Legal and regulatory proceedings
The Canadian medical liability system: What makes it work?
An article for physicians by physicians
Originally published June 2010 / Revised March 2015
In delivering care, patient well-being is at the forefront of physicians' minds and doctors are guided by the age-old dictum of "do no harm." However, medicine is not risk-free and there are occasions when patients experience unexpected and unintended harm. An effective healthcare 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 healthcare institutions and healthcare providers are held accountable for their actions in a fair manner, provides appropriate compensation for patients proven to have been harmed through negligent clinical care, and supports improvements in healthcare safety.
The Canadian medical liability system is viewed as being one of the more effective in the world. Its success is, in part, because it takes into consideration the particularities of our cultural, economic and policy environment. While we should learn from other systems, 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 patient safety incidents1 occur as a result of system failure, rather than individual failures, healthcare professions, institutions, and individual health providers 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,2 these two imperatives are complementary and contribute to safe care and increased public confidence.
In assessing the Canadian medical liability system, five criteria are helpful: contribution to safe medical care, professional accountability, just and fair process, patient compensation, and system affordability.
Contribution to safe medical care
Physicians are committed to delivering care safely. A key element in this commitment is learning from a patient safety incident 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 safe care.
The cornerstone of any self-regulated profession is adherence to established standards of practice and, within the healthcare context, this requires an effective accountability response to patient safety incidents. Such a response not only contributes to safe care, but it also promotes public confidence in the healthcare 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 healthcare professionals involved has been established, appropriate compensation is provided. For CMPA members, the Association provides compensation on members' behalf.
Several countries have experienced a breakdown of their medical liability system, largely due to financial difficulties. One of the main impacts of this breakdown has been a hindering of access to medical care. In contrast, Canada has benefited from an effective medical liability system that supports the delivery of safe care. In an increasingly complex and resource constrained healthcare environment, affordable medical liability protection has never been more important. The CMPA strives to deliver its services in the most cost-effective manner possible, recognizing the imperative for a value-for-money approach that reflects a commitment to the sustainability of the medical liability system. The CMPA is dedicated to working with others to address sustainability challenges, including championing sensible improvements that reduce overall system costs while respecting the interests of all parties.
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 safe care and, by leveraging its understanding of other liability systems, it advocates for system improvements that could further strengthen the Canadian model.
The Canadian medical liability system can and should evolve to respond to the changing needs of Canadians. While the Canadian system performs well, there are opportunities to enhance its fairness and effectiveness. The CMPA is committed to protecting the professional integrity of its members, within a system that respects their interests and those of their patients. The Association will remain engaged with stakeholders and continue to advocate for changes to strengthen and sustain Canada’s medical liability system.
- The World Health Organization provides terminology to facilitate the sharing and learning of patient safety information globally, and this terminology is recommended by the Canadian Patient Safety Institute. For clarity and consistency in patient safety discussions, the CMPA now uses these terms:
- Patient safety incident: An event or circumstance which could have resulted, or did result, in unnecessary harm to a patient.
- Harmful incident: A patient safety incident that resulted in harm to the patient. Replaces the term “adverse event” and "sentinel event".
- No harm incident: A patient safety incident which reached a patient but no discernible harm resulted.
- Near miss: A patient safety incident that did not reach the patient. Replaces “close call.”
- The CMPA has 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.