Glossary

A

Accident

An unexpected occurrence, happening by chance, not as a result of negligence or misconduct. In Québec law, an "accident" means "an action or situation where a risk event occurs which has or could have consequences for the state of health or welfare of the user, a personnel member, a professional involved or a third person." (Act respecting Health Services and Social Services)

Accountable

To be professionally responsible or answerable.

Adverse event

An event which results in unintended harm to the patient, and is related to the care and/or services provided to the patient rather than to the patient's underlying medical condition. (Canadian Patient Safety Institute (CPSI) definition)

Adverse outcome

Describes consequences or injury suffered by a patient most often related to the disease process but sometimes caused by an adverse event. Those adverse outcomes related to the disease process are an inevitable part of clinical practice even with the best of care. An adverse outcome usually does not imply negligence or, in Québec, faute professionnelle.

Affidavit of documents

(see Lawsuit, stages of)

Age of majority

Is a legal term reflecting the age at which one can manage his or her own affairs. The age of majority is determined by provincial/territorial statutes. In British Columbia, Newfoundland and Labrador, Nova Scotia, and territories it is 19 and in the remaining provinces it is 18.

Application for psychiatric assessment

Although the name and the legal process vary somewhat, most provinces and territories have an application process to admit a patient involuntarily in a psychiatric facility for further mental health assessment where the physician has reasonable cause to believe that the patient is suffering from a mental disorder and is likely to cause serious harm to him/herself or others, or is likely to suffer substantial mental or physical deterioration, and the person is not suitable for admission as an informal or voluntary patient.
In Québec, a physician may place a person under preventive confinement prior to a court order for a psychiatric examination, where the physician is of the opinion that the mental status of the person presents grave and immediate danger to him or herself or to others.

Physicians should consult their provincial/territorial legislation for details or contact the CMPA for advice.

Apology

A genuine expression of sympathy or regret, a statement that one is sorry for what has happened. An apology includes an acknowledgement of responsibility if such responsibility has been determined after the analysis of the adverse event.

Appeal

(See Lawsuit, stages of)

Arbitration

A dispute resolution method (used primarily in commercial and labour relation disputes) which refers issues for determination to an impartial third person agreed to by the opposing parties.

Assault and battery

Battery is the intentional touching of another person without consent. Assault is an act which causes another person to reasonably fear they will suffer battery.
The Supreme Court of Canada has restricted medical-legal claims of assault and battery to certain non-emergency situations. An example of such a situation is when a physician has carried out surgery or treatment on the plaintiff without consent, or has gone well beyond or has departed from the procedure for which consent was given.

Autonomy (patient)

The right of patients to make decisions about their personal health.

B

Battery

Battery is a tort in common law.

The Supreme Court of Canada has restricted such claims to non-emergency situations where the physician has carried out surgery or treatment on the plaintiff without consent, or has gone well beyond or departed from the procedure for which consent was given. Assault and battery may also be committed where fraud or misrepresentation is used to obtain consent.

These claims are typically restricted to errors where the wrong operation was performed on a patient or an operation was performed on the wrong patient.

In Québec law and in the context of informed consent, violation à lintégrité de la personne would generally align with the common law tort of battery.

Breach of contract

An allegation the doctor has breached an expressed or implied term of the agreement arising out of the doctor/patient relationship, usually an allegation of the physician having failed to achieve the result "guaranteed" or of the physician having disclosed confidential information about the patient without obtaining consent or being authorized in law.

C

Capacity, mental (competence)

The facility or ability of an individual to understand the nature and consequences of his or her decisions. (See Consent to investigation and treatment)

Causation

The act of causing something to happen (producing an effect). In law, to prove causation, the plaintiff must establish there is a relationship, or causal connection, between the alleged breach of duty (or faute professionnelle in Québec) and the stated harm or injury.

Child protection authorities

The agencies in each province or territory charged with the protection and welfare of children, having the ability to intervene to protect children from harm.

Circle of care

The group of healthcare professionals providing care to a patient who need to know the patient's personal health information to provide that care.

Civil legal action

In medical-legal (civil) cases, the goal is to obtain monetary compensation for harm or injury suffered. Almost all Canadian medical-legal cases are civil and not criminal actions. Several different defendants, such as individual health professionals, hospitals/institutions, equipment manufacturers and pharmaceutical companies, may be named in a medical lawsuit. The cause of the action or central focus is usually an allegation of provider negligence, but allegations of lack of informed consent, assault and battery, breach of contract or breach of fiduciary duty are also possible causes. In civil actions, the plaintiff(s) is/are usually awarded monetary compensation if the cause of the action is admitted by the defendant(s) or proven in law. In the courts, these disputes are decided on the balance of probability. (See Damages; Lawsuit, stages of)

Class action lawsuit

A lawsuit brought by one or more persons on behalf of a larger group or class with a similar interest or common right in a particular issue. It allows a representative plaintiff to claim against one or more defendants for damages suffered by many persons. Before a class action can proceed, a "class" or "classes" of plaintiffs must be clearly defined. The court must then certify the proceeding as a class proceeding. Generally, if the representative plaintiff is successful, monetary compensation will be awarded to all members of the class.

Cognitive bias

A way of thinking that influences reasoning and decision making, sometimes resulting in inaccurate judgments.

Close call

An event with the potential for harm that did not result in harm because it did not reach the patient due to timely intervention or good fortune (sometimes called a near miss).(Canadian Patient Safety Institute (CPSI) definition)

College (regulatory authority) complaint

The health professional colleges of each of the provinces or territories are the self-regulating bodies for that province's or territory's health professionals. Each college must investigate complaints from members of the public or others about health professionals who are members of the college. (See Regulatory authority, professional)

Compensation

Money received as a redress for loss or injury.

Compensation for future loss of earnings

A type of damages to compensate for the predicted loss of future earnings by the patient had it not been for the harm that is the basis of the lawsuit. (See Damages)

Competency, mental

(See Capacity, mental)

Compliance

In the medical sense, the adherence of the patient to the investigative or treatment plan.

Conflict of interest

A circumstance in which an individual has competing interests or professional, financial or personal obligations or benefits that might prevent the individual from performing duties or making decisions that are fair and without bias.

Consent to release of information

Generally, communications between a patient and a health professional are confidential and must be protected. The patient must agree to the release of information to a third party, although there are some important exceptions related to mandatory reporting of certain health conditions and situations and to other legislative requirements.

Consent to investigation and treatment

Consent to treatment may be implied or it may be specifically expressed either orally or in writing. Consent in emergency situations is an important exception to the general rule that consent must always be obtained. Treatments under emergency circumstances must be limited to situations with demonstrable severe suffering, or an imminent threat to life, limb or health.

Implied consent - Much of a health professional's work is done on the basis of consent which is implied either by the words or the behaviour of the patient or by the circumstances under which treatment is given. For example, it is common for a patient to arrange an appointment with a physician, to keep the appointment, to volunteer a history, to answer questions relating to the history and to submit without objection to physical examination. In these circumstances consent for the examination is clearly implied. To avoid misunderstanding, however, it may be prudent to state to the patient an intention to examine the breasts, genitals or rectum.

The foregoing notwithstanding, in many situations the extent to which consent was implied may later become a matter of disagreement. Health professionals should be reasonably confident the actions of the patient imply permission for the examinations, investigations and treatments proposed. When there is doubt, it is preferable the consent be expressed, either orally or in writing.

Express consent (also expressed consent) may be in oral or written form. It should be obtained when the treatment is likely to be more than mildly painful, when it carries appreciable risk, or when it will result in ablation of a bodily function.

Although orally expressed consent may be acceptable in many circumstances, frequently there is need for written confirmation. As health professionals have often observed, patients can change their minds or may not recall what they authorized; after the procedure or treatment has been carried out, they may attempt to take the position it had not been agreed to or was not acceptable or justified. Consent may be confirmed and validated by means of a suitable contemporaneous notation by the treating physician in the patient's record.

Expressed consent in written form should be obtained for surgical operations and invasive investigative procedures. It is prudent to obtain written consent also whenever analgesic, narcotic or anaesthetic agents will significantly affect the patient's level of consciousness during the treatment.

Informed consent means the provision of information about the nature, consequences, material and special risks of the proposed investigation or therapy and any alternative procedures a reasonable person would likely want to know in determining whether or not to agree to proceed. The adequacy of consent explanations is judged by the "reasonable patient" standard, what a reasonable patient in that particular patient's position would have expected to hear before consenting. This would include a discussion of common and serious risks. As well, the disclosure of accepted alternative treatments should include that of no treatment, and their risk, and any material or special circumstances (e.g. existing medical conditions) that would increase the risk of a certain course of action for that particular patient.

Consent, age of

The legal age of majority has become progressively irrelevant in determining when a young person may consent to his or her medical treatment. As a result of consideration and recommendations by law reform groups as well as the evolution of the law on consent, the concept of maturity has replaced chronological age. The determinant of capacity in a minor has become the extent to which the young person's physical, mental, and emotional development will allow for a full appreciation of the nature and consequences of the proposed treatment, including the refusal of such treatments.

Legislation in a number of provinces and the territories has codified the law on consent, including the reliance on maturity in assessing a young person's capacity to consent to or refuse medical treatment. Only the province of Québec has established a fixed age of 14 years, below which the consent of the parent or guardian or of the court is necessary for the purposes of proposed treatment.

Generally, where the minor patient lacks the necessary capacity, the parents or guardian are authorized to consent to treatment on the minors behalf. In doing so, the parents or guardian must be guided by what is in the best interests of the minor. This consideration becomes all the more important when the parents or guardian seeks to refuse treatment the doctor regards as medically necessary. In these circumstances, there is an obligation on the part of doctors to report the matter to child protection authorities. (See Capacity, mental)

Consent, voluntary

Patients must always be free to consent to or refuse treatment, and be free of duress or coercion.

Consultant, expert

(See Expert)

Contemporaneous

In medical-legal practice, a term referring to the timing of the documentation of notes. Contemporaneous records are made at the time of or as soon as practical after the actual patient encounter.

Contingency fee

A type of fee payment arrangement between the plaintiff and a lawyer made prior to starting a lawsuit. The plaintiff agrees to pay the lawyer a percentage of any award or settlement recovered.

Contribution and indemnity

A process by which one or more of the defendants attempt to recover from one or more of the other co-defendants a portion or all of the total damages awarded by the court.

Counsel

Lawyer. Attorney is an American term for lawyer.

Countersuit (cross-action or cross-demand in Québec)

A separate action, brought by the defendant after the initial action has been decided in his/her favour on the merits, alleging that the patient's action was instituted maliciously and without any reasonable basis whatsoever, thereby causing provable damages.

Court order

A formal written direction given by a judge or a member of the court.

Criminal legal action

An action or suit, which the objective is to secure conviction and punishment for a crime. In the courts, the charges must be proven beyond a reasonable doubt.

Cross-claim (third party claim or claim in warranty in Québec)

A process in which one defendant advances a claim against an existing co-defendant in the legal action with the allegation the other defendant is responsible in whole or in part for the claim asserted by the plaintiff. A successful cross-claim or action in warranty means the defendant is entitled to contribution or indemnity from the co-defendant if any damages are awarded. (See Lawsuit, stages of)

D

Damages

In law, money paid as compensation for loss or injury.

Damages, punitive or exemplary

Damages awarded to punish a defendant for malicious or reprehensible behaviour. Such awards are very infrequent in Canadian medical-legal cases.

Defamation, allegation of (Injury to reputation)

This claim is based upon a statement, written or oral, that tends to bring the plaintiff into "ridicule or contempt" or that causes the plaintiff to be "shunned, avoided or discredited."

Defendant

The person against whom a civil legal action is brought.

Defensible case

(See Negligence)

Discharge, informed

(See Negligence)

Disclosure

The process by which an adverse event is communicated to the patient by healthcare providers. (Canadian Patient Safety Institute (CPSI) definition)

Initial disclosure: The initial communications with the patient as soon as reasonably possible after an adverse event, focusing on the known facts and the provision of further clinical care.

Post-analysis disclosure: Subsequent communications with a patient about known facts related to (the harm and) the reasons for the harm after an appropriate analysis of the adverse event.

Discovery (Examinations for Discovery)

(See Lawsuit, stages of)

Duty of care

The doctor-patient relationship creates a series of obligations including the requirement, as appropriate, to attend, diagnose, advise, treat, and seek consultation.

Duty to report

Generally refers to mandatory legal or professional obligations for health professionals:

1. Legal obligations to notify government or other agencies of certain patient conditions and situations. These obligations override the legal and professional duty to keep patient information confidential. The suspicion of child abuse is an example.
2. Professional obligations to report to regulatory authorities (Colleges) certain professional issues related to other health professionals, including suspicions of prohibited behaviours.

The rules for reporting differ somewhat from province to province or territory. The reporting could be discretionary rather than compulsory.

E

Egregious act

An action that is conspicuously bad or offensive.

Entrustable professional activity (EPA)

A clinical task that a supervisor can delegate to a trainee once sufficient competence has been demonstrated.

Error - provider (medical) error

An act (plan, decision, choice, action or inaction) that, given the information available and the patient's clinical condition at the time, was done wrongly or performed incorrectly in those circumstances, and therefore resulted in an adverse event or near miss.

The use of the term "error" should generally be avoided, especially before all the facts are known, because it can inappropriately suggest there was blameworthy conduct on the part of the health care provider. The term may be misunderstood to mean the care provided was substandard or negligent in law. Errors may or may not be the result of negligence.

Error in judgment: A reasonable decision or choice, made carefully at the time, but in retrospect might not be considered by some as the best choice or decision. Physicians are not necessarily in breach of their duty toward a patient simply because they have committed an error of judgment after a careful examination and thoughtful analysis of a patient's condition. Errors in judgment may occur, for example, in diagnosing a condition or in choosing among different therapeutic approaches.

Examination for Discovery

(See Lawsuit, stages of)

Executive walk rounds

Regular visits to patient care units by senior management (e.g. a hospital's CEO, financial officers, leaders in nursing and medicine) to learn from providers about existing risks to patient safety.

Expert

A professional who is engaged to provide an opinion based on his/her special skill or knowledge in a particular area. An expert does not typically have personal knowledge of the facts in dispute. Rather, the expert's role is usually confined to opining on a defined issue. Physicians may be asked to give an opinion on the standard of care of the profession or the causal link between the alleged negligence and the injury for which damages are claimed. Health professionals performing independent medical examinations (IMEs), financial experts (accountants and actuaries), and statisticians may also be engaged as experts to provide an opinion on issues such as the degree of harm suffered by a patient and/or the expenses required for the patient's future care.

Some experts may be asked to testify about their opinion in court, regulatory proceedings, or hospital matters. It is not the role of an expert witness to act as an advocate for any party. Before acting as an expert, you should be satisfied that you have the specific expertise the matter requires and that you have no actual or potential conflict of interest.

Expert witnesses can be distinguished from fact witnesses. Although some treating physicians may also be qualified as experts, procedural rules in most jurisdictions place restrictions on a treating physician providing opinion evidence at trial. While treating physicians may be called upon to provide evidence of the care provided to the patient and the patient's prognosis, they are not generally asked to give opinion evidence on the applicable standard of care.

Event

A significant occurrence.

F

Failure mode effect analysis

As used in patient safety, the components of a system or steps in a process for the provision of clinical care are studied prior to the occurrence of adverse events (proactively) to determine the probability and impact of a failure in a component or step.

Fiduciary duty

Physician's fiduciary duty to a patient means acting in good faith and with loyalty toward the patient and never placing personal interests ahead of the patient's.

G

Good Samaritan protection

Common law or legislation which protects a person from civil liability for the provision of care for medical emergencies at their place of occurrence. An example would be a passer-by who voluntarily gives medical care (e.g., first aid) to an injured person. The passer-by is protected from litigation unless the assistance provided was considered gross negligence or serious fault.

H

Harm

An outcome that negatively affects the patient’s health and/or quality of life. 

Health literacy

The degree to which individuals have the capacity to obtain, process, and understand basic health information and services needed to make appropriate health decisions.

Reference: U.S. Department of Health and Human Services, National Library of Medicine, Current Bibliographies in Medicine: Health Literacy, edited by R.M. Parker, S.C. Ratzan, C.R. Selden, M. Zorn, (2000).

Healthcare team

A healthcare team consists of two or more healthcare providers working together to advance the care of their patient, each member having specific roles and responsibilities, performing interdependent tasks, and adapting to the patient's needs. It is helpful to include the patient as part of the team.

Hindsight bias

Knowing an undesirable outcome has occurred increases the belief that it was predictable, should have been foreseen and therefore was preventable.

Human factors

A discipline addressing human behaviour, abilities, limitations, and relationship to the work environment (physical, organizational, cultural), and applies it to the design and evaluation of safer and more effective tools, machines, systems, tasks, jobs, and environments.

I

Incident

In Québec, an incident means "an action or situation that does not have consequences for the state of health or the welfare of the user, a personnel member, a professional involved or a third person, but the outcome of which is unusual and could have had consequences under different circumstances." Act respecting Health Services and Social Services Act

In the rest of Canada, the term incident is used in the context of adverse event or near miss.

Incident report (or Accident report in Québec)

Form used in institutions, hospitals, or clinics by health care professionals to alert the administration of the occurrence of an adverse event or near miss. Such a report may not be a legally privileged document. (See Reporting of adverse event; Near miss)

Injury

Psychological or physical harm caused to an individual.

Interlocutory applications

(See Lawsuit, stages of)

J

Judge

One who hears and decides a matter or case (gives a judgment) in a court of law.

Judgment

The decision that finally disposes of an application or action on its merits.

Jury

A group of citizens sworn to hear a case presented in a court. These citizens decide which version of facts and evidence presented by the opposing parties, in their opinion, constitutes the "truth." A presiding judge will guide the jurors in interpreting the law. The decision to have a medical-legal case heard and made by a judge alone or by a jury is decided through an application (request) made by either of the parties in the lawsuit to a court. Québec does not have jury trials for civil matters.

Just culture of safety

A healthcare approach in which the provision of safe care is a core value of the organization. The culture encourages and develops the knowledge, skills and commitment of all leaders, management, healthcare providers, staff, and patients for the provision of safe patient care. Opportunities to proactively improve the safety of care are constantly identified and acted upon. Providers and patients are appropriately and adequately supported in the pursuit of safe care. The culture encourages learning from adverse events and close calls to strengthen the system, and where appropriate, supports and educates healthcare providers and patients to help prevent similar events in the future. There is a shared commitment across the organization to implement improvements and to share the lessons learned. Justice is an important element. All are aware of what is expected, and when analyzing adverse events any professional accountability of healthcare providers is determined fairly. The interests of both patients and providers are protected.

L

Law, common

The law based on court judgments and precedents from previous cases, as compared to the law established by the Civil Code of Québec, or through the enactment of legislation by governments.

Law, statutory

Legislation (including regulations) enacted by governments.

Lawsuit

A civil legal action or proceeding. (See Civil legal action)

Lawsuit, stages of

Legal actions in Canada go through different stages and the specific names of the stages and documents may vary from one province/territory to another. The legal process can be lengthy - taking from months to years.

Pleadings

These are the several documents that serve to define the issues between the parties. The lawsuit begins with the issuance of a document called a Writ or Statement of Claim, or in Québec, called a Requête introductive d'instance. The person commencing the action is the Plaintiff and the person who is being sued is called the Defendant. The plaintiff's Writ or Statement of Claim sets out concisely the facts being relied upon and the damages claimed. The defendant is required, within a specified period of time, to serve a Statement of Defence to the court to answer the allegations in the Statement of Claim. This answer sets forth the facts, allegations, and denials upon which the defendant intends to rely in refuting the claim asserted by the plaintiff. The rules of procedure also provide for Cross-claims among defendants already named and Third Party Claims if a defendant wishes to claim against someone not already named in the action. The plaintiff may deliver a Reply if there is a need to explain or bring out new facts as a result of the Statement of Defence.

Affidavit of documents
After exchange of the pleadings, the parties then proceed to exchange documents. All documents (patient records etc.) relevant to the case must be delivered to the opposing side. Both parties prepare Affidavits (sworn written statements) to indicate this exchange. Certain documents need not be produced, such as correspondence asking for advice on the case between the parties and their lawyers.

Interlocutory applications
Technical issues may arise as to the legal sufficiency of the Writ, Statement of Claim or Requête introductive d'instance in Québec. It is then necessary to file an application to a Judge to determine whether the pleadings are proper or sufficient. Applications (or Motions) may be made from the time that the Claim is served until the time of trial. These applications will usually concern legal issues and quite often proceed without the necessity of direct involvement by the parties. For example, the Plaintiff may bring an application to increase the quantum (amount) of damages originally claimed in the Statement of Claim.

Examination for discovery
The preliminary interview process of the plaintiff or defendant by opposing legal counsel, prior to dismissal, settlement or trial. Discovery takes place under oath before an Official Examiner with the plaintiff's and defendant's lawyers present and sometimes, but rarely, the opposing party (plaintiff or defendant) him/herself present. A transcript of the questions and responding answers is made. Admissions made by a party at Discovery may be used against that party at trial.

Upon completion of the discovery process, the transcripts may be forwarded to the party who has been examined to allow the examinee to review the transcript and to correct and complete any answers which may not be accurately recorded or which, upon reflection, need adjustment.

Settlement
An agreement, usually monetary, made between opposing parties in a lawsuit to resolve the legal dispute. For instance, when a review of the medical facts reveals the health professional breached his or her duty of care resulting in harm to the patient, a financial settlement, fair to all concerned, is made. A lawsuit can be settled at any stage before the trial is concluded.

Pre-trial conference
A proceeding before a judge, usually not the trial judge, prior to the trial to define and focus the issues and if appropriate, to achieve a settlement or resolution.

Trial
Process of examining evidence and applicable law by a judge and perhaps jury to reach a decision on the merits of a plaintiffs claim. Trials vary in length, from days to weeks. The Plaintiffs lawyer first try to prove the Defendants involvement with the patient fell below the standard of care expected in the circumstances. The patient may give evidence; medical records are placed before the Court and, in most cases, a medical expert gives an opinion to support the Plaintiffs claim. The defence is presented in a similar fashion. Following the presentation of evidence, counsel for both sides present a legal argument in which they attempt to summarize the relevant facts and assist the Court with the application of relevant law. The judge or the jury will then make a decision, called a Judgment.

Appeal
After a trial, if one of the parties is dissatisfied with the result they may choose to appeal to a higher court. The decision to pursue an appeal must be made within fixed time limits and requires careful analysis. An appeal court does not re-try the case. An appeal is determined on the basis of submissions by legal counsel, relying on transcripts and documents entered as exhibits at the trial. There are no witnesses. An appellant is on strongest ground where he or she can point to one or more legal errors made by the trial court, which if corrected, would change the final outcome.

Liability risks

Health professionals may be exposed to direct liability and can also be exposed to vicarious liability, or joint and several liabilities when collaborating in providing care together.

Each healthcare professional, both individually and as a member of the collaborative practice team, is accountable for his or her own professional practice. If any member of the team is found to have been negligent or civilly liable, the court may award damages to the plaintiff to be paid by the individual defendant. This form of liability is called direct liability.

Vicarious liability
If an employee is found negligent or has committed a fault, the court may order damages be paid by the employer, pursuant to the doctrine of vicarious liability. This legal doctrine provides that an employer, who may be an individual or an institution, will generally be held financially responsible for the negligence or fault of its employees. An employment relationship must have existed at the time of the incident and the defendant employee must have been sued for work done within the scope of his or her employment.

Joint and several liability
When a court finds more than one defendant negligent or civilly liable, the court will assess the amount of damages (often expressed as a percentage of the total damage award) to be paid by each defendant. Defendants can be jointly and severally liable for the damages awarded. This means the plaintiff may recover full compensation from any one of the negligent defendants, even though one defendant may be paying for more than his or her proportionate share of the damages. That defendant may then seek contribution from the other negligent defendant(s).

Liability protection
Because of these potential liability risks, all members of the healthcare team and the institution or facility must have and maintain appropriate and adequate professional liability protection to protect themselves and the patients they treat.

M

Malpractice

Term generally used to mean medical-legal difficulties or, more specifically, negligence. Malpractice is not well-defined legally and does not serve to define the true nature of the cause of a legal action against a health professional. In Québec, the concept of malpractice serves as the basis for civil liability of health professionals.

Mediation

Part of the legal case resolution process, whereby a mediator assists the opposing parties to negotiate a resolution.

Medical directive (or Collective prescription in Québec)

A prewritten list of instructions, orders or protocol to allow specific health professionals to implement care for identified patient groups with specific clinical conditions.

Medical expert

(See Expert)

Minor

A minor is a person who has not reached the age of majority. (See Consent, age of; Age of majority)

Most responsible physician (MRP)

The physician most directly involved in the patient's care at the time of the adverse event. This may be the attending physician or a consultant. MRP may not be synonymous with the admitting physician in a hospital setting.

Motion or Application

An application to a court or judge to compel some act as desired by the applicant.

N

Near miss

(See Close call)

Negligence/faute professionnelle

A legal concept. In all provinces/territories of Canada except Québec, to establish negligence by a physician, a plaintiff patient must prove to the satisfaction of a court that harm to the patient was caused by the failure to exercise a reasonable and acceptable standard of care by the physician. In the courts, the medical standard of care to determine negligence is not one of perfection but rather the standard of care that might reasonably have been applied by a colleague in similar circumstances.

In Québec, the concept of faute professionnelle is at the heart of civil liability. Every person has a duty to abide by certain rules of conduct or standards, and if a person does not, he or she has committed a fault. The plaintiff must demonstrate the physician committed a fault, that is, did not act as a reasonably prudent physician of similar training and experience would have under the circumstances. The plaintiff must also have suffered an injury as a result of the fault committed, and the plaintiff must establish the fault caused the injury.

Negligence, contributory or fault of the plaintiff

The negligence of a plaintiff (patient), while not the sole cause of the harm or injury, nevertheless combines with the negligence of the other defendant(s) to cause the harm or injury. For example, the defendant physician alleges the patient did not follow the physician's advice and this made the situation worse.

P

Patient safety

The reduction of unsafe acts and practices, the mitigation of the impact of these, and the use of good practices shown to lead to safer patient care.

Plaintiff

The party initiating a lawsuit. (See Defendant)

Pleadings

(See Lawsuit, stages of)

Pre-trial conference

(See Lawsuit, stages of)

Preventable adverse event

(See Adverse event)

Protection of information

Privilege, legal (common law jurisdictions) or the right to confidentiality (Québec)
Special legal right, exemption or exception preventing access to information.

The verbal and written communications between a lawyer and client are privileged or confidential (protected from disclosure/production) and are inadmissible in court or other proceedings.

Protection of confidential information obtained in quality assurance investigations
All Canadian provinces and territories have laws to protect against or restrict disclosure of information gathered during investigations by properly structured hospital/institutional quality of care committees or critical incident review committees. Although regional variations exist, patients, the courts and regulatory authorities (Colleges) would generally not have the right to information gathered under these committee investigations.

In Québec, the law does expressly grant a professional order, such as the Collège des médecins du Québec, full access to the minutes of Risk and Quality Management Committees or to the Conseil des médecins, dentistes et pharmaciens (CMDP) and its committees.

R

Reasonable

Viewed as being fair and appropriate in the particular circumstances, within the bounds of reason.

Red flag

A non-specific finding (e.g. symptom, risk factor, sign, or test result) that increases the suspicion for the presence of a particular medical condition.

Regulatory authority, professional

Licensing body for a profession.

Provincial/territorial medical regulatory authority (College):
Body that regulates the practice of medicine in each province or territory to ensure the public receives quality medical care from physicians. The responsibilities include:
- Issuance of certificates of registration to allow the practice of medicine,
- Maintenance of standards of practice,
- Investigation of complaints against physicians, and
- Remedial education or discipline for those guilty of professional misconduct or incompetence.

The medical profession is self-regulating in Canada. Each authority has an investigative process and committee structure to make decisions on different issues and complaints.

Reporting

The communication of information about an adverse event or close call by health care providers through appropriate channels inside or outside of health care organizations for the purpose of reducing the risk of adverse events in the future. (Canadian Patient Safety Institute (CPSI) definition)

Reporting of an adverse event

Notification by a health care provider of the occurrence of an adverse event to institutions/hospitals or other bodies. Rules or statutes may require such notification. The use of this term allows a distinction to be made from disclosure of an adverse event to the patient by the health professional/provider. (See Disclosure)

Report, Duty to

(See Duty to report)

Risk management

Activities undertaken to identify, analyze and educate, and to structure processes to reduce the likelihood of adverse events. These may be on an individual or institutional level and can be proactive or reactive in nature. Medical-legal risk management is the term used to indicate efforts and approaches to prevent medical-legal problems.

Risk, material

The courts generally consider material risks as being those that a reasonable person, in the same circumstances, would want to know before consenting to an investigation or treatment. This would include complications that occur commonly, and also those complications that occur rarely but have significant consequences for that patient.

Risk, special

A court may consider the patients physical or psychological makeup will make even an uncommon risk of a medical investigation or treatment special or more important for that patient.

Root cause analysis

A systematic process of investigating an adverse event or near miss to determine the potential underlying contributing system factors. The purpose is to develop recommendations for system improvements to decrease the likelihood of similar occurrences in the future, when possible. Other similar terms are multi-factor and cascade analysis. These latter terms better reflect the idea that it is frequently a series of mishaps that converge to cause harm to the patient. Several other approaches to investigating adverse events exist. (See Failure mode effect analysis)

S

Scope of practice

The range of healthcare tasks, decisions or activities of a qualified, licensed healthcare professional (e.g. doctor, nurse practitioner, nurse, pharmacist) allowed by law and the provincial/territorial licensing authority governing that profession.

Sentinel event

An unexpected occurrence resulting in serious physical or psychological injury, death or the risk of these outcomes. The word "sentinel" is related to "signal," indicating a more urgent investigation and response is required.

Settlement

(See Lawsuit, stages of)

Statement of claim

(See Lawsuit, stages of)

Statement of defence (Plea)

(See Lawsuit, stages of)

Statute of limitation or prescription

Law that specifies the allowable time interval and conditions between the time of the alleged negligence or faute professionnelle and of the filing of the lawsuit. This time interval (or limitation) varies between provincial /territorial jurisdictions. In Québec, the principles of prescription are found in the Civil Code of Québec.

Structured settlement

Regular payments of compensation over time, rather than a single "lump sum" payment. Usually, an annuity is purchased to provide a guaranteed tax-free stream of payments to ensure the injured patient receives the necessary future care. Structured settlements benefit the patient, as there is certainty and stability of the payments into the future.

Subpoena or Summons to witness

Sometimes called a summons to witness, a subpoena is a legal notice mandating an individual's appearance in a court case. For physicians, this usually relates to a patient seen in practice. A physician receiving a subpoena is obligated to attend the court hearing and may be directed to bring specified records. However, the subpoena only allows the physician to discuss the medical care of a patient in court after being sworn in.

For the physician to release information prior to the court proceedings to any third party, including the Crown, government or other police agencies, the patient must first authorize in writing the release of the information.

Substitute decision maker (SDM)

A person who is legally authorized to make decisions on behalf of the patient. This authority may be granted by the patient himself or herself with a legal document such as an advance medical directive, by legislation in each province/territory or by the courts.

Summons to witness

(See Subpoena)

System

(See Subpoena)

Systems approach (to patient safety)

Focuses on the characteristics of the health care delivery systems and on the environments in which health professionals work to prevent adverse events. The approach recognizes that all health professionals may make mistakes in their work and further that a focus on the system, rather than entirely on the individual, has the potential to prevent more adverse events.

System failure

The lack, malfunction or failure of policies, operational processes, or the supporting infrastructure for the provision of health care.

T

Testimony

Evidence presented under oath.

Tort

In common law, a tort is a civil wrong for which a legal remedy exists. The wrong relates to harm or losses occurring to a person or their property because of deliberate action or carelessness of another and forms the basis of the claim by the plaintiff in the majority of civil legal claims. Tort does not refer to breach of contract issues. The concept of "tort" does not apply to Québec.

Trial

(See Lawsuit, stages of)

V

Verdict

The decision of a judge or jury in a trial.

Vicarious liability

(See Liability risks)

W

Witness

(See Liability risks)

Witness of fact

A witness who assists the court in a legal action by giving evidence as to the facts of what happened, rather than giving expert opinion.

Witness, medical expert

(See Medical expert)

Wrongful birth claim

Action brought by the parents of a child born with a congenital defect for recovery of the extraordinary costs of rearing a disabled child on the basis that the defect should have been diagnosed prenatally and the failure to do so deprived the parents of the opportunity to terminate the pregnancy.

Wrongful death claim

A claim by the surviving dependents or beneficiaries alleging the person has died because of the negligence of another.

Wrongful life claim

Action brought by or on behalf of a child born with a congenital defect for recovery of the extraordinary costs of care the child may require and loss of income it may suffer as a result of its disability, on the basis that the defect should have been diagnosed prenatally and the failure to do so deprived the child's parents of the opportunity to terminate the pregnancy. This cause of action has not been recognized in Canada.