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Ontario Premier Doug Ford shielded the province’s long-term care (LTC) homes from liability during the pandemic, but, in an interesting twist, it may end up being his government that is successfully sued.
In late December, a judge allowed a class-action lawsuit against the Ontario government to move forward pending an appeal from the province. The suit alleges the Ford government was grossly negligent in failing to prevent nearly 4,000 deaths and 23,000 COVID-19 infections of residents and workers in LTC homes.
While lawsuits against health-care providers are common in the U.S., they are much rarer in Canada. It’s rarer still to see governments as defendants, because they’re often protected from liability. This means, in order for such cases to move to trial, they must meet a much higher standard of legal analysis and evidence.
As Canada’s health-care systems continue to crumble, resulting in increasingly poor patient outcomes, prolonged pain and even death, the case raises the question of whether governments can be sued for neglecting other medical venues — say, hospitals.
Could potential financial liability be the thing that finally gets premiers and ministries of health to fix their failing systems? As they say, perhaps Canadians need to hit them in the pocket, where it really hurts.
Could financial liability be what finally gets premiers … to fix their failing systems?
In his decision, the judge in the LTC case against Ontario referenced reports by the auditor general and the province’s Long Term Care COVID-19 Commission, which were fairly damning of the provincial government. “The defendant’s historic neglect of the LTC sector is discussed in these reports under various headings: chronic underfunding, poor and outdated infrastructure, severe staffing shortages, inadequate Infection Prevention and Control (‘IPAC’) practices, an inexplicable failure to maintain an emergency stockpile of PPE, poor oversight and enforcement of legislative standards and increasingly lax inspections,” he wrote.
“As the commission concluded, the wide array of systemic issues which had plagued the LTC sector for years prior to the onset of the COVID pandemic, ‘create(d) fertile ground for excess mortality’ of LTC residents during the pandemic.”
It’s easy to see similarities to other parts of our health-care system. On Dec. 31, a 37-year-old Nova Scotia woman died after a seven-hour Emergency Room wait. Her widower reported she was in so much stomach pain, he had to carry her into the hospital, where she spent the latter part of her wait curled up in the fetal position on the floor. The previous day, another Nova Scotia woman had left a different hospital after waiting seven hours to be seen in ER for extreme jaw pain and flu-like symptoms. The 67-year-old died an hour after leaving hospital.
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Theirs are only the most recent tragic stories like this. In October, a Quebec man died after he waited 16 hours to receive urgent care. “We can’t 100 per cent guarantee that the patient would have survived but he would have had a good chance of surviving if we would have started treating his aneurysm at the right time,” one of the ER doctors later told CTV.
Sadly, there are likely more deaths, complications and long-term disability to come for Canadians who can’t access timely emergency care. That doesn’t even begin to tally up the human costs of health-care wait times outside of hospitals, whether in family medicine or access to diagnostic tests.
These are not failures of individual doctors or hospitals, but systemic failures — ones it’s near impossible for provinces to say they didn’t see coming. The problem has been visibly compounding for years, with hallway health care and unacceptable wait times making headlines long before anyone ever heard of COVID-19. Yet, little meaningful action was taken.
These are not failures of individual doctors or hospitals, but systemic failures
The last time Canada saw a string of highly publicized lawsuits against provinces over health-care wait times was nearly two decades ago. In 2005, the Supreme Court ruled in favour of plaintiffs in the “Chaoulli case,” which challenged Quebec’s ban of private medical insurance for services covered under the province’s health-care program, even though many were subject to long wait times. The decision to allow private insurance, however, was only applicable inside Quebec.
In 2007, a suit brought by Lindsay McCreith and Shona Holmes against Ontario sparked a very Canadian culture war when Holmes’ story hit it big in American media and was used to lobby against Obamacare. The pair claimed their health deteriorated under the “government-run monopolistic” health-care system thanks to long wait times, and wanted to be able to buy private health insurance.
While these suits challenged the fabric of Canada’s universal health-care system and predictably became magnets for controversy, lawsuits needn’t be quite so existential to motivate governments to take the problem more seriously and commit to change. Beyond financial penalties, lawsuits also tend to generate publicity that politicians would much rather avoid.
If provincial governments can’t motivate themselves to fix health care, maybe lawsuits can.