Canadian Lawyer

November 2020

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36 www.canadianlawyermag.com LEGAL REPORT MEDICAL MALPRACTICE proper notes and "make any other consider- ations revolving around his or her ability to ensure the quality of care and standard care [are] met in a virtual setting." He adds that every patient scenario will be different in assessing whether the correct standard of care can be provided in a virtual setting. Factors such as language skills and ability to articulate symptoms will need to be gauged, Embury says, and physicians will have to be mindful of virtual care's limits. Proper documentation of the visit and adequately explaining to patients the poten- tial challenges of a virtual encounter will be essential to physicians to provide the appro- priate care standard. Another factor could be the length of the doctor-patient relationship. Is it a long- standing relationship or a first-time virtual visit to a walk-in clinic? "The question of trust between a doctor and a patient is important, as is the length of that relation- bodies and those organizations representing specialties haven't had a chance to develop guidelines to help physicians walk their way through any specific issues related to virtual care. "The procedures will be developed over time, but right now, they are in their infancy. "And every area of medicine is different — a surgeon might have one idea and a family doctor another, and how each area uses virtual care could turn out to be quite different." Duncan Embury, the lead medical malpractice lawyer with Neinstein Personal Injury Lawyers, says the standard of care for both the in-person or virtual options is the same. However, "the threshold for passing that patient on or getting them into the hands of some other service may well be lower in the virtual world." As a result, physicians are obligated to engage in a "fine balancing act," he says. They will need to ask the right questions, take key is for physicians to establish whether that patient is suitable for virtual care through their virtual meeting. "It's not unlike other circumstances that we could think of in a medical context," she says, "but now it is a very important consid- eration for physicians when they're speaking to someone over the phone or via visual conference calls." Darryl Cruz is a partner at McCarthy Tétrault LLP in Toronto, who acts on behalf of the defence in medical malpractice cases. He says, in general, the current law around the concept of standard of care in a virtual or in-person setting is the same. "That standard is judging whether a doctor's treatment for a patient is reason- able and comparable to what another doctor would do in the same circumstances," he says. "The standard hasn't changed, it's just a different way of delivering health care." However, he does note that the regulatory BETTER OFF WITH VIRTUAL CARE? What would be the impact of virtual care on the overall level of health of Canadians 27% Better 10% A lot better 48% Neither 13% Worse 3% A Lot worse Source: Canadian Medical Association poll of 1,800 Canadians, May 2020

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