Chute ou accident d’un bénéficiaire à l’hôpital : ce que vous devez savoir

Quite often, when we or a loved one ends up in a hospital or residential and long-term care center (CHSLD), we expect to reside there safely, especially since we often find ourselves in a vulnerable situation.

However, accidents do happen: from the most minor incidents to the most serious, such as a fall from a bed or stairs. Such accidents can further complicate the beneficiary’s state of health, or even lead to death.

So, if a loved one falls or has an accident in a hospital, or, in a state of confusion, leaves through an emergency door that is not equipped with an opening delay or an alarm system, what can you do to shed light on the circumstances of this accident?

So, is there any recourse to engage the civil liability of the professional acting in the establishment where the incident took place, or even of the establishment in question?

I. Adopt the right reflexes: document the customer file

In hospitals and CHSLDs, incidents of varying degrees of seriousness can occur with varying frequency. This means that incidents are not necessarily isolated, but can be recurrent.

If your loved one falls out of bed on a regular basis, for example, it is very important to ensure that these incidents are recorded in the user’s file.

Why is this the right thing to do?

Quite simply, because the user’s file will be accessible to you if you make a request for access to a document to the facility that houses your loved one, with a view to producing it in court. Recording or mentioning each incident, preferably in as much detail as possible, in the beneficiary’s user file, makes it possible to list all the malfunctions that have occurred, from the smallest to the most important. The recurrence of incidents, and particularly the recurrence of a specific or unique incident, could indicate a systemic problem occurring in the plant.

Hospitals and CHSLDs are governed by the Act.

In principle, hospitals and CHSLDs are governed by the Act respecting health services and social services (LSSSS). The very purpose and objectives of this law are to act for the “maintenance and improvement of the physical, psychic and social capacity of people to act in their environment and to fulfill the roles they intend to assume in a manner acceptable to themselves and to the groups to which they belong”, and more specifically to “reduce mortality due to disease and trauma as well as morbidity, physical incapacity and disability” (Article 1).

This law, therefore, aims to “ensure the safe delivery of health and social services to users” (Article 8.1°).

To this end, it stipulates that hospitals and CHSLDs must set up risk management committees, whose main objectives are to prevent and limit risks to beneficiaries, and to analyze risks and limit their recurrence (Article 183.3).

It is therefore essential to ensure that every incident and/or accident is recorded in the user file, because as we have seen, the user file and all the information it contains are not subject to the legal protection of confidentiality.

The user file can therefore be communicated, and thus presented to the judge in the event of legal proceedings.

II. Overview: The Act respecting health services and social services (LSSSS)

While this law lays down the general principles governing the activities of hospitals and CHSLDs, it also includes provisions for the operation and formation of risk management committees, whose purpose is to prevent and avoid the risk of incidents or accidents in order to ensure the safety of users, by analyzing risks, and with a view to preventing their occurrence and controlling their recurrence.

This is precisely what Article 183.3 of the LSSSS provides.

In the event of an accident or fall in a hospital, the importance of this provision is crucial: it lays down the procedures for using the information contained in a risk management file, and establishes the protection of this confidential data, precisely in terms of evidence aimed at establishing civil liability before a court of law.

Article 183.3 of the LSSSS states unequivocally that “No element of the content of the risk management file, including the reasoned conclusions and, where applicable, the accompanying recommendations, may constitute a declaration, acknowledgement or extrajudicial admission of a professional, administrative or other fault likely to engage the civil liability of a party before a judicial body”. The patient file is therefore essential for documenting events.

III. The coroner’s report: a valuable source of information

A coroner’s report is a public document, accessible to everyone.

At least, that’s what section 96 of the Coroners Act stipulates, L.R.Q. c. C-68.01formally recognizes that the coroner’s report is a public document: “96. The coroner’s report, with the exception of appended documents and parts of the report that have been prohibited from publication or distribution under this Act, is public and may be consulted by any person. A certified copy may be obtained upon payment of the fees provided for in the regulations.

The coroner’s report may be relevant: if a beneficiary dies and an autopsy is performed, the elements indicating the circumstances surrounding the death and the autopsy findings found in the coroner’s report may be relevant. Precise details of the circumstances surrounding the beneficiary’s death can shed light on a situation, and thus serve to define which responsibility to engage; it can also demonstrate the recurrence of incidents or accidents (repeated fractures, etc.) which, read in conjunction with the user file, could serve to demonstrate the relevance of the said report.

IV. Some limitations: the application of section 183.3 of the LSSSS ?

As we have seen, certain documents and reports are legally protected and are inadmissible as evidence, with a view to engaging civil liability before a court of law.

But not all documents can be ruled out: in M.M. v. Center hospitalier régional de Trois-Rivières (CHRTR), 2012 QCCAI 48, In this case, the court authorized the communication of accident declaration and disclosure reports that must and, in fact, are filed in the user’s file (see par. 35 to 41).

However, he refused to authorize disclosure of the accident analysis report, since this document is watertightly protected and the absolute confidentiality of the files and minutes held by the risk management committee, including the accident analysis report, must be preserved. The accident analysis report is not part of the user’s file.

The scope for protecting the confidentiality of documents relating to an incident or accident is very broad. In one case, for example, it was decided that the “risk manager” working for the health care facility did not have to answer the opposing party’s questions about the findings of the investigation into the accident at the facility, since these were confidential documents. (Boissonnault v. Fortin, 2010 QCCA 1620).

However, it is also possible that the incident or accident report is only partially communicated, for example, concerning only the names of witnesses. Anderson c. CHU de Québec — CHUL, 2015 QCCQ 8835. In this case, for example, which concerned a patient’s fall in the CHUL parking lot, a request for access to the incident/accident report completed by a security guard was refused, except for the names of witnesses.

V. In Summary

If a loved one in a hospital or CHSLD is the victim of a fall or accident, do the right thing: document the incident and, above all, contact one of our lawyers, who will guide and support you in your efforts.

NOTE: This article does not constitute legal advice or a legal opinion. It is intended solely to inform readers of certain aspects of the laws surrounding civil liability in the province of Quebec and in Canada.