Yes, non-resident patients can sue Canadian physicians from outside Canada. Learn how to lessen the risks
Advances in technology, communication, and international travel have increased the instances where you, as a Canadian physician, might treat individuals who are not residents of Canada. In some of these instances, you may be at risk of the non-resident launching a lawsuit against you from another country.
While the CMPA generally assists with legal actions launched in Canada for professional work done in Canada, it is not structured to assist with legal actions initiated from outside Canada. This means that, generally, if you are sued from outside Canada by a non-resident, even if it is related to work done in Canada, you may not be eligible for CMPA protection.
There are some instances, however, where the CMPA may exercise its discretion and assist with legal actions brought outside Canada, such as in emergent, urgent, or exceptional circumstances.
Scenarios illustrate how Canadian physicians can be sued from outside Canada
New procedure attracts an American patient
A physician develops a new procedure for treating a specific disease. The procedure is in the trial phase and not yet available elsewhere. A U.S. resident wants to travel to Canada to receive the treatment. Other treatments for the disease are available in the U.S., but not this particular procedure.
If the patient experiences harm during treatment, the non-resident may sue the physician in the U.S. despite the care being provided in Canada.
Seeing U.S. patient using virtual care, co-signing prescription
A non-resident wants to come to Canada to buy his prescription medication at a cheaper price. He sees a Canadian physician via virtual care and asks the physician to co-sign a prescription written by a physician in the U.S. The Canadian physician co-signs the prescription, and the non-resident crosses the border and fills the prescription at a Canadian pharmacy.
By agreeing to see a non-resident through virtual care or co-signing a prescription—thus, arguably approving the indication for the medication—the Canadian physician likely established a doctor-patient relationship, even if he hasn’t asked the U.S. resident for a history or examined him in person. As a result, the physician would likely be named as a defendant in litigation commenced in the U.S. for difficulties stemming from the use of the medication. In addition, the physician may be subject to a complaint to provincial or territorial medical regulatory authorities (Colleges) in Canada.
Offices in Canada and the U.S.
A Canadian physician has offices in Canada and New York State and treats a non-resident of Canada in both locations. The non-resident experiences harm from the treatment and launches a legal action in the U.S. against the physician. Based on the facts of where treatment was provided, the court concludes the physician has a close connection to the state and it is reasonable to allow the action to proceed in New York.
CMPA’s assistance with legal actions commenced outside Canada
Assistance, generally, with legal actions launched in Canada
When you experience medico-legal difficulties that are launched in Canada by a resident or non-resident and result from your professional work in Canada, the CMPA will generally assist.
CMPA not structured to assist with legal actions launched outside Canada
You will generally not be eligible for CMPA assistance with a legal action commenced outside of Canada, even if you provided the treatment in Canada. The key difference here is where the lawsuit is started. The Association is not structured to assist with legal actions brought outside of Canada
In each of the scenarios described earlier, if the non-resident sued you outside Canada, you generally would not be eligible for CMPA assistance.
The CMPA’s principles of assistance on “Treating non-residents of Canada” has more information on:
CMPA’s assistance and emergent, urgent, exceptional situations
In some instances, the CMPA may exercise its discretion and assist you with legal actions brought outside of Canada.
Such an instance may occur if you provide care that is emergent or urgent such as treating a non-resident visitor to Canada who is involved in a motor vehicle accident or unexpectedly develops medical problems. Another instance may occur if you provide care in exceptional circumstances, such as providing treatment that is not reasonably available in the non-resident patient’s own country.
In these cases, the CMPA may provide discretionary assistance to attempt to have the legal matter transferred to Canada to be heard by a Canadian court or tribunal.
If you are treating non-residents in emergent, urgent, or exceptional circumstances, you are expected to make reasonable efforts to have the patient sign the CMPA's Governing Law and Jurisdiction Agreement
CMPA assistance and choosing to treat non-residents
The CMPA will not consider extending assistance for legal actions commenced outside Canada when you have, directly or indirectly, solicited, actively undertaken, or offered to undertake the treatment of a non-resident patient. For example, if you solicit or encourage the creation of a doctor-patient relationship with patients from another country (e.g. by advertising on the Internet), you will not be eligible for CMPA assistance if sued outside Canada.
If you choose to actively undertake treatment of non-resident patients, you should obtain alternative professional liability protection from a provider other than the CMPA.
As well, if you have a website promoting your services, you should include a disclaimer on the site stating that the content is intended only for residents of Canada.
Reduce your risks when treating non-residents
Have non-resident sign CMPA’s Governing Law and Jurisdiction Agreement
If you provide care to non-resident patients in Canada, you are expected to have these patients sign the CMPA’s Governing Law and Jurisdiction Agreement.
You should explain to patients that the purpose of the Governing Law and Jurisdiction Agreement is to agree that any disputes arising from the medical care will be heard in Canada. Of course, this does not guarantee that actions won’t be brought in another country. The Agreement is necessary in attempting to have the matter transferred to a court in Canada and decided pursuant to the laws of that province or territory.
It is also recommended that patients from other countries who are temporarily living in Canada execute the CMPA’s Governing Law and Jurisdiction Agreement. This may include individuals working in Canada on a contract or attending school in Canada.
If you are providing care in a hospital, the decision to use a Governing Law and Jurisdiction Agreement should be made in consultation with hospital administration or its legal counsel.
Attempt to transfer a claim
When a non-resident patient initiates a legal action outside of Canada arising from care you provided in Canada and a Governing Law and Jurisdiction Agreement has not been signed, you may attempt to have the claim moved from that jurisdiction to Canada.
Do not ignore a claim in another country
Do not ignore any legal document, including those originating from other countries. Failure to respond to a subpoena or a claim may result in legal consequences that can be enforceable in Canada.
Call the CMPA for advice
No matter the circumstances, you are encouraged to contact the CMPA for advice whenever you encounter medico-legal problems.