Legal and regulatory proceedings

Navigating legal or regulatory processes

If a patient relies on your professional opinion, you may have a duty of care

An article for physicians by physicians
Originally published March 2006 / Revised August 2008


Before giving advice on medical matters, even informally, physicians should be satisfied they have considered and documented the relevant information.

Of interest to all physicians

An eleven-year-old girl fell off an aboveground pool deck onto her outstretched arm. The emergency physician assessed her and noted a small puncture wound on the forearm. X-rays confirmed a fractured radius and ulna with minimal displacement.

The emergency physician showed the x-rays to the on-call orthopaedic surgeon who was in the department seeing another patient and asked if the alignment was acceptable. The surgeon was also told there was a wound to the forearm.

The surgeon looked at the x-rays, told the emergency physician the alignment seemed acceptable, and advised dressing the wound, casting it and arranging a clinic follow-up in one week. The surgeon's understanding was the wound was only an abrasion. He did not see or assess the patient.

The wound, in fact, was a significant finding, as it was a result of a compound (open) fracture. The girl went on to develop infection, compartment syndrome and tissue necrosis.

Family launches legal action, College complaint

The girl's family launched a legal action and, shortly thereafter, made a complaint to the regulatory authority (College). Because expert support could not be found, the legal action had to be settled on behalf of both physicians. The College was also critical of both of them.

The orthopaedic surgeon had difficulty accepting the College's decision, as he had not actually seen the patient. However, the College concluded he did indeed owe a duty of care to this patient, as he had heard about her case, viewed her x-rays and provided an opinion on care.

Duty of care may exist

Physicians should recognize a duty of care might exist even though they have not seen the patient directly.

In this particular case, the orthopaedic surgeon provided advice based on limited information and a review of x-rays, advice he ought to have known the emergency physician would rely on. The College ruled that, because he had provided this advice, he owed the patient a duty of care.

The CMPA recognizes advice given over the telephone or in "corridor consultations" is an important and necessary part of clinical practice. However, in providing such advice or consults a physician should be aware that a duty of care may arise. Ensure you have sufficient information to give the advice, and make reasonable efforts to document the information and advice given.


DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.