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The Canadian medical liability system: What makes it work?

An article for physicians by physicians
Originally published June 2010
W10-009-E

In delivering care, patient well-being is at the forefront of a physician’s mind and doctors are guided by the age-old dictum of “do no harm.”  However, while health care continues to become safer, medicine is not risk-free and there are occasions when patients experience unexpected and unintended harm. An effective health care system responds appropriately to such unfortunate circumstances, firstly by ensuring care is provided to the harmed patient and subsequently by examining what led to the unintended outcome, and making improvements to limit the likelihood of reoccurrences, if possible. An effective medical liability system ensures health care institutions and professionals are held accountable for their actions in a fair way, provides appropriate compensation for patients proven to have been harmed through negligent clinical care, and supports improvements in patient safety.

The Canadian medical liability system is viewed as being one of the more effective in the world. However, each national environment is unique and requires a professional liability system appropriate to it. The Canadian system reflects the particularities of our cultural, policy, and economic environment and, while we should learn from others, we should also recognize approaches that work in one country may not be as successful in another. Given the Canadian system has proven to be a world-class model of medical liability protection, what are its features?

Striking the right balance

Canada’s medical liability system supports improved care by both fostering learning and ensuring adherence to standards. As many adverse events occur as a result of system failure, rather than individual failures, health care professions, institutions and individual health professionals must learn from unintended outcomes and put in place measures to reduce their occurrence. At the same time, there is a requirement to ensure accountability among the institutions and individuals involved. Within the concept of a just culture of safety,¹ these two imperatives are complementary and contribute to safer care and increased public confidence.

In assessing the Canadian medical liability system, five criteria are helpful: contribution to safer medical care, professional accountability, just and fair process, patient compensation and system affordability.

Contribution to safer medical care
Physicians are committed to delivering care in the safest manner possible. A key element in this commitment is learning from an adverse event so that the likelihood of re-occurrence can be reduced. Learning requires a supportive environment in which the quality improvement discussions are protected from any accountability reviews of individuals. Every province and territory in Canada has, through either legislation or regulation, recognized the importance of this protected learning environment. This enables the systems-related “lessons learned” to be communicated through risk management programs, thereby supporting safer care.

Professional accountability
The cornerstone of any self-regulated profession is adherence to established standards of practice and, within the health care context, this requires an effective accountability response to adverse events. Such a response not only contributes to safer care, but it also promotes public confidence in the health care system. In appropriate circumstances, an examination of individual performance can identify remedial actions to improve that performance. Canada maintains strong accountability frameworks that reinforce standards of care.

Just and fair process
Physicians and their patients both have an expectation of being treated justly and with due regard for fair process. If patients have concerns they have not been afforded care to the standard expected, they have several avenues through which to express such misgivings, including complaining to a hospital or medical regulatory authority. They may also seek compensation through civil litigation. When faced with such complaints, physicians have a right to defend their professional integrity within a system that has clearly specified procedures that are fair and transparent. In Canada, mechanisms are in place to ensure just and fair treatment for all parties.

Compensation to injured patients
Unfortunately, there will be instances where patients have been harmed as a result of care that did not meet the standard. In these circumstances, the patient should have access to compensation and the Canadian system provides that access through civil litigation. If negligence on the part of the institutions or individual health care professionals involved has been established, appropriate compensation is provided. For CMPA members, the Association provides compensation on members’ behalf.
 
Affordability
While the medical liability systems in some other countries have experienced financial difficulties, the Canadian system has remained sustainable. Several factors contribute to this sustainability, including the improved safety of care; enhanced risk management; better communication between health care institutions, professionals and patients; and reasonable cost management measures. An important contributing element is the CMPA’s not-for-profit, mutual defence status wherein the financial costs and risks are borne collectively by our members.

The CMPA’s contribution

The CMPA plays an important role in ensuring, on behalf of our physician members, an effective medical liability system. By providing advice and assistance to our members, we help to ensure they can practise without fear of unwarranted retribution and, when negligent errors have been made, members can practise with the knowledge their patients will be compensated. By collecting only those funds necessary to meet members’ expected liabilities, the Association contributes to a cost effective system. Through its risk management and education efforts, the Association contributes to safer care and, by leveraging its understanding of other liability systems, it advocates for system improvements that could further strengthen the Canadian model.

Emerging threats

While the Canadian system performs well, it is increasingly under threat from changes that would undermine its effectiveness and expose both physicians and patients to greater risk. If adopted, proposals that would remove the legal protections afforded to quality improvement reviews would have a chilling effect on the just culture necessary to improve the safety of care. Efforts to restrict expert testimony during litigation would impinge on the just and fair process afforded to physicians, other health professionals and patients. Damage costs that are rising well above the rate of inflation threaten the financial sustainability of the system.

Faced with these and other threats, the CMPA remains committed to protecting the professional integrity of its members, within a system that respects their interests and those of their patients. The Canadian medical liability system can and should evolve to respond to the changing needs of Canadians and the CMPA will continue to advocate for changes that build on, rather than undermine, its current effectiveness.

1. The CMPA has recently published a booklet on ensuring a just culture of safety, Learning from adverse events: Fostering a just culture of safety in Canadian hospitals and health care institutions.