Assistance to clinics and facilities

Originally published March 2007 / Reviewed July 2013 / Revised June 2022

New models for the delivery of healthcare raise the potential for increased liability for physicians working in non-traditional settings with other healthcare providers. These new models include:

collaborative practices
healthcare networks
out-of-hospital surgical facilities
telemedicine and virtual clinics

If a lawsuit arises from the care provided in a clinic or surgical facility, other individuals as well as the clinic could likely be named in the legal action.

Of concern is the potential for a physician or the clinic to be held liable for work done independently by another member of the healthcare team in circumstances where the physician had no direct involvement in the care and/or was not involved either in the training or supervision of that other professional. This can occur as a result of either:

vicarious liability — a physician/employer may be liable for the acts of an employee
joint and several liability — where more than one party is jointly responsible for having caused injury to another, the plaintiff may recover full compensation from the party with the greatest ability to pay, even though that recovery is out of proportion to the degree of liability

This could lead to the possibility that CMPA funds may be required to pay settlements and awards for non-members (independent healthcare providers), a purpose for which these funds were never intended.

Another aspect of the changing nature of healthcare delivery is the emergence of private surgical facilities in which patients undergo serious, sometimes high-risk surgical procedures and are permitted to remain several days postoperatively. Frequently these clinics either employ or have available a range of healthcare professionals.

CMPA assistance does not extend to facilities involved in complex medical procedures with significant potential complications and where the patient would have a prolonged stay. Such facilities could be seen as "mini-hospitals," in which the facility and its employees are normally protected by a hospital insurer.

The bottom line

CMPA members are eligible for assistance regardless of whether or not the clinic or facility in which they work is itself eligible for assistance.
Decisions concerning CMPA assistance to clinics and facilities are discretionary, and are guided by 9 general principles, outlined below.
Members are urged to take steps to arrange alternative commercial liability protection for a clinic or facility that does not fit within these principles.

CMPA assistance to clinics and facilities (effective November 10, 2006)
When, in a legal action arising from clinical care in which the actions or omissions of a CMPA member or employees under his/her supervision are an issue, and the entity which owns the clinic or facility in which that care was given is named as a defendant, the CMPA should be prepared to give full assistance to that defendant entity in accordance with the following principles:
1	Generally, a clinic or facility must be wholly owned by physicians who are all CMPA members and each of whom must regularly do clinical professional work at the clinic or facility. Each physician owner or part-owner of a clinic or facility is also expected to maintain their CMPA membership during any temporary or extended leave from practice. Where, however, the clinic or facility is owned by a corporation or pursuant to some other arrangement, all of the shares or other proprietary interest must be owned by the CMPA members, their spouses, children, parents and/or siblings PROVIDED that the CMPA member-owners retain majority voting rights or control as a whole. Where there are multiple physician-owners of a clinic or facility or multiple physician shareholders of a corporation that operates a number of sites, all the physician-owners must regularly do professional work at one or more of the sites of the clinic or facility or corporation, and each site must have at least one physician-owner who regularly does clinical professional work at that location. Where there is a single physician-owner or where a member is the sole physician shareholder of a corporation that meets the ownership requirements in the general principles, and where that physician or corporation owns and operates a number of sites, that physician-owner is required to regularly do clinical professional work at all the sites.
2	Where a physician-owner of an eligible clinic or facility retires from medical practice or departs from the clinic or facility, he/she must dispose of all ownership shares or proprietary interest, as well as that of any family member, within 3 years from the date of retirement or departure in order for the clinic or facility to remain eligible for assistance. If the retiring or departing member wishes to retain his/her ownership share or interest (or that of a family member) in the clinic or facility for any portion of such 3-year period: the retiring physician must remain a member of the CMPA, but has the option of enrolling in the type of work category with the lowest fee suitable for that purpose; the departing physician-owner must maintain appropriate CMPA membership as well as licensure in the appropriate jurisdiction.
3	All physicians working at the clinic or facility must be members of the CMPA.
4	Assistance will be extended to employees of a physician member, or of a clinic or facility that meets all of the above conditions, provided that those employees do not have the ability to see and treat patients independently.
5	Any employees or other persons working in the clinic or facility who are not physicians but members of another healthcare profession, whether regulated or unregulated, and who have the ability to see and treat patients independently, must have their own adequate professional liability protection covering all care and treatment rendered to patients at the clinic or facility. Such protection must be sufficient to respond to the range of damage claims currently in place in Canada, and must be maintained at all times during which work is performed at the clinic or facility.
6	If the CMPA is required to pay damages assessed against a member on behalf of healthcare professionals who have the ability to see and treat patients independently, then the CMPA will pursue the member's legal right to claim-over against those healthcare professionals to ensure that their professional liability coverage responds.
7	Where a clinic or facility operates in a jurisdiction in which regulations are in place governing the operation of such facilities, the clinic or facility must be in compliance with those regulations.
8	The clinic or facility must not keep a patient overnight for more than one night, whether for investigation, or for observation and supervision following treatment.
9	The physician owners must undertake, on behalf of the clinic or facility that they will cooperate in the defence of any action against the clinic or facility.
As always, the assistance granted by the CMPA is discretionary and decisions are made on a case-by-case basis. These principles will assist in determining eligibility for assistance of a clinic or facility in which care is given. Members are urged to take steps to arrange alternative commercial liability protection for a clinic or facility structure that may not fall within these principles, and to ensure that adequate professional liability protection is in place for independent healthcare workers.