PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Law and Claims What’s New and Industry Trends Mike Boyce, VP Claims Gord Slemko, General Counsel

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Overview 1.Recent Cases 2.Recent Trends a)Breach of Privacy Claims b)Spoliation c)Subrogation d)Property Losses 3.Future Trends? 4.Role of subscribers

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Recent Court Decisions 3 Boyd v. Edington, 2014 ONSC 1130  ED Physician found liable for failing to diagnose patient’s stroke  $15 million total award at trial  Court very critical of defence experts:  “The evidence of the defence witnesses on the subject of Ms. Boyd’s alcohol consumption leads me to conclude that…they crossed the line from objectivity to advocacy”  “I further find that the defence experts exhibited partiality and advocacy in their evidence…”

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Recent Court Decisions 4 Moore v. Getahun, 2014 ONSC 237  Orthopedic surgeon found to be negligent in applying closed circumferential cast to the plaintiff’s fractured wrist  Court critical of discussion between defence counsel and an expert prior to the finalization of a draft report: “…I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.”

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Recent Trends (a) Breach of Privacy Claims - Snoopers Jones v. Tsige 2012 ONCA 32  Bank employee accessed colleague’s bank records more than 174 times over 4 years  Court recognized a new tort – intrusion on seclusion  “One who intentionally intrude, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person”  Court awarded damages of $10,000

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Recent Trends (a) Breach of Privacy Claims – Class Actions Rowlands v. Durham Region Health 2012 ONSC 3948  Court certified a $40 million class action after a public health nurse lost a USB key containing personal and confidential health information of 83,524 patients who received H1N1 flu vaccinations  Court approved a settlement whereby each class member would be compensated for demonstrable economic harm as determined by an adjudicator and class counsel were awarded $500,000 for costs & disbursements

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Recent Trends (a)Preventing & Dealing with a Privacy Breach  Educate staff about privacy rules re use & disclosure of personal health information (“PHI”)  Safeguard PHI when it is removed from the facility (laptops should be password protected and data should be encrypted)  Ensure a baseline of logging & auditing is in place on all systems & that staff are aware regular audits will occur  Promptly report potential claims to HIROC so counsel can assist with management of privacy breach

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Recent Trends (b) Spoliation  Definition: intentional destruction of relevant evidence when litigation is existing or pending  Rule of evidence or intentional tort?  So far no judicial ruling in Canada awarding a remedy for the tort of spoliation  However, claim for spoliation of evidence frequently advanced concurrently with other claims  To avoid claims of spoliation ensure evidence is preserved (fetal monitoring strips, security camera footage)

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Recent Trends (c) Subrogation in Healthcare Insurance  Independent Practitioners  Agency Nurses  Transfers of Care  OHIP

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Recent Trends (d) Property Losses  Polar Vortices  Floods  Windstorms  Subrogation Issues

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM Future Trends 11 The Insurance Industry  Cyber Risk – The New Y2K?  Class Actions – Canadian trends  Clinical Trials – Risks everywhere!  Vicarious Liabilities  Volunteers, Employees, Independent Practitioners, Patients….

PARTNERING TO CREATE THE SAFEST HEALTHCARE SYSTEM The Role of our Subscribers 12  Securing and Preserving Information  Providing Employees During the Legal Process  Obligations  At Discoveries  At Mediation  Consent to Settlement

Questions?

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