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You have medico-legal questions on deferring care during the pandemic—The CMPA has answers

Empty gurney in a hospital hallway

Published: March 2021
The information in this article was correct at the time of publishing
21-02-E

When the COVID-19 pandemic first reached Canada in 2020, CMPA members increasingly turned to the Association with medico-legal questions about the implications of deferring patient care. In fact, during the pandemic, deferred care has been among the topics members have raised most often when calling the CMPA.1

Most members’ questions have been about the implications of postponing diagnostic care and surgeries. What follows is a sample of members’ questions and the CMPA’s responses.



Many of my patients’ investigations, treatments, or elective surgeries have been delayed or cancelled due to COVID-19 restrictions. How can I reduce my medico-legal risks related to these delays?

Manage your risks by doing your best in the current circumstances to meet your continuing responsibilities for the care and appropriate follow-up of patients.

This may include:

  • consulting with colleagues, hospitals, public health, and specialty organizations for guidance to determine what services and care are reasonable to delay or cancel
  • monitoring and managing patients’ conditions while awaiting care
  • reassessing patients regularly to determine if the urgency of the investigation, procedure, or surgery has changed
  • informing patients and referring physicians of the signs and symptoms that should warrant a call to your office to re-evaluate their rank on your wait list
  • informing and updating consulting physicians when a patient’s condition changes and the need for care becomes more urgent
  • exploring other available options for patients to receive interim care, if necessary
  • advocating for patients with professionalism, integrity, and transparency, (for more information, see the CMPA publication, “The physician voice: Tips for effective advocacy [PDF]”)

Document your care plan and follow-up actions in the patient record, as well as any advocacy efforts you took on behalf of the patient.


More on COVID-19 at CMPA: Practically Speaking Podcast

Interested in learning more on how to manage patient care and decrease medico-legal risk during the COVID-19 pandemic? Tune into pandemic-related episodes of the Association’s podcast, CMPA: Practically Speaking, with Drs. Steven Bellemare and Yolanda Madarnas. COVID-19: Managing Wait Times features Dr. Wendy Levinson, Chair of Choosing Wisely Canada, and provides helpful tips on managing resources. COVID-19: Reasonable Care helps make sense of the unusual demands now placed on physicians. You’ll find the podcast on the CMPA website, and on Apple Podcasts and Spotify.



What medico-legal consequences could I face as a result of delays in diagnosing or treating patients due to COVID-19 restrictions?

Restrictions imposed because of the pandemic may have affected the types and level of care you can provide. As a result, you may be concerned about medico-legal consequences (e.g. legal actions and complaints) if you cannot provide the level of care you consider appropriate and a patient is harmed.

In civil legal actions in general, a court’s assessment of a physician’s clinical care is not based on a standard of perfection, but rather on a standard of reasonability, i.e. the care that would reasonably be expected of a colleague of similar skill and experience, in similar circumstances. In short, courts expect physicians, within resource constraints, to do the best they can for patients and to act reasonably under the circumstances.

In legal actions specifically concerning care provided during the pandemic, the courts will consider the context. That would include considering the effect scarce resources would have on care, and the effect of any policies, guidelines, public health orders, directives, and regulations put in place by medical regulatory authorities (Colleges), medical specialty organizations, governments, and hospitals or health authorities, including directives on the suspension and resumption of services.

In complaints, medical regulatory authorities and hospitals will also take the context of the patient interaction into consideration. As an example, care provided during the pandemic will be affected by varying levels of restrictions. CMPA members are encouraged to call the Association and speak with a physician advisor for guidance before responding to such a complaint.



Would it be appropriate to defer accepting a new referral?

Continue to use your professional judgment to make decisions on whether or not to accept a new referral during and in the period following the pandemic. You must determine if you can provide care for a new patient while continuing to provide appropriate and timely care for current patients. To help you make the decision, keep in mind your obligations for accepting new patients, the possibility of using virtual care, and the need to effectively communicate with referring physicians and patients.

Your acceptance of new patients should be guided by ethical responsibilities and College policies. For more information, see the CMPA article, “Accepting new patients: Guidance for specialists.”



How do I communicate with patients who are unhappy, upset, or abusive about the deferral of their investigation, treatment, or surgery?

Patients whose investigations, treatments, or surgeries are deferred may be stressed, fearful, and angry. They may express these emotions as dissatisfaction with your care. When speaking with patients, remember to convey empathy. Try to remain calm and clearly explain the reason for the delay. Ask them about their specific concerns. Listen actively and convey understanding and empathy for the situation. Explore their concerns to ensure they have accurate information, for example, about the progression of their health condition, the impact of the delay, and the potential for other options. It might be helpful to establish a plan to monitor and manage their condition in the interim. As always, document your discussions with patients.

Despite your best efforts, dissatisfaction may escalate. For information on resolving conflict, see the CMPA article, “Difficult patient encounters: What you can do to prevent, manage, and de-escalate.”



Can I defer patient care if I am required to self-isolate?

If you must self-isolate because of exposure to COVID-19 or because of a positive screening test, the Colleges generally expect you to take reasonable steps to ensure patients still receive appropriate care. These steps might include relying on virtual care where possible, coordinating with colleagues to help provide coverage (virtually or in person), re-directing patients appropriately, and supporting patients as much as possible to access the care you are not able to provide.


More medico-legal information

Do you have medico-legal questions about your practice in the midst of the pandemic? Visit the CMPA COVID-19 Hub or contact us using the secure member portal (member login required) or by phone at 1-800-267-6522 (in Ottawa area: 613-725-2000).


Reference

  1. The CMPA analyzed calls from members looking for medico-legal advice between March and September 2020. During these calls, the pandemic-related topics most frequently discussed by members were telemedicine, COVID-19 tests, personal protective equipment, deferring care, self-isolation, long-term care facilities, dealing with patients who refuse to wear a mask, and reopening of healthcare services.

DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.