Medical Civil Liability

The Evolving Concept of Medical Fault

Under review

No law or regulation clearly defines the notion of medical fault. Thus, we must look to jurisprudence and doctrine for its definition. Until the middle of the 20th  century, the concept of medical liability was almost nonexistent in jurisprudence. In 1930, the Supreme Court stated the following: “As the authors have said, in serious cases of surgery, only honor stands between the physician’s conscience and his patient. Between the two there is no judge but God.” Caron c. Gagnon, (1930) 68, C.S., 158.

Yet with time, changes occurred gradually. The rules of civil liability were applied to medical practice in cases of “serious, gross and inexcusable” negligence. In 1948, the
Supreme Court established, while referring to physicians as “men of art”, that,“Men of art may not be sued when they perform a professional act except to the extent that they commit gross negligence in and of itself, apart from any academic controversy.” Fafard c. Gervais, (1948) C.S., 128, 129.

In 1957, the principle of medical civil liability was established by the Court of Appeal, stating, “The general rule is therefore that professional negligence is a fault like any other.”« X » c. Mellen, (1957) B.R. 369. In the same decision it also established that  the physician’s liability was contractual in nature: “As soon as the patient enters into the physician’s office, a contract of professional care arises between the physician and the patient by and of itself.”

The “medical contract” was therefore recognized as potentially introducing rights and obligations of a contractual nature into the professional physician-patient relationship, since the patient is obliged to cooperate in the investigation and treatment, and the physician is obliged to provide quality care in return for remuneration. It should be emphasized that “extracontractual” civil liability imposes the same obligation to provide quality care, even without a contract. This is the case in the emergency room, for example, where the unconscious patient cannot sign a contract with the emergency specialist who assumes responsibility for his or her care.

 In 1965, the Court of Appeal defined the four obligations inherent in the contract of professional careBeausoleil c. La Communauté des Soeurs de la Charité de la Providence, (1965) B.R. 37., and these can be summarized as follows:

  • the obligation to inform the patient and obtain his or her consent;
  • the obligation to provide attentive, prudent and diligent care in accordance with  scientific data, save under exceptional circumstances;
  • the obligation not to abandon the patient;
  • the obligation to respect confidentiality.

Therefore, each time a patient takes legal action against a physician for professional liability, he or she must prove the existence of fault, that is, a breach of one or the other of these four obligations. A breach is defined essentially as the fact of not having met the standards of the profession.

As a result, it must be determined whether the physician behaved as a normally prudent, competent and diligent physician would have in similar circumstances. Using objectivity as the criterion, a family physician is compared to another family physician, or a medical specialist is compared to a physician practicing in the same specialty. Jurisprudence shows that, in assessing the situation, one must think back to the moment when the events occurred and take into account elements that were known then or that should have been known then, and not elements that made themselves known subsequently Lapointe c. Hôpital Le Gardeur, (1992) 1 R.C.C. 351. The physician should not be judged using the “retrospectoscope”, that is, accused retrospectively of having performed or not performed a given act.

Furthermore, one must have recourse to expert witnesses—physicians known for their competence—who will then express their opinion on the act the physician is accused of. Did it meet practice standards, or was it an uncommon practice but still recognized by the profession and in keeping with scientific knowledge?

The judge renders the decision after having heard the lay witnesses and expert witnesses of both parties, and after having examined all the relevant documentation, all the medical or hospital records and articles in medical journals submitted as evidence. He or she then determines if there was fault and injury, and if there is a causal link between the two. The judge must also evaluate the injury sustained and quantify it in dollars.

If the judge concludes the existence of a fault, an injury and a causal link, he or she will order the defendant to pay the claimant the sum of money required for full compensation. Either party may appeal this decision in order to contest the liability, the amount granted, or both.