Abstracts: Volume 36, Number 4

May 2016

Considering Tort Liability for Breaches to Privacy of Patient Data—Managing Risks of Applicability of Privacy Torts, and Especially the Tort of “Intrusion on Seclusion” in the Health Context
Rebecca Bromwich
The mobile revolution is a watershed event across many fields, including health care. Now, electronic data storage, digital photography, smart phones and tablet devices present new opportunities for educators, re-searchers, and health care providers. Mobile technologies allow for new possibilities for physician collaboration as well as patient diagnosis, treatment and study. However, while it presents new opportunities, the mobile technological revolution in health care has brought about new risks to patient privacy. These risks to patients, in turn, translate into exposure to liability on the part of health care providers including physicians, allied health care professionals and institutions. This paper reviews recent developments in the legal landscape providing new forms of civil liability for breaches of privacy and discusses how risks of liability under those developing civil causes of action can be managed by health care providers, while they at the same time harness the potential of the mobile technological tide.

The Ethical and Legal Dilemma in Terminating the Physician-Patient Relationship
Dr. Helen Senderovich
A physician-patient relationship is essential for the well-being of the patient, for without a strong and trusting relationship between both individuals, the patient may not receive the best care that they deserve. There are many legal policies and ethical principles a physician must follow when caring for a patient. It is both the legal and moral duty of the physician to act in the best interests of their patients, while making sure to respect them regardless of background and personal behaviours. The relationship is secured with both trust and respect, for without trust, the patient may hold back from stating their conditions which will result in the physician not providing them with all the care they require. Sometimes, lack of some of these key characteristics of the physician-patient relationship and other circumstances, may cause either the patient or the physician to terminate the relationship. Termination of a relationship creates a difficult situation for the patient, and there-fore there are only specific situations where a physician may have permission to follow through and terminate their relationship. Both the law and ethical principles play a role in the decisions made by the physician in regards to their relationship with the patient, but regardless, the physician has the obligation to make sure their patient is receiving care by one means or another.

Common Occupational Disability Tests and Case Law References: An Ontario MVA perspective on interpretation and best practice methodology supporting a holistic model, Part I of III (Pre-104 IRB)
Dr. J. Douglas Salmon, Jr., Dr. Jacques J. Gouws & Corina Anghel Bachmann
This three-part paper presents practical holistic models of determining impairment and occupational disability with respect to common “own occupation” and “any occupation” definitions. The models consider physical, emotional and cognitive impairments in unison, and draw upon case law support for empirically based functional assessment of secondary cognitive symptoms arising from psychological conditions, including chronic pain disorders. Case law is presented, primarily in the context of Ontario motor vehicle accident legislation, to demonstrate how triers of fact have addressed occupational disability in the context of chronic pain; and interpreted the “own occupation” and “any occupation” definitions. In interpreting the definitions of “own occupation” and “any occupation”, courts have considered various concepts, such as:
• work as an integrated whole
• competitive productivity
• demonstrated job performance vs. employment
• work adaptation relative to impairment stability
• suitable work
• retraining considerations
• self-employment, and
• remuneration/socio-economic status.
The first segment of the paper reviews the above concepts largely in the context of pre-104 Income Replacement Benefit (IRB) entitlement, while the second segment focuses on post-104 IRB entitlement. In the final segment, the paper presents a critical evaluation of computerized transferable skills analysis (TSAs) in the occupational disability context. By contrast, support is offered for the notion that (neuro) psychovocational assessments and situational work assessments should play a key role in “own occupation” disability determination, even where specific vocational rehabilitation/retraining recommendations are not requested by the referral source (e.g., insurer disability examination).