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Treating non-residents of Canada
An article for physicians by physicians
Originally published December 1998 / Revised August 2008
IS0446-E

Of interest to all physicians

Introduction

Advances in technology and the opening of international borders have created increased opportunities for physicians to provide care to non-residents of Canada. These opportunities, however, create increased risk for medico-legal difficulties arising outside of Canada and these can be very costly.

It is important for members to understand that the CMPA assists its members in the event of medico-legal difficulty arising in Canada as a result of professional work done in Canada. The CMPA is not structured to assist with problems that arise outside Canada, or that result from care given outside of Canada. Legal actions outside Canada, in the United States in particular, can be prohibitively costly.

Who is considered a non-resident of Canada?

For the purposes of CMPA principles and guidelines, a non-resident is:

• An individual who is ordinarily a resident outside of Canada.
• An individual who is not living in Canada, and has never lived in Canada.
• An individual who has been residing outside of Canada for a number of years, and may have a residence, career, and/or family in the foreign country.
• An individual who ordinarily resides outside of Canada but who comes to Canada for vacation or work for temporary periods of time.

Who is a resident of Canada?

An individual who lives in Canada on a full-time basis would generally be considered a resident of Canada.

There are occasions where individuals who do not currently live in Canada on a full-time basis may be considered residents of Canada for the purpose of the Association’s non-resident principles. Individuals who are formerly residents of Canada, but who are not living in Canada (12 months of the year) at the time they seek elective medical care in Canada, may be considered to have a close connection to Canada and may be deemed a resident of Canada for the purpose of the Association’s non-resident principles.

In assessing whether or not the individual has a “close connection to Canada,” the following factors may be considered:

• Is the individual a Canadian citizen or been granted immigration status by the Canadian government?
• Is the individual residing in Canada full-time while attending a recognized Canadian educational institution?
• Has the individual recently or previously lived in Canada for an extended period of time?
• Does the individual maintain a residence in Canada?
• Does the individual have family members in Canada?
• Does the individual have a previous doctor-patient relationship with the Canadian physician?
• Does the individual have a valid provincial/territorial health card?

The member should be in contact with the CMPA when uncertain if an individual has a “close connection to Canada” as no one factor is determinative.

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Guiding principle

Pursuant to its by-law, all assistance extended to members of the CMPA in medico-legal matters is discretionary. The following is intended to provide guidance to physicians as to how the Association will in general consider requests for assistance in relation to medico-legal matters that are brought by U.S. and other non-residents. Members who may have occasion to care for non-residents must carefully review this guiding principle.

Matters brought in Canada

1. Where a matter is brought in Canada (i.e., through the courts, licensing bodies or other administrative tribunals of a Canadian province or territory) by a non-resident in respect of care provided in Canada, the Association will generally extend assistance to the member, in accordance with the by-law of the Association.

Matters brought outside of Canada

1. Where the matter is brought in the U.S. or in another foreign jurisdiction (i.e., through the courts, licensing bodies or other administrative tribunals of a U.S. or other foreign jurisdiction), the Association will generally decline to extend assistance to the member, in accordance with the by-law of the Association.
2. However, the Association will generally extend assistance to members who treat non-resident patients in emergent/urgent circumstances, provided that:
1. the care was provided in Canada; and
2. the member made reasonable efforts, in the circumstances, to obtain an executed Governing Law and Jurisdiction Agreement in a form satisfactory to the CMPA, where the member knew or ought to have known that the patient was ordinarily resident outside of Canada.
3. The Association may consider exercising its discretion to extend assistance in other exceptional circumstances as may be determined by Council from time to time, provided that:
1. the care was provided in Canada; and
2. the member made reasonable efforts, in the circumstances, to obtain an executed Governing Law and Jurisdiction Agreement in a form satisfactory to the CMPA, where the member knew or ought to have known that the patient was ordinarily resident outside of Canada.
4. The Association will not consider exercising its discretion to extend assistance when a member has, directly or indirectly:
1. solicited the treatment of a non-resident patient;
2. actively undertaken or offered to undertake the treatment of a non-resident patient; or
3. encouraged the creation of a doctor-patient relationship with a non-resident patient.
5. For the purposes of this guideline, “solicit the treatment of a non-resident patient,” “actively undertake or offer to undertake the treatment of a non-resident patient,” and "encourage the creation of a doctor-patient relationship with a non-resident patient” include:
1. providing care to a non-resident patient in circumstances where the care could reasonably be provided outside of Canada;
2. taking steps to advertise in the foreign jurisdiction or directing advertising meant to attract non-resident patients (including in a telephone directory, newspaper, trade magazine, website, or any other medium);
3. facilitating pre-treatment and/or post-treatment arrangements in the foreign jurisdiction; or
4. quoting prices for surgical treatment or other care in the currency of that foreign jurisdiction in any advertising or promotional materials.
6. In cases where assistance is extended, consistent with its general discretion in all such matters, the Association may limit or decline to assume payment of any judgment or settlement amount in relation to any matter brought outside of Canada.

Care provided outside of Canada

1. The Association will generally decline to extend assistance in relation to care provided outside of Canada, regardless of where the action is brought, subject to the following exceptions.
2. However, the Association will generally extend assistance to members who provide care outside of Canada as a Good Samaritan.
3. In a limited number of instances, as may be determined by Council from time to time, the Association may extend assistance in relation to matters regarding care provided outside of Canada. Examples include: missionary work; embassies; military; and international disasters.  In this regard, members are expected to confirm their eligibility for assistance with the Association prior to leaving Canada.

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Obstetrical care for non-residents of Canada

Many members have called the CMPA asking about their eligibility for assistance if they have medico-legal difficulties as a result of providing obstetrical care to a non-resident of Canada.

If a member provides obstetrical care to a non-resident and then, as a result of that care, is named in a legal matter brought in Canada, the CMPA will generally assist the member, in accordance with its by-law and general principles. However, if the legal matter is brought outside Canada (in a foreign jurisdiction), the Association will generally decline to assist the member.

Exceptions with legal actions brought in foreign jurisdictions

There are some exceptional circumstances, however, where the Association will assist members with legal matters brought outside Canada resulting from obstetrical care given in Canada to a non-resident. The following are examples of a few such exceptions.

Emergent or urgent care: Non-resident patients who present in labour or with a complication of pregnancy are considered to be in emergent or urgent circumstances. In these cases, if a member provides care and then faces legal action as a result, either in or outside Canada, the Association will generally extend assistance providing the member has made reasonable efforts, under the circumstances, to have the non-resident complete the CMPA's Governing Law and Jurisdiction Agreement in a form satisfactory to the Association.

Caring for mothers of passport babies: The media have been reporting on the phenomenon of “passport babies,” or babies born to women who travel from outside Canada to deliver their babies at local hospitals. As Canada grants citizenship to anyone born on its soil, these babies are instant citizens and afforded certain privileges. Women having passport babies may be divided into two groups: those who come on their own and make health care arrangements once they land in Canada, and those who participate in “birth tours” where they pay a “tour operator” to pre-arrange their trip to Canada, including their health care, while staying here.

Women who arrive independently and seek health care after arriving in Canada often remain in the country until they go into labour. Therefore, failing to provide them with prenatal care, although not truly urgent or emergent in nature, increases the possibility of the patient developing an urgent or emergent condition. In these situations, the Association will generally assist members who provide care, whether a resulting legal matter is brought in or outside Canada. Members should make a reasonable effort to have the patient complete the CMPA’s Governing Law and Jurisdiction Agreement in a form satisfactory to the Association.

The issue is different for women on arranged “birth tours.” In these situations, arrangements for health care have been made through a tour operator in advance of the patients’ arrival in the country. Physicians entering into an arrangement with tour operators to provide such obstetrical care have, either directly or indirectly, solicited the treatment of a non-resident patient, actively undertaken or offered to undertake the treatment of a non-resident patient, or encouraged the creation of a doctor-patient relationship with a non-resident patient. Therefore, the Association will generally not assist if the member is a defendant in a matter brought outside of Canada.

Caring for foreign nationals temporarily living in Canada: Members have also been asking about treating foreign nationals who are temporarily living and/or working in Canada. For example, members may be asked to treat the pregnant spouses of American football players living in Canada during the football season, the pregnant spouses of Swedish hockey players living in Canada during the hockey season, or a pregnant female working in Canada on a contract. In these situations, the woman is not a Canadian citizen, but is a temporary resident of Canada.

Members can provide obstetrical care in these circumstances knowing they are generally eligible for assistance whether they are sued in Canada or a foreign jurisdiction. In these situations, as the patient is a temporary resident, the member should make a reasonable effort to have the patient complete the CMPA's Governing Law and Jurisdiction Agreement in a form satisfactory to the Association.

For specific advice, call the CMPA.

In summary, for obstetrical patients:

A member providing obstetrical care to a non-resident patient will generally be eligible for CMPA assistance if:

• the patient is in labour or with a complication of pregnancy in an emergent or urgent circumstance.
• the patient is likely to remain in Canada for the duration of her pregnancy and labour and the member has not, directly or indirectly, solicited the treatment of a non-resident patient, actively undertaken or offered to undertake the treatment of a non-resident patient, or encouraged the creation of a doctor-patient relationship with a non-resident patient.
• the patient is temporarily residing and/or working in Canada and plans to return to her home country.

A member providing obstetrical care to a non-resident patient will generally not be eligible for CMPA assistance if:

• the patient plans to remain in Canada for the duration of her pregnancy and labour and the member has, either directly or indirectly, solicited the treatment of the patient, actively undertaken or offered to undertake the treatment of the patient, or encouraged the creation of a doctor-patient relationship.

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Soliciting business via foreign Web sites

If a CMPA member is sued by a patient in a foreign country, and the member solicited the business from this foreign country, the member will not be eligible for assistance.

Soliciting business includes: advertising in the foreign country (including in the Yellow Pages); pre-treatment arrangements undertaken in the foreign country (either alone or with an associate physician); quoting prices for surgical interventions in foreign currency on the member's website; and maintaining a website without including a disclaimer that the content is intended for a Canadian audience only.

The use of the Internet to attract foreign patients is increasing. Accordingly, CMPA members who advertise on or have their websites linked to foreign sites are reminded to include a disclaimer that could be worded as follows:

This is a Canadian website. Its content is intended only for residents of Canada.

Examining foreign performers

In recent years foreign film and television companies have discovered Canada is a cost-effective place to create their work. Physicians in major shooting locations have discovered that performing independent medical examinations for these companies is a way to supplement their incomes.

These examinations are not generally solicited and are not considered doctor-patient relationships; they are third-party examinations requested and paid for by the production companies. The examinations are often needed so the companies can obtain insurance for key personnel, notably highly-paid actors, many of whom are based in the U.S.

If a production was stopped because an actor became ill and couldn't perform, the financial losses could be significant. Actors, production companies and/or insurers could try to recoup their losses by suing the physician, alleging the loss was due to a failure to diagnose a medical condition. Any individual or business from a foreign country could seek redress through that country's courts. This may also occur with Canadian companies that are affiliated with foreign companies.

The CMPA will normally assist a member in the event of medico-legal problems arising in Canada as a result of professional work done in Canada, but not when these medico-legal problems arise outside of Canada.

The CMPA advises physicians to have the person being examined sign the CMPA's Governing Law and Jurisdiction Agreement that ensures any disputes, claims or legal actions will be brought in the jurisdiction where the physician practises. Of course, this does not guarantee that foreign actions won't be brought; it is merely a powerful argument in successfully restoring jurisdiction to Canada.

To protect against the risk of foreign litigation, physicians performing independent medical examinations on foreign performers should also:

• Obtain, through a broker, a professional liability insurance policy that would provide the physician with insurance coverage for any litigation brought in a foreign country arising out of the work in examining performers and completing cast medical insurance forms.
• Seek an indemnification agreement in respect of such medical examinations from both the production and insurance companies.
• Request that the production and insurance companies enter into an agreement requiring that any disputes, claims or legal actions be brought in the jurisdiction where the physician practises, in accordance with the laws in that jurisdiction.

These examples are presented to help members interpret and apply the CMPA’s general principles on treating non-residents. As each decision on whether to assist a member is made on a case-by-case basis, members wanting advice are encouraged to call the CMPA at 1 800 267-6522 to discuss their specific situation.