Emergency department overcrowding

In his response to my article,1 Daniel Kollek has identified the essential legal issue with which we are now faced: whether it is reasonable and ethical to hold a physician (or hospital) liable in negligence for failing to treat or for inadequately treating an individual in need of emergency care due to patient overcrowding, lack of personnel or equipment, or both. By the “reasonable person” standard, the answer may be “no”; however, it remains to be seen what the judicial response will be.

Since the Fleuelling case,2^,3 a second action has commenced in Ontario relating to the issue of emergency department overcrowding. In the Mitchell case,4 a girl of 10 months died after a 5-hour wait in a hospital emergency department. The family has commenced an action against the hospital and the emergency department staff. In a separate action against the Government of Ontario, the family alleges that negligent actions and decision-making by servants of the government, including decisions to reduce health care funding, contributed to the overcrowding and the resultant delay in treatment. The Ontario government failed on a recent motion to strike out the statement of claim as disclosing no reasonable cause of action, and the litigation can proceed.4

Kollek has identified an obligation on the part of hospitals to advise the public and the government of the actual levels of emergency services that they can provide. Such disclosure may serve to emphasize the severity of the health care situation and may reduce public reliance on the services provided by emergency departments and staff. Although the court has identified a duty for hospitals to advise the public of emergency department closures and reductions in staffing, I would hesitate to conclude that a declaration by a hospital that it is no longer performing up to the accepted standard of care would protect it and its staff from legal ramifications, especially considering the recent trend in litigation.

Anne F. Walker Strathy & Richardson Barristers & Solicitors Toronto, Ont.