Medical civil liability is first and foremost a system of reparation for an injury due to a fault. Therefore, the victim must first prove the existence of a medical fault in order to win his or her case before the courts.
The Civil Code sets the rules for civil liability:
“Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to the person and is liable to reparation for the injury, whether it is bodily, moral or material in nature [...]” (Art. 1457).
This article establishes the three elements essential to a lawsuit in civil liability:
— a fault that can be defined as a failure to fulfill a pre-existing duty;
— injury, for the law in civil liability seeks to repair the damage. If there is no damage to repair, there is no basis for legal action, at least not in civil liability;
— a causal relationship between the fault and the damage.
There are also compensation plans that do not consider fault, where a person is compensated for the injury sustained without having had to prove the presence of fault on the part of the person responsible. In the compensation plan for work accidents, for example, a person merely has to demonstrate that the accident “arises out of or in the course of” his work in order to obtain the compensation provided for. Similarly, in 1978, Québec adopted a no-fault compensation plan for victims of automobile accidents so as to eliminate the problem of insolvent automobile drivers and to avoid interminable civil liability court cases. Many have proposed a similar system to compensate victims of medical errors. The debate is ongoing.
One noteworthy example is the particular situation of the person who acts as a “good Samaritan”. Article 1471 of the Civil Code reads as follows:
“Where a person comes to the assistance of another person or, for an unselfish motive, disposes, free of charge, of property for the benefit of another person, he is exempt from all liability for injury that may result from it, unless the injury is due to his intentional or gross fault.”