Law Times

Page 10 April 4, 2016 • lAw Times www.lawtimesnews.com FOCUS U ndoubtedly, there are rst-rate health practitioners and facilities available in Ontario. But access to exceptional doctors and hospitals does not guarantee that you'll receive exceptional health care. Harmful medical errors, or "ad- verse events," occur in an estimated 7.5 per cent of hospital admissions across the country. When health care goes wrong, what literally adds in- sult to injury is the secrecy surrounding these mistakes. Consider the numerous instances where medical errors leading to disability or even fatality were not adequate- ly disclosed. "Oral cautions" given by the College of Physicians and Surgeons of Ontario (CPSO) to doctors, warning them to deal with serious issues such as errors in prescribing medication, did not appear on the Public Register until 2015. Hepatitis C outbreaks at three To- ronto colonoscopy clinics between 2011 and 2013 were initially kept out of the public eye. As well, the Quality of Care Information Protection Act (QCIPA), which was meant to encourage medical pro- fessionals to share information about critical incidents and health care quality improvement, has been used by some hospitals to bury medical errors. Secrecy surrounding medical errors has been per- vasive and has on occasion resulted in concealment of alleged negligent misconduct. The Ontario Superior Court of Justice recognized that cover-ups occur when Justice Lederman applied the doctrine of fraudulent misrepresentation to toll the limitation period in Giroux Estate v. Trillium Health Centre [2004] O.J. No. 557, afrmed by the Court of Appeal. Justice Leder- man commented at paragraph 40 that "The course of Dr. Harvey's conduct, beginning with lies, and leading ultimately to the falsication of evidence, was done for the purpose of hiding his alleged negligence and also for the purpose of creating doubt in the plaintiffs' minds about the wisdom of bringing a claim." Resistance to the secrecy surrounding medical er- rors has recently emerged, notably within those insti- tutions that themselves rely on "privacy." The Ontario Hospital Association has stated it wants hospitals to know about all complaints against doctors and nurses, Ontario Health Minister Eric Hoskins pushed for better disclosure regarding public health inspections and outbreaks, and the backlash to the QCIPA's effects was palpable. Steps have been taken in some areas to reduce the secrecy. The CPSO launched a transparency project that culminated in the broadening of the scope of publicly available information on doctors, including the addition of oral cautions to the Public Register. There was a review of the QCIPA that led to propos- als for change that were debated in the legislature on March 3, 2016. What remains to be seen is if these piecemeal pol- icy shifts will lead to cultural ones. Regulatory reform will only go so far. That was the problem with the QCIPA in the rst place; the explicit intention was to enable discussion that would improve care and avoid repetition of mistakes, not leave families wondering why their child died. We may be nominally travelling towards transparency, but as we well know, imple- mentation and interpretation are everything. Are we moving towards a brave new world of disclosure, or will we learn, yet again, that old habits die hard? For full references to this article, please visit our website at www.bogoroch.com. Secrecy Surrounds Medical Errors in Ontario Sponsored by By Bogoroch & Associates LLP Personal Injury and Medical Malpractice Lawyers Should prescription drugs be marketed online? BY YAMRI TADDESE Law Times C anada's Food and Drug Regulations doesn't in- clude specific rules around marketing prescription medica- tion on social media, but lawyers don't agree on whether creating such rules is a good idea. Currently, if Canadian drug companies are advertising online, and specifically on social media, they're expected to follow the rules that apply to traditional advertis- ing in print and television. But considering the role of user-generated content on so- cial media, it's time for rules that specifically address marketing on platforms like Facebook, Twitter, and Instagram, says Anushua Nag, who practises in the areas of marketing, advertising, and regu- latory affairs at Gowling WLG. When pharmaceutical com- panies put out information about a certain drug via social media, other users could share or com- ment on that content in a way that alters the message, Nag says. "It's very, very different from traditional media, so I do think there should be more controls or guidelines as to what producers can do online," she says. But Christelle Gedeon, a reg- ulatory lawyer at Fasken Mar- tineau DuMoulin LLP, says the trend in drug advertising points in the direction of marketing on social media. "A lot of people have a Facebook page. They're trying to structure it as more of a patient support kind of page so patients can talk to each other," she says. But Gedeon is less certain new and more specific rules are nec- essary. She says including such provisions in the legislation may in fact be "a double-edged sword." "Should we have legislation? I don't know. I think it works pretty well now," Gedeon says. "I think if we put legislation, it might be too restrictive; it's not going to be something that will open up the possibility to use social media more," she says. "I think it will bring in more like- lihoods of audits, more likeli- hoods that Health Canada and regulators will start monitoring these really closely." Gedeon adds that the rules that apply to traditional adver- tising in print and television are broad enough to apply online. "I think in a lot of areas, apply- ing the old legislation to some- thing that's electronic like social media . . . is a bit imperfect, but at the same time, the way the [regu- lations] are already drafted, it's ex- tremely general," she says, adding that, generally, producers are only permitted to advertise the price, name, and quantity of drugs. Drug producers are now using social media not just to push con- tent advertisement but a patient support platform, according to Gedeon, who says that creates added responsibility. Companies are responsible not just for the in- formation they are putting out but for what others are saying on their social media platforms, she adds. "You're responsible for every- thing that appears on your social media pages. A lot of them have to look at what patients are saying and police it," she says, adding companies remove comments or do away with that responsibility by shutting down comment sec- tions altogether. "Not only do you have to re- port what patients are saying, but if someone is reporting an adverse reaction, you have to be able to fol- low up with that individual. That's part of our regulation," she says. In 2011, the Pharmaceuti- cal Advertising Advisory Board commissioned Dr. Michael Law to investigate online activities by Canadian pharmaceutical com- panies. His report, which came out the following year, said the most important barrier identi- fied by companies in using social media was their perception that the current regulatory frame- work is unclear, followed by the limits placed on them by current regulatory restrictions, and the time required to monitor and re- spond to comments online. Law recommended that the PAAB Code of Advertising Acceptance include specific guidance about how often sites must be moni- tored for comments that breach current advertising regulations. But with the ability to share social media content to an audi- ence virtually anywhere in the world, do social media regula- tions of a specific jurisdiction actually matter? A regulator gets jurisdiction over a drug com- pany's advertising methods on- line when the producer's web site is specifically targeting a popula- tion, according to Gedeon. "If Pfizer U.S. buys Asprin.ca and targets the content to Can- adians, only then can a Canadian legislator take jurisdiction," she says. "The approach generally is to use a .ca address when you want it to be a Canadian con- tent and to use a .com when it's a U.S. content, and companies are pretty good at making a Can- adian entity take care of the Can- adian web site and a U.S. entity take care of the U.S. web site." Nag says it's still worthwhile to create controls around what Canadian pharmaceutical com- panies can say to Canadians on- line. But according to Gedeon, even if Canada did amend its legislation to specifically target drug marketing on social media, it's unlikely it will have greater impact on Canadian consumers than what's going on in the U.S. "In general, the U.S. is more progressive than we are; we're very conservative in advertising because of the way the legislation is drafted. Because the U.S. is for- ward, more aggressive, and we get bombarded by U.S. advertise- ment in Canada, that has more effect than anything a Canadian pharmaceutical can do," she says. "It does drown out any Can- adian effort to advertise. If you're a Canadian and you want to ac- cess a particular web site, you seem to be shunted to the Can- adian web site, so I think that's how they've tried to 'correct' the bombardment, but, essentially, we're getting U.S. advertisement. People are going to their doctors and asking for these products because of the U.S. ads and not because of the Canadian ads." LT Christelle Gedeon says the trend in drug advertising points in the direction of marketing on social media.

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