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 court affirmed that a hospital has a duty to establish appropriate systems and protocols to promote patient safety and provide good patient care and that a policy is one method of achieving this it relied on precedent to rule that a departure from a policy is not prima facie evidence of negligence. The reasoning behind this rule is that hospital policies are to be considered guidelines that do not set inflexible rules and are subject to the exercise of discretion, by both doctors and nurses, depending on the needs of the patient. Medical professionals must be allowed to exercise competent and prudent judgment and not to have their hands bound by rigid policies.
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 expression of this second consideration by the court is somewhat troubling as it was not necessary to the disposition of the case particularly in light of the Court of Appeal’s direction in an earlier case that the issue of causation is to be determined by the trial court first in cases of medical negligence. One of the functions of tort law is to stimulate safer practices and to excuse compliance with a higher standard as expressed by the hospital itself fails to promote that objective. Although a comparative study of practices at different institutions is an important element in establishing the standard of care the result of the comparison should not be the preponderant factor without a consideration of the context in which the higher standard arose. Contextual factors to be considered should include the promotion by the institution to the public of the existence of a higher quality of care and expertise provided by it, the perception and reliance by patients on this image, the recruitment and staffing of better qualified and better paid staff by the institution, the development of special expertise and whether there was any practical impediment to compliance with the higher standard (this last point was considered by the court) An examination of that context may lead to the conclusion that the higher standard should be imposed.
The full text of the decision can be found at http://www.canlii.org/en/on/onsc/doc/2007/2007canlii34/2007canlii34.html.