THE LAW * LE DROIT

You and your practice partner: Get it down on paper Fran Carnerie, MHSc, LLB

'In my view, professionals such as doctors, dentists, and lawyers do not have the proprietary right to their patients or clients as does a corporation to its customers. Professionals provide a personal service and establish a personal relationship with their clients regardless of where or how the client or patient arrived at the firm or practice. The client or patient ought not to be 'handcuffed' to the business. Clients should have a freedom of choice." - Per Mr. Justice Potts, the Supreme Court of Ontario, in Goodman v Newman, 34 BLR 23, 1986

hibited depends on the circumstances. Physicians should not become disheartened with the vagueness of the preceding statement from the courts, however, because some criteria have been developed for determining the entitlement of both departing physicians and the practices they are leaving.

Does anybody own patients' names and addresses? Who is entitled to their charts and x-rays when one physician leaves a practice and patients follow?

T| a hat brief passage raises several questions. For instance, who has the personal relationship with the patient if care is provided by more than one doctor? Although there is no property right as far as patients are concerned, does anybody own lists of their addresses and phone numbers? Who is entitled to the charts and x-rays when one physiWhen the decision of Justice cian leaves a practice and patients Potts in the Goodman v Newman follow? case was appealed, the Ontario Under general principles of Court of Appeal left aside the employment law, departing em- issue of property as it pertained to ployees are prohibited from re- client lists ([1988] O.J. no. 298). moving client lists and soliciting Rather, the court focused on the clients on those lists. Whether or relationship between professional not physicians departing from and patient and said the imporshared practices are similarly pro- tant considerations are whether the patients were established in the practice by the departing proFran Carnerie, a lawyer with a special fessional and whether they had a interest in health care employment law, is with the law offices of Brian Grosman, QC, right to follow-up service by that Toronto. person because of the continuous,

exclusive treatment he or she provided. The issue of property in patient lists was addressed squarely by the Supreme Court of Ontario in Bacher and Bo-Jay Holdings v Obar (unreported decision, Aug. 28, 1989), which concerned the termination of an associate dentist by his senior. "Patients have a right to choose their dentist", the court stated. "They are not property to be bought and sold like inventory. Each dentist had the right to provide service to anyone who requested it." Accordingly, any patient who sought the services of the departing dentist could be treated or could continue to be treated by him. The court also found that departing professionals are entitled to request and receive from their former practices the records and x-rays of patients who continue to require their treatment. Otherwise, treatment could be severely compromised. Announcement cards can be used to inform patients of new locations. Physicians must be aware, however, that the use, form and content of such cards are strictly prescribed by provincial regulations, which were discussed in an earlier CMAJ article (1990; 142: 759-760). Doctors should note that most court cases in this area involve professionals who have sued one another because they did not have a written contract, so written documents governing physicians' CAN MED ASSOC J 1990; 142 (8)

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working and business relationships are strongly recommended. Contracts mean doctors can make their own arrangements about patient lists and the courts won't have to do it for them. Here are some arrangements that should be spelled out. How long can a doctor's name remain on the door after he leaves the practice? How much notice is needed by each party to terminate the relationship? What are the practice's obligations concerning patient inquiries about the departed physician? What are its responsibilities concerning copying and forwarding of patient records? What noncompetition provisions are to apply? This last issue can be settled by restricting departing physicians from practising in offices within a certain radius of the original business for a specified time. In this

case physicians, not their managing companies, should be parties to the contract to avoid the argument that corporations do not practise medicine (Carruthers Clinic Limited v Herdman, 5 DLR [2d] 492 [Ont HCJ] [1956]). Written contracts are valuable because the terms of physician contact with patients will be clear from the beginning of the relationship. As well, drafting and executing contracts will cost less financially and psychologically than a lawsuit. [In the June 15 issue of CMAJ (1989; 140: 1477-1478) the Saskatchewan Queen's Bench decision of Marian v Warburton was discussed. Among other things the court stated that physicians are liable for the negligence or malpractice that occurs as a result of the care provided by a replacement physician. Since then

the Ontario Supreme Court has stated that a physician will not be vicariously liable for the negligence of his or her locum tenens. The court reasoned that locum physicians exercise their own judgement in dealing with pa-

tients (Rothwell v Raes, 69 OR [2d] at 63 [1989]). This decision is being appealed to the Ontario Court of Appeal. The law is in a state of flux, therefore, until a more authoritative statement is made by a higher court. Regardless of the outcome, physicians are likely to be vicariously liable for the acts of their locum physicians if they fail to exercise reasonable prudence in investigating them and acting on concerns that arise.]

The information in this article is for reference purposes only and is not to be interpreted in any way as constituting legal advice.

Pr AXID® Lilly - Nizatidine Histamine H2 Receptor Antagonist Pharmacology: Nizatidine is a competitive, reversible inhibitor of the binding of histamine to the histamine H2 receptor of the gastric-acid secreting cells. Nizatidine is not an anticholinergic agent. 8 inhibits nocturnal gastnc acid secretion and gastnc-acid secretion stimutated by food, caffeine, betazote and pentagastdn. Pepsin output is reduced in proportion to the redaced volume of gastnc secretions. Nizatidine baa littte or no effect on basal serum gaston or food induced hypergastrinemia. Nizatidine in absorbed rapidly affer orat administration. Peak ptasma concentrations occur tmom 0.5 to 3 hours after the dose. Absorption is onaffected by food or propantheline. However, antacids decrease the absorption of nizatidine by about 10%. The absotute oral bioavaitabtitity of nizatidine exceeds 90%. Approximatefy 35% of nizatidine is buund to plasma protein, pnmarily oc 1-glyco-protein. This binding is not intluenced by other drugs such as warfaino, diazepam, acetaminophen, propranolol, or phenobarbitat. Approximately 90% of an oral dose of nizatidine is excreted in the unne within 12 hours. About 60% of an oral dose and 77% of an i.v. dose of nizatidine is excreted as unchanged drug. The elimination half-life is i to 2 booms and the systemic ptasma clearance is about 5OLUbour. The volume of distnbution is 0.8 to 1.5Ulkg. Since nizatidine is primanly excreted in the unne, renal impairment significantly prolongs the half-life and decreases the clearance of nizatidine. In anephnc individuals with creatinine clearance less than 10 mUlmin., the haif-life is 3.5 to 11 boors, and the plasma clearance is 7 to 14 Llhour. The dose sbould be adjusted in patients with moderate or severe impairment of renal function (see Dosage). The pharmacokinetic profile for nizatidine in the eldedy wet sot significantly different from the profile iv younger normal subjects. Gastric acid suppressorn correlates directly with nizatidine doses from 75 to 350 mg. Oral doses 01 100 mg or 1.3 mg/kg suppressed gastric acid secretion in sham fed volunteers for 3 hours after the dose. The duration of acid suppresoion directly correlates with the nizatidine dose. 300 mg nizatidine suppressed acid secretion almost entirely earl in the day, and the suppression persisted about 10 hours. Noctumal acid was suppressed for 10 to 12 boors after 300 mg nizatidine. Treatment for up to 2 weeks with nizatidine 600 mg daily did not influence the serum concentrations o1 gonadtropins, prolactin, growth hormone, antidiuretic hormone, cortisol, trilodothyronine, thyroxin, testosterone, 5 cx-dihydrotestosterone, androstenedione or estradiol. Indications: 'Axid' is indicated in the treatment of conddtions where a controlled reduction of gastnc acid secretion is required for ulcer healing and/or pain relief: acute duodenal ulcer, acute benign gastnc ulcer, and prophylactic use in duodenal ulcer. Contraindilcatlons: Nizatidine is contraindicated for patients with known hypersensitvity to the drug and should be used with caution in patients with hypersensitivity to other 1-2-receptor antagonists. Precautions: Gastric ulcer: Where gastric ulcer is suspected the possibility of malignancy should be excluded before therapy with nizatidine is instituted. Pregnancy and LactatIon: The safety of nizatidine during pingnancy has not been established. Reproduction studies performed in rats and rabbits at doses up to 300 times the human dose have revealed no evidence of impaired fertility or teratogenicity. If the administration of nizatidine is considered to be necessary, its use requires that the potential benefits be weighed against possible hazards to the patient and to tbe fetus. Nizatidine is secreted in human breast milk in proportion to matemal plasma concentrations ( 50 20 - 50 < 20

Acute 300 mg/day 150 mg/day 150 mg/2nd day

CAN MED ASSOC J 1990. 142 (8)

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You and your practice partner: get it down on paper.

THE LAW * LE DROIT You and your practice partner: Get it down on paper Fran Carnerie, MHSc, LLB 'In my view, professionals such as doctors, dentists...
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