Legal and regulatory proceedings
They can't sue me outside Canada, or can they? Considerations when treating or prescribing to non-residents
Originally published September 2011 / Revised October 2016
Given advances in technology and communications, and the ease and speed of international travel, there are increased instances when Canadian physicians might provide healthcare to patients who are not residents of Canada.
While the CMPA generally assists members with medical-legal difficulties arising in Canada as a result of professional work done in Canada, the Association is not structured to assist when legal actions are initiated elsewhere. Legal actions brought outside of Canada, particularly those launched in the United States, can be extremely costly.
A physician is generally not eligible for CMPA protection when a non-resident patient launches a legal action outside Canada regarding treatment provided by the physician in Canada. There are some instances, however, where the CMPA will exercise its discretion and assist members with legal actions outside Canada—if the care provided is emergent or urgent, or in exceptional circumstances, if the required care is not reasonably available in the patient's own country.
To illustrate, consider a Canadian physician who develops a new procedure for the treatment of Parkinson's disease. The procedure, still in the trial phase and not yet available elsewhere, attracts the attention of a resident of the United States who wants to travel to Canada for the treatment. While this particular procedure may not be available in the U.S., other treatments for Parkinson's disease are available in that country. A CMPA member who treats the U.S. resident patient using the new procedure would generally not be eligible for CMPA assistance in the event that the patient brought a legal action in the U.S.
Another example is when U.S. residents request that a Canadian physician co-sign a prescription written in the U.S. This may occur because some medications are considerably less expensive in Canada. Members are cautioned that co-signing these prescriptions—thus arguably approving the indication for the medication—may establish a doctor-patient relationship, even though the U.S. resident was not asked for a history and was not examined. This may make the physician potentially liable in the U.S. for difficulties flowing from the use of the medications. In the event of a legal action commenced in the U.S., the physician may not be eligible for assistance from the CMPA. In addition, the physician may also be exposed to scrutiny by provincial/territorial regulatory authorities (Colleges) in Canada.
There are, however, ways that physicians can reduce their medical-legal exposure when treating non-resident patients in Canada. Additional information on strategies to minimize risk is provided in the article "Treating non-residents of Canada."
The bottom line
- While the CMPA generally assists members with medical-legal difficulties arising in Canada as a result of professional work done in Canada, the Association is not structured to assist when legal actions are initiated outside Canada. Before treating a non-resident patient, members should make reasonable efforts to have the patient sign the Governing Law and Jurisdiction Agreement.
- The CMPA will exercise its discretion and assist members with legal actions outside Canada if the care provided in Canada was emergent or urgent, or it may consider extending assistance in other exceptional circumstances.
- The CMPA will not consider extending assistance outside Canada when a member has, directly or indirectly, solicited, actively undertaken, or offered to undertake the treatment of a non-resident patient. For example, if a member solicits patients from a foreign country (e.g. via advertising or the Internet), or encourages the creation of a doctor-patient relationship, the member will not be eligible for CMPA assistance if sued outside Canada. Members who have a website promoting their services should include a disclaimer on the site stating that the content is intended only for residents of Canada.
Governing law and jurisdiction
When a non-resident patient initiates a legal action outside of Canada against a Canadian physician arising from care provided in Canada, the physician may attempt to have the claim dismissed on the basis that the claim should have been brought in Canada.
In deciding whether the claim should be allowed to proceed in the foreign jurisdiction, the foreign court may consider many factors including whether the physician:
- solicited the patient to come to Canada for treatment
- advertised services in the foreign jurisdiction
- provided any care to the patient outside of Canada
- has a business arrangement outside of Canada (e.g. partnership with non-Canadian clinic, arrangements with U.S. billing service, etc.).
For example, in one case where a U.S. resident patient brought a legal action in the U.S. against a Canadian physician, the court took into consideration that the Canadian physician had offices in both Canada and New York. In addition, the physician provided treatment to the patient in both Canada and New York. Based on these facts, the court concluded the physician had a close connection to the state and it was reasonable to allow the action to proceed in New York.
Members providing care to non-resident patients in Canada should ask the patient to complete and sign a Governing Law and Jurisdiction Agreement. The Agreement is aimed at helping to establish Canadian jurisdiction for any potential legal actions that may result from providing care or treatment to non-resident patients.
Members should explain to their patients that the purpose of the Governing Law and Jurisdiction Agreement is to agree that legal actions against the physician will be brought in Canada, where CMPA assistance is generally available. Of course, this does not guarantee that foreign actions won't be brought; the Agreement is, however, a powerful argument in successfully restoring jurisdiction to Canada.
Members are also encouraged to request that patients from other countries who are temporarily living in Canada execute the Governing Law and Jurisdiction Agreement. This may include family members of professional athletes or actors or performers from other countries who may be working for extended periods in Canada.
Urgent and emergency care
Members will generally be eligible for CMPA assistance when they treat non-resident patients who come to Canada for reasons other than to obtain medical care and who unexpectedly develop medical problems.
If it is unreasonable for the patient to return to their home country for treatment, the CMPA would consider such care as emergent or urgent. Examples of such situations include the patient developing an acute condition, being involved in a motor vehicle collision, being in labour, complications related to pregnancy, or an acute exacerbation of a chronic disease. Members are advised to make reasonable efforts, under the circumstances, to have the patient sign a Governing Law and Jurisdiction Agreement.
Legal actions brought in Canada
Members are generally eligible for assistance from the CMPA when a lawsuit is brought in Canada by a non-resident or a resident patient.
Ignoring a claim in another country
It is unwise to ignore legal documents from foreign countries, including the United States. Failure to respond to a subpoena or a claim may result in monetary consequences enforceable in Canada. In some circumstances, a person who fails to respond to a foreign court document may be apprehended when attempting to enter that country. No matter the circumstances, members are encouraged to contact the CMPA for advice whenever they encounter medical-legal problems.
More information about CMPA's assistance principles is provided in the article "Treating non-residents of Canada." Members are encouraged to call the CMPA at 1-800-267-6522, or use the Medical-legal assistance/web mail form for advice about their specific situation.
Who is considered a non-resident of Canada?
Any individual who:
- is ordinarily a resident outside of Canada
- is not living in Canada and has never lived in Canada
- has been residing outside of Canada for a number of years, and may have a residence, career, or family in the foreign country
- ordinarily resides outside of Canada but who comes to Canada for vacation or work for temporary periods of time
Who is considered a resident of Canada? Who has a close connection to Canada?
Some of the factors to be considered would include any individual who:
- has been living full-time in Canada
- holds Canadian citizenship or has been granted immigration status by the Canadian government
- maintains a residence in Canada
- has been residing in Canada full-time to attend a recognized Canadian educational institution
- has recently or previously lived in Canada
- holds a valid provincial or territorial health card