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Wrong side of the bridge: Discriminatory impairment designations for kids

Wednesday, April 17, 2019 @ 11:14 AM | By Andrew Leroy Rudder


Andrew Leroy Rudder %>
Andrew Leroy Rudder
The purpose of the June 2016, Catastrophic Impairment — Public Hospitals Guideline, Superintendent’s Guideline No. 01/16, issued by the superintendent, is to provide a list of the public hospitals for which in-patient admittance is one criterion for determining whether an insured child under the age of 18 at the time of the motor vehicle accident (MVA) has a traumatic brain injury pursuant to subsection 3.1(1) of the Statutory Accident Benefits Schedule (SABS 34/10).

In order for a child to be granted an automatic catastrophic impairment designation (CAT), the child has to satisfy the three criteria of s. 3.1(5)i of the SABS 34/10:
 
1. In-patient admission to a public hospital in a guideline. 2. Positive findings of “intracranial pathology” that is a result of the accident. 3. The use of “medically recognized brain diagnostic technology.”

The public hospitals in Ontario listed in the guideline are:
 
  • Children’s Hospital of Eastern Ontario (Ottawa);
  • Regional Rehabilitation Centre (Hamilton);
  • Health Sciences North (Sudbury);
  • Kingston General Hospital (Kingston);
  • London Health Sciences Centre (London);
  • McMaster Children’s Hospital (Hamilton);
  • St. Michael’s Hospital (Toronto);
  • Sunnybrook Health Sciences Centre (Toronto);
  • The Hospital for Sick Children (Toronto);
  • The Ottawa Hospital (Ottawa);
  • Thunder Bay Regional Health Sciences Centre (Thunder Bay); and
  • Windsor Regional Hospital (Windsor).

The first observation is that there are no public hospitals in rural areas and near First Nation reserves. If two children suffer a traumatic brain injury from MVAs, in Six Nations of the Grand River and Toronto, they meet the second and third criteria, but the first child is admitted as an in-patient to the Brantford General Hospital (BGH) and the second child is admitted as an in-patient to one of the three Toronto public hospitals on the list, the first child will be denied a catastrophic impairment designation while the second child would be granted it.

This creates a problem with outcomes in the catastrophic impairment designation process that are inconsistent and also raises the issue of discrimination based on geography.  

The second observation is that, if the admission of a child as an in-patient to the public hospitals on the list are sensitive indicators of prolonged recovery and poor outcome, then the Guideline fails to explain why some level 1 Trauma Centres are on the list and others are excluded. Hamilton General Hospital (HGH) is a level 1 Trauma Centre, but it is not on the list. The HGH’s equivalent in London is the London Health Sciences Centre (LHSC), which is also a level 1 Trauma Centre and is on the list. If a child is involved in a MVA in London, and is admitted as an in-patient to the LHSC with the same positive findings of intracranial pathology as a child admitted as an in-patient to the HGH in Hamilton, the first child would be granted a catastrophic impairment designation, but the second child would not. This creates problems with inconsistent outcomes.

 A child’s catastrophic impairment designation should be determined by utilizing a medical evidentiary basis to ensure that outcomes of the designation process are fair, reliable, accurate, consistent and predictable, and not based on the location of the MVA and its close proximity to the public hospitals on the list.

The third observation is that if you limit the focus of the first criterion to a black-and-white analysis of whether a child is admitted as an in-patient to a public hospital on the list or not, then you ignore other legitimate reasons why children with traumatic brain injuries may have been admitted as in-patients to public hospitals not on the list. You ignore reasons such as a backlog, limited beds, poor operational and financial performances, or a child dealing with other serious injuries in addition to a traumatic brain injury.

In the scenario I presented in my previous article, I described a child who sustained a traumatic brain injury in addition to multiple fractures in her spine and shoulder. The MVA happened in Brantford and she was admitted as an in-patient to the BGH. She required immediate orthopedic surgery, so she was rushed to the 6 South Surgical Trauma unit in Hamilton, where she was admitted as an in-patient to the HGH. She met the second and third criteria but was not admitted as an in-patient to the Regional Rehabilitation Centre, which is on the list, because spinal surgery was a priority.

A child with a traumatic brain injury who is admitted as an in-patient to a level 1 Trauma Centre should not be denied a catastrophic impairment designation because she had different serious injuries of varying degrees of severity and priorities, which triggered different in-patient admittance protocols within the same hospital network.
 
There are other factors outside of a child’s control that influence where a child is admitted as an in-patient.

The Investigation Report on the Brant Community Healthcare System, dated June 28, 2017, which was submitted to Dr. Erick Hoskins, the former minister of Health and Long-Term Care, provided statistical data that showed how their health care system has been “struggling in recent years with performance issues, significant financial difficulties and declining staff and physician morale.” These difficulties impact the admittance process.  

I’ve hinted at the importance that an admission as an in-patient to a level 1 Trauma Centre is to the catastrophic impairment designation process.

Why?

I’ll answer that question in my next article, where I’ll explore the underlying rationale of the automatic catastrophic impairment designation in s. 3.1(5)i of the SABS 34/10.

This is part two of a six-part series. You can find part one here, part three here, part four here, part five here and part six here.

Andrew Leroy Rudder's practice at Centennial Law Group LLP is devoted exclusively to serious and catastrophic plaintiffs’ personal injury cases, as well as accident benefits and disability benefits claims. He takes a deep-dive approach to ensure his clients obtain the best medical and rehabilitation care and the fair and equitable settlements they deserve. Reach him at arudder@cenlawgroup.com.

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