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Wait-time benchmarks – Medico-legal considerations
An article for physicians by physicians
Originally published March 2007
IL0710-1-E

Of interest to all physicians

In September 2004, Canada’s first ministers committed to develop benchmarks for “medically acceptable” wait times in five clinical areas: cancer, cardiac care, diagnostic imaging, joint replacement and vision restoration. A Wait Time Alliance (WTA) involving several stakeholder groups was facilitated by the Canadian Medical Association to respond to the challenge of developing medically acceptable wait times. The final report of the WTA in August 2005 emphasized that wait-time benchmarks were to be considered “health system performance goals” and included the following statement:

“They are not intended to be standards nor should they be interpreted as a line beyond which a health care provider or funder has acted without due diligence.”

Despite this distinction, such goals do, for the first time in Canada, provide a benchmark against which performance may be assessed. This may be significant from a medico-legal standpoint, particularly if an adverse event is considered to have occurred when an actual wait time exceeded the performance goal. In any subsequent legal action, how the courts will respond when an actual wait time exceeds these goals remains to be determined.

Suggestions

As a result, the CMPA provides the following suggestions to physicians whose wait times may be exceeding the benchmarks recommended by the WTA, governments or other authorities.

First, it is important to recognize that the courts, in consideration of the specific facts of the case, may determine the physician owes a duty of care from the moment his/her office accepts a referral, irrespective of whether the patient has been seen by the physician.

Second, again depending on the facts of the case, it may be argued that the referring physician continues to have a duty of care beyond the simple act of referral which may include continued follow-up, monitoring and advocacy for the patient.

The following are some medico-legal considerations for physicians related to wait-time benchmarks:

For the referring physician:

1. Are you aware of the date of the scheduled appointment provided by the consultant and is the timing a cause for significant clinical concern?

2. Have you considered what ongoing care might be appropriate for your patient while awaiting the appointment?

3. Has your patient been informed about the signs or symptoms for which he/she should seek additional medical care during the wait time?

4. Have there been any changes in the clinical condition of your patient that need to be communicated to the consultant?

Should the clinical condition of your patient necessitate an earlier appointment or should the scheduled appointment exceed the benchmark, attempt to negotiate an earlier appointment. If this is not possible consider referring the patient elsewhere.

Document your clinical assessment and any attempts to arrange an earlier appointment.

For the consultant:

1. Do you notify the referring physicians of the scheduled appointment dates?

2. If, at the time of the referral, you know your wait times exceed the recommended benchmarks, consider:
a) Declining the new consult and recommending referral elsewhere, and
b) Notifying the appropriate institution that your wait times are beyond the stated performance goals and that it is necessary to refer patients elsewhere.

3. Should the wait times begin to exceed the recommended benchmark for patients already assessed and on your list, consider:
a) Informing the patients and discussing the potential adverse consequences of waiting, if any;
b) Discussing alternative treatment options, if available; and
c) Offering possible referral elsewhere.

Be aware of any legislation and/or institutional requirements with respect to the management of wait times.

Document your actions in all of the above.

Medico-legal implications?

Whether the establishment of performance goals and the monitoring of wait times will have medico-legal implications remains uncertain. You are encouraged to call the CMPA should you have questions or concerns about medico-legal implications of wait-time programs.