effect of discouraging hospitals from developing written policies that set high standards and result in different standards of care at comparable hospitals.

The full text of the decision can be found at http://www.canlii.org/on/cas/onsc/2007/2007onsc10010.html.

On August 8 2006 Mr. Justice Browne of the Ontario Superior Court of Justice issued a decision with wide reaching implications for policy makers and researchers in the health care field. The relevant facts are:

The plaintiff was diagnosed with having Acute Lymphoblastic Leukemia when she was a young child.  In February 1995, the plaintiff was entered into a study referred to as protocol 9405 being a study of the Pediatric Oncology Group (“POG”).  It was alleged that she received chemotherapy treatment, which included the drug Methotrexate at a higher dosage than for all patients having a standard treatment or being treated at a lower dosage under a prior protocol and that as a result she sustained brain damage. An issue of informed consent arose as it was alleged that there was no information given by way of the consent form or otherwise as to the relative risk between treatment under this protocol, the prior protocol or standard treatment.  There was no issue that the drug dosage would increase toxicity. The pleadings allege that the chair of the POG group who was not involved in the care of the plaintiff was responsible for the POG treatment protocol 9405 and that she was negligent in failing to manage and supervise the development of the protocol; in failing to provide the research institution, the hospital, with adequate consent forms for the purpose of obtaining an informed consent to treatment, in failing to warn of all risks reasonably anticipated, specifically dealing with toxicity and brain damage and specifically, the increased likelihood of toxicity by a failure to warn of the relative increase in risk between the protocol use of Methotrexate and other treatments even using the same drug.  It was also pled that the chair of the POG was vicariously liable and that she had breached a contractual and a fiduciary obligation.

The court refused to strike the claim brought against the chair of the POG thereby allowing the issues to go to trial to be decided on a full evidentiary record. The ruling is significant as the court rejected arguments that the fact that the chair as a researcher and administrator not in a relationship of direct treatment and/or research vis a vis the particular patient was protected from liability. Indeed the court concluded that the bright light of day would be beneficial in an overall policy sense to researchers and the public generally in finding that the claim disclosed a recognised and reasonable cause of action. The full text of the decision may be found at http://www.canlii.org/on/cas/onsc/2006/2006onsc15875.html.