Dr. Sarita Verma at the Health Law Conference

First post in a series on the First Annual Interprofessional Health Law Conference.

Dr. Sarita Verma, Deputy Dean of Graduate Postgraduate education at UofT Medicine, is a family physician who originally trained as a lawyer at UofO.

She quickly polled the audience and found about half of the attendees were law students, half medical students, with some nursing, public health, and other graduate students.

The Tension Pentagon

Dr. Verma briefly discussed some of the many areas of health law where medicine and law interact.  She noted that mental health was one of the growing areas of health law.

She then presented a new model she had developed to evaluate the context of health law issues.  This tension pentagon was comprised of 5 different stakeholders, whose interests often conflicted and interacted with each other.

At the center of the pentagon was the public, which is important in creating a publicly-centered health system.

The 5 influencers were:

  1. ethics
  2. practitioners
  3. funders
  4. industry
  5. legal system

We all have our own values and beliefs, what we think is right and wrong, which influences our health care decisions.  Although health care was very important in the past U.S. election (top 3), it continues to be the #1 issue in Canada.

The practitioners were comprised of the regulated health professions, all who have their own interests at stake.  Billing issues, especially for physicians, are a frequent area of contention.

Billing gives rise to who will pay the bills, and the second point of the pentagon.  Even if the best drug for a disease has been identified, the funders may have other criteria for paying for drugs that prevail over these interests.

The industry is always developing new and improved technologies for health care.  We might have remarkable and new Positron Emission Tomography (PET) procedures, but these techniques will not be available to practitioners.  As an American-trained nuclear medicine technologist who worked with PET before moving to Canada, the scarcity of these new techniques was quite a surprise to me, and one of the reasons I got into policy work.

If a resolution cannot be found between these five influencers, there will be tension in the system.  Dr. Verma claims that at least one of these is always behind a health care decision.

Impact of the Patient Safety Movement

Next, Dr. Verma discussed the patient safety movement, which has had an unprecedented impact on how we practice law and medicine.  Law has started to deconstruct the accusatory approach, avoiding blaming when an error is made.  In health, there has been a demystification of requirements for hiding the truth to protect yourself or your colleagues.  Health care professionals can now disclose errors without fear of retribution.

A couple of major incidents helped accelerate the patient safety movement.  The Krever Inquiry on tainted blood transfusions was Canada’s largest public health catastrophe in our history. The report describes in meticulous detail over three volumes the failures of both the medical and legal systems.

But Dr. Verma wonders if we actually learned anything from all that, becuase just 11 years ago we had the Goudge Inquiry, which looked at the errors of chief pathologist Charles Smith.  The discovery of these errors had significant impact on the lives of individuals, and raised issues of competency, rigorousness of guidelines, and accountability.

In this instance, it took law to bring the medicine back on track.  The medical industry can often be characterized by hubris that they are sacrosanct no matter what, and there is a need for checks and balances.

The Regulation of Products and Patients

Dr. Verma then discussed regulation.  Self-regulation has been the hallmark of physician autonomy, and the public trusts the professional judgment of physicians.  But patients must remain the primary concern of all health care providers.

Regulation of professionals varies considerably across the provinces and the different professions.  An overlap of the scope of practice is the result of a broad shift from profession-centered to public interest regulation.  Some of these changes have been resisted by some stakeholders however, such as the Canadian Medical Association (CMA).

Products also have to be regulated.  An example is Thalidomide, which was discovered could cause serious congenital birth defects.  As a result, Canada has put in place a framework for the regulation of drugs and devices in both pre and post marketing stages of product development.

But there are still no regulation for complimentary medicine, and it’s an area of concern for many in the health field.

Dr. Verma also claimed that regulation often doesn’t work, because although the provices are typically the payors of drugs, policy is set at the federal level.   The federal government is largely insulated from their decisions, so although they help regulate drug prices, they usually do not purchase them directly.  As a result, the provinces have no jurisdiction over market competitiveness, but still pay most of the drug costs incurred.

Industry is a very important player, and one that is difficult to impact.

We didn’t learn from Thalidomide because then we had Vioxx, which ignored the effects on the cardiovascular system.

Policy Formation

Canada still has one of the best health policies in the world, especially when compared to countries like the U.S.

But our government only pays for about 70% of health costs, which is still slightly below the OECD average. The Canada Health Act only requires coverage of medically necessary care, and even then it’s limited to physician and hospital care.  Also, there is considerable variation in coverage across provinces.

Canadian health care spending is expected to reach $171.9 billion in 2008, or about $5,170 per person.  It comprises about 10% of our GDP, and hospitals account for the largest segment at $48.1 million.

Policy will continue to develop in areas like public health, drug coverage, service coverage and access to care.

Policy formulation tends to often be made by the courts, as in Chaoulli v. Quebec.  Hospitals can try to make their own policies, but wait times also dictate direction as well.   They have tried to shorten the length of stay (LOS) of patients because they get rewarded for shorter stays.

The Provincial Health Human Resources group provided a number of recommendations, including expanding medical schools, a 60:40 ratio of maintaining at least 40% of physicians in family medicine, and reforms of primary care.

Competency of Physicians

Dr. Verma also discussed how the negligence or malpractice of physicians affect perspectives of competency.  Although membership in the Canadian Medical Protective Association (CMPA) is going up, legal actions are going down.  Membership in the colleges is going up, but the number of cases before them are going down.

The type of lawsuits being observed today can be broken down into general categories:

  • 28% are diagnostic errors
  • 25% are surgical errors
  • 25% is improper medical treatment
  • remainder are disciplinary actions or professionalism

She also talked about who gets sued:

  • Obstetrics is one of the highest fields, which can be a big deterrant for those considering the field.
  • Surgeons are also up there, and these usually revolve around communication issues.
  • Anesthesiologists are also sued, for reasons dramatized in the movie Awake.
  • And about 1 in 6 family physicians are sued during their first 10 years of practice, usually when dealing with cases of borderline personalities.  Most of these cases are dismissed.

She also noted that adverse events are also going up, but the number of suits are staying the same.  Patient safety is becoming a major issue.

One of the possible explanations for the decline in lawsuits could be the enormous costs associated with them.  The cost of a 165 day trial is abotu $2 million, a 97 day trial is about $975, 000 and a 33 day trial is around $809, 000.  In today’s economy we will probably see less of these types of cases.

A lot of the cases are also evidence centred, whether or not the truth of what something was said can be established, or if a study that is being relied upon can be defended.

Policy in Today’s Health World

The major policy issues in the health sector will be:

  • the context of health law issues
  • patient safety
  • regulation
  • competency malpractice

There is also the emerging issue of the role of non-profits.

But it’s the dialogue between medical and legal students, and later the professionals, that will be necessary for these issues to be properly addressed.