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Population Health Ethical Legal And Organizational Aspects Of Medicine PheloMedical LawNegligence

Negligence in Canadian Medical Practice

Introduction to Medical Negligence

For MCCQE1 preparation, understanding medical negligence is crucial under the Population Health, Ethical, Legal, and Organizational Aspects of Medicine (PHELO) category. Medical negligence constitutes a civil wrong (tort) rather than a criminal offense (though criminal negligence exists, it is rare).

In the Canadian context, medical negligence is defined as the failure of a physician to provide the quality of care that would be expected of a reasonably competent physician under similar circumstances, resulting in harm to the patient.

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Canadian Context: Unlike the United States, where malpractice insurance is commercial, the vast majority of Canadian physicians are defended by the Canadian Medical Protective Association (CMPA). Understanding the role of the CMPA is vital for the CanMEDS Professional Role.

The Four Elements of Negligence

To succeed in a medical malpractice lawsuit in Canada, the plaintiff (patient) must prove all four of the following elements on a “balance of probabilities” (more likely than not, or >50% probability).

Duty of Care

A legal obligation imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others.

  • Doctor-Patient Relationship: Once a physician agrees to see a patient, a duty of care is established.
  • Emergencies: In Canada, duty of care extends to emergency situations within a hospital setting, though “Good Samaritan” legislation varies by province for bystanders.

Determining the Standard of Care

The Standard of Care is the most frequently contested element in Canadian courts. It is determined by the court, often relying on expert witness testimony.

Key Factors Influencing Standard of Care

  1. Peer Support: Would a respectable body of medical peers support the action taken?
  2. Guidelines: Clinical Practice Guidelines (CPGs) are evidence, not law. Following guidelines is a strong defense, but blindly following them when clinical judgment suggests otherwise can be negligent. Conversely, deviating from guidelines requires justification.
  3. Resource Availability: The standard takes into account the resources available (e.g., a rural ER physician is not expected to have the same immediate diagnostic capabilities as a tertiary care specialist).

The “Error in Judgment” Defense

In Canadian law, an honest error in judgment is not necessarily negligence. If a physician exercises reasonable care and clinical judgment but arrives at a wrong diagnosis or chooses a treatment that fails, they are not liable, provided their process was reasonable.

A failure to obtain informed consent can lead to a negligence claim (failure to warn) or a battery claim (though battery is reserved for non-consensual touching/treatment).

The Reibl v. Hughes Standard

The Supreme Court of Canada (1980) established the Modified Objective Patient Test for causation in consent cases.

  • The Question: Would a reasonable person in the patient’s particular circumstances have declined the treatment if they had been fully informed of the risks?
  • Significance: It is not enough for the patient to say, “I wouldn’t have done it.” The court looks at what a reasonable person in that specific situation (age, income, family status) would have done.
FeatureNegligence (Failure to Warn)Battery
DefinitionFailure to disclose material risksTouching without any consent
IntentUnintentionalIntentional (to touch)
ExamplePatient agrees to surgery but wasn’t told of a 5% stroke riskSurgeon performs surgery on the left leg instead of the right
FrequencyCommon in malpractice suitsRare in medical contexts

Vicarious Liability in Canada

  • Hospitals: Generally, hospitals are vicariously liable for the negligence of their employees (nurses, technicians, employed staff).
  • Physicians: Most Canadian physicians are independent contractors with privileges, not employees. Therefore, hospitals are typically not vicariously liable for a doctor’s negligence. The doctor is personally liable (backed by the CMPA).

Strategies to Prevent Negligence (Risk Management)

For the MCCQE1, you must demonstrate knowledge of risk management strategies.

Step 1: Meticulous Documentation

“If it isn’t written, it didn’t happen.” Documentation should be contemporaneous, legible (or electronic), and objective. Document the thought process (e.g., “Ruled out PE because Wells score is low”), not just the findings.

Step 2: Effective Communication

Many lawsuits stem from a breakdown in the physician-patient relationship. Ensure clear explanations, empathy, and confirm patient understanding (teach-back method).

Step 3: Follow-up Systems

Implement robust systems for tracking test results and referrals. A “no news is good news” policy is legally risky and discouraged.

Document the discussion of material risks, benefits, alternatives, and the consequences of refusal.

Canadian Guidelines & Resources

The Canadian Medical Protective Association (CMPA) provides the gold standard guidance for risk management in Canada.

CMPA Good Practices Guide

  1. Investigate: Order appropriate tests based on differential diagnoses.
  2. Refer: Consult or refer when the problem exceeds your scope or expertise.
  3. Communicate: Keep the patient informed about the diagnosis, prognosis, and treatment plan.
CMPA  = Canadian Medical Protective Association
CPG   = Clinical Practice Guideline
SOC   = Standard of Care
LOC   = Loss of Consciousness (or Level of Care)
HCP   = Health Care Professional

Key Points to Remember for MCCQE1

  • Burden of Proof: The plaintiff (patient) must prove negligence on a balance of probabilities.
  • Trainee Liability: Residents are held to a standard commensurate with their training but are judged against a reasonable resident in that program/year.
  • Apology Legislation: Most Canadian provinces have “Apology Acts” which state that an apology is not an admission of liability in civil court. Physicians are encouraged to disclose errors and apologize (express regret) without admitting legal fault.
  • Limitation Periods: Generally, patients have 2 years from the time they knew (or ought to have known) of the injury to file a claim. This varies for minors and those with disabilities.

Sample Question

Clinical Scenario

A 52-year-old man presents to a walk-in clinic complaining of new-onset “crushing” chest pain radiating to his left arm and jaw. He has a history of hypertension and hyperlipidemia. The physician on duty, feeling overwhelmed by a full waiting room, diagnoses the patient with gastroesophageal reflux disease (GERD) without performing a physical exam or ordering an ECG. The physician prescribes a proton pump inhibitor and sends the patient home. Two hours later, the patient suffers a massive myocardial infarction and dies at home.

Lead-in

In a subsequent legal action, which of the following elements would be the easiest for the plaintiff to prove to establish negligence in this case?

Options

  • A. Malice
  • B. Breach of the standard of care
  • C. Intentional harm
  • D. Battery
  • E. Contributory negligence

Explanation

The correct answer is:

  • B. Breach of the standard of care

Detailed Analysis

  • B. Breach of the standard of care: This is the correct answer. The standard of care for a physician presented with a middle-aged male with classic cardiac symptoms (crushing chest pain, radiation, risk factors) mandates, at a minimum, a physical exam and an ECG (or immediate referral to an ER). Failing to perform these basic investigations is a gross deviation from what a reasonable physician would do. This breach is objectively clear and easy to prove.
  • A. Malice: Malice implies ill will or a desire to cause harm. There is no evidence the physician wanted to hurt the patient; they were likely rushed or incompetent in that moment. Negligence is unintentional.
  • C. Intentional harm: Similar to malice, negligence is a tort of unintentional acts. Proving intent would be impossible and incorrect here.
  • D. Battery: Battery requires touching without consent. The patient consented to the visit and the prescription. The issue is the quality of care, not the lack of consent for physical contact.
  • E. Contributory negligence: This is a defense used by physicians, arguing the patient contributed to their own outcome (e.g., by not taking meds). It is not an element the plaintiff proves; rather, the defense would try to prove it (unsuccessfully here).

Study Checklist

  • Understand the difference between Negligence and Battery.
  • Memorize the 4 elements of negligence (Duty, Breach, Causation, Damages).
  • Review the concept of the “Reasonable Physician”.

References

  1. Canadian Medical Protective Association (CMPA). The duties of a doctor. Available at: cmpa-acpm.ca 
  2. Picard, E. & Robertson, G. (2022). Legal Liability of Doctors and Hospitals in Canada. 5th Edition. Thomson Reuters.
  3. Supreme Court of Canada. Reibl v. Hughes, [1980] 2 S.C.R. 880.
  4. Royal College of Physicians and Surgeons of Canada. CanMEDS 2015 Physician Competency Framework.
  5. Medical Council of Canada. MCCQE Part I Objectives: Legal, Ethical and Organizational Aspects of Medicine.
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