Keywords
e-health, institutional liability, vicarious liability
Abstract
This paper examines the jurisprudence on institutional liability for medical er- ror. We argue that the existing jurisprudence relies on assumptions that have been made obsolete by technological advances. In particular, we concentrate on the use of information and communication technologies (ICTs) in the health care domain. As we demonstrate, the use of these tools does not merely increase efficiency and support new health care functions; among other effects, ICT can have a profound influence on how health care practitioners make observations, exercise judgment and perform tasks. These tools influence human capabilities (at both the individual and systems level) in ways that are not recognized in the jurisprudence or scholarly literature on health law.
In this paper, we do not set out a positive program for changes to the law of institutional liability. Our goal is merely to point out that the status quo is inade- quate from an intellectual, practical and moral standpoint. The first section of this paper discusses the traditional approaches to institutional liability in health care — namely, direct duties and vicarious liability. After summarizing the jurisprudence, we shift our attention to the use of ICT in the health care domain. We outline key themes, and identify some of the major efforts underway in Canada to provide new technologies. In the next section, we argue that the jurisprudence concerning insti- tutional liability is based on dated assumptions; in particular, we show that ICT can have subtle yet profound effects on health care practitioners. Arguing that the sys- tem-level errors that arise in these contexts cannot be treated adequately by the current legal framework, we briefly explore the potential of the law of fiduciary duties as a tool to rectify the situation. Our ultimate conclusion is that none of the current legal tools are adequate for dealing with the issue.
Recommended Citation
James Williams and Craig Kuziemsky, "Institutional Liability in the E-Health Era" (2011) 9:1 CJLT.
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