title: Malpractice liability implications of pacemaker and defibrillator guidelines in Canada.
abstract: Different guidelines for implantable pacemaker and cardioverter defibrillator therapy pose problems for legal liability in Canada. Medical practices in the United States provide measures for comparative assessment, but the Canadian health care system is operated and publicly funded on West European principles. Provincial governments accept the responsibility to provide their residents with reasonable access to medically necessary services, including devices, on conditions of partial reimbursement by federal government funds. However, some provinces may fund services for which they will not be reimbursed. Practitioners may practise according to governmental funding arrangements. The law recognizes that practitioners in a respected minority in their specialty can depart from generally approved professional guidelines, by retaining earlier practices that are not discredited, or by adopting newer, but non-mainstream practices. They can similarly follow professional guidelines different from those of their colleagues. Practitioners who depart from guidelines they profess to follow risk legal liability, but compliance does not invariably ensure judicial approval. Judges preserve the right to set standards of professional proficiency, since they are a matter of law, but usually endorse professional guidelines. Patients' choices must be adequately informed, according to well-established criteria of disclosure that must be applied to evolving professional views of best and acceptable practice, which are usually influenced by practice guidelines. Inadequate governmental provision of devices or services to ensure patients' care according to practice guidelines can be challenged in legal proceedings. Success may require governments to improve supplies, but judges may decline to give directions with serious budgetary implications. However, unsuccessful litigants against, for instance, governments or physicians, are liable to be required to pay the successful defendants' legal costs, and usually their own.
authors.affiliation: Faculty of Law, University of Toronto, Toronto, Ontario, Canada. bernard.dickens@utoronto.ca
authors.forename: Bernard M
authors.initials: BM
authors.lastname: Dickens
mesh_terms: D002170:Canada; D002309:Cardiology / Q000331:legislation & jurisprudence* / Q000592:standards*; D017147:Defibrillators, Implantable / Q000592:standards*; D005060:Europe; D006801:Humans; D007258:Informed Consent / Q000331:legislation & jurisprudence; D016365:Liability, Legal; D008318:Malpractice / Q000331:legislation & jurisprudence*; D010138:Pacemaker, Artificial / Q000592:standards*; D017410:Practice Guidelines as Topic / Q000592:standards*; D014481:United States