Comment: Cilinger C. Centre Hospitalier de Chicoutimi.

• Author: Hardcastle, Lorian
• Position: Anahit Cilinger - Canada

According to the recent report of the Commission on the Future of Health Care in Canada, "[i]n the minds of many Canadians, the quality of our health care system should be judged, first and foremost, by its ability to provide timely access to the care people need." (2) The issue of waiting times in health care will only become more significant in light of cost-constraints in the public system, the proliferation of medical technologies, and the aging population.

In addition to waiting times being the subject of public policy and debate, they are also at issue in a recently commenced class action. The action arose when Anahit Cilinger, who was diagnosed with breast cancer in October 1999, was still awaiting radiation treatment in January 2000. Frustrated with waiting, Ms. Cilinger returned to her native Turkey for the treatment, which cost her approximately $12,000 USD. (3) Ms. Cilinger then initiated a class action on behalf of herself and other persons suffering from breast cancer who had been unable to obtain radiation therapy within eight weeks of surgery.

The action alleged that twelve Quebec hospitals were liable for leaving patients waiting beyond what is medically recommended, in breach of their statutory obligations. The action also named the Quebec government as a defendant, for its alleged failure to provide adequate funding, resulting in the hospitals being unable to hire an adequate number of radiologists or purchase sufficient equipment. Although Biship J.C.S. certified the class action against the hospital defendants, the Court refused to allow the action to proceed against the Quebec government, a decision that was upheld on appeal. (4)

Significance of the Case

Although there have been numerous cases advancing claims against hospitals, this case is significant in a number of respects. Historically, the duties owed by a hospital to a patient were limited to providing adequate staff and properly maintaining the facility and equipment. Although these duties have been broadened to include a duty to establish systems for the safe operation of the hospital, (5) this has typically been limited to requiring the establishment of policies or procedures to protect against injuries. For example, in Lacombe c. Hopital Maisonneuve-Rosemont, the defendant hospital was found liable for failing to have an alarm bell available for patients waiting for treatment, and failing to have a policy instructing emergency room nurses to re-evaluate the condition of patients waiting for care. (6) In comparison, Cilinger addresses the much broader issue of hospital waiting time policies and procedures, and the reasonableness of resource allocation decisions. The possible ramifications in Cilinger are also more far-reaching. For example, the Lacombe judgment might require that the hospital formulate new policies for monitoring patients and install alarm devices. Comparatively, the result of Cilinger might be that in order to avoid liability, a hospital has to determine what the appropriate waiting times are for every available procedure, and to implement policies to ensure these appropriate times are met.

In addition to examining the broader issue of hospital liability at the systemic level, this case also raises the issue of the defence of limited resources. Although the Court declined an application to join the Quebec government as a party to the proceedings, presumably the hospitals will defend any finding of negligence on the basis that limited resources precluded any higher standard of care than that which was delivered. With regard to physicians, Robertson notes that courts have accepted that the standard of care may take into account the resources and facilities available, and that if a hospital does not have a particular piece of equipment, a doctor cannot be liable for a failure to use it. However, there could be liability where a particular test is available at the hospital, but a doctor chooses not to avail herself of it for cost-containment reasons. In support of this, he cites Law Estate v. Simice, in which the British Columbia Supreme Court stated "[i]f it comes to a choice between a physician's responsibility to his or her individual patient and his or her responsibility to the medicare system overall, the former must take precedence ..." (7)

However, with regard to hospitals, the case law is less clear whether the standard of care may take into account resources. (8) If a similar analysis to the one above was applied, it is unclear whether the failure to treat patients within a certain time would result in liability. One might argue that the cause of this failure is inadequate funds being allocated to the oncology department, something within the hospitals' control, similar to the doctor who chooses not to use an available treatment for cost reasons. However, if one were to argue that the cause of this failure is an inadequate number of oncologists in Canada, this may be more analogous to a doctor who could not perform a particular procedure because the necessary equipment had not been purchased in her hospital.

In addition to the tort law cases discussed above, recent jurisprudence has also expanded in the area of subjecting health policy decisions to constitutional scrutiny. In the last eight years, the Supreme Court of Canada has ruled that a province's failure to provide sign language interpreters constituted discrimination, (9) that a government's failure to fund behavioural therapy for autistic children was not discriminatory, (10) and, more controversially, that legislation prohibiting private health insurance violated the guarantees under Quebec's Charter of human rights and freedoms in Chaoulli v. Quebec (Attorney General). (11)

Although Cilinger does claim the waiting times are contrary to both the Quebec Charter of human rights and freedoms and the Canadian Charter of Rights and Freedoms, unlike the above-mentioned cases, this is not the focus of the claim, but rather the plaintiffs focus on the violation of a statutory duty to provide care within an acceptable time. (12) Despite this, these recent cases, particularly Chaoulli, will be relevant to the outcome in Cilinger. One of the issues raised in Chaoulli was the appropriateness of courts adjudicating policy decisions. In this regard, the dissent in Chaoulli stated that "[t]he resolution of such a complex fact-laden policy debate dose not fit easily within the institutional competence or procedures of courts of law." (13) Clearly the issue of the reasonableness of waiting times is also complex and...