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I. Introduction
Hospitals are hazardous places. They house patients in complex environments rife with life-threatening diseases and toxic pharmaceuticals. Significant numbers of hospital patients have compromised immune systems and hence are susceptible to disease, including infectious disease. The spread of disease in hospitals is facilitated by the proximity of patients to one another and the density of the patient population. High risk, often life-threatening medical procedures, are routinely carried out. Hospital services are delivered in dynamic, fast paced environments that too often tax hospital service providers beyond their service limits. Both by virtue of their illnesses and the "realities" of hospital environments, patients are extremely vulnerable. It is not surprising, therefore, that despite significant efforts to mitigate risk, the incidence of adverse events and morbidity from adverse events in hospitals is distressingly high. In Canada, one out of every thirteen patients in nonspecialized acute care hospitals experience adverse events and, annually, death ensues for thousands of Canadians.1
Increasingly, hospitals, health care authorities, and health safety institutes are developing and implementing programs and strategies designed to mitigate hospital risk.2 Legal regulation of both hospital environments and activities also contributes to the mitigation of risk. Tort law has a high profile in this task. Less important but not unimportant is fiduciary law. Together, these two bodies of judge-made law improve safety in hospitals by minimizing risk (tort law) and by requiring that service providers be dedicated to their patients' "best interests" (fiduciary law).3 Recent developments in fiduciary law, buttressed by parallel developments in tort law, suggest unequivocally that fiduciary doctrine has expanded to include positive duties of disclosure and protective responsibility.4 Where fiduciaries are burdened by affirmative responsibilities, much more is expected of them as guardians of their beneficiaries' interests than has historically been the case. Affirmative obligation can import a broad duty to protect beneficiaries, not only from potential misconduct of fiduciaries themselves, but from potentially harmful behaviour of third parties and even other sources of potential harm. In the health care context, such an affirmative duty has the potential to enhance the security and safety of hospitalized patients.5
Discovery and both reporting and disclosure of risk, harm and error are the sine qua non of an effective patient safety strategy. It is disconcerting that...