Medico-legal risks associated with inviting non-resident individuals seeking perinatal care services

December 1, 2023

Joint Statement – CMPA and HIROC

This Joint Statement from the Healthcare Insurance Reciprocal of Canada (HIROC) and the Canadian Medical Protective Association (CMPA) provides important risk considerations for healthcare organizations and independent healthcare professionals (i.e., physicians, midwives) who are deemed to have invited, solicited, or pre-arranged for non-resident individual(s) to receive perinatal care in Canada.

It is recognized that urgent and emergent care must be provided to all patients, including non-resident individuals, who present for care. This Joint Statement is primarily intended to address situations where individuals are invited, solicited, or the subject of pre-arrangements to come to Canada for the purposes of receiving perinatal care services, which raises significant and additional risk considerations.

HIROC Coverage/CMPA Protection

CMPA assistance is discretionary and determined on a case-by-case basis. However, CMPA physician members are generally eligible for assistance with medico-legal claims brought within Canada as a result of professional work done in Canada. Similarly, healthcare organizations and their employees (Subscribers) with HIROC coverage are indemnified and defended in medico-legal claims brought within Canada.

In any case where care is provided to a non-resident of Canada, whether on an urgent, emergent, or elective basis, the individual and healthcare organization providing the care are exposed to the potential of a claim being brought in the home jurisdiction of the patient.

HIROC’s coverage applies to occurrences happening anywhere in the world but only if the determination of liability and assessment of damages are made by a Canadian Court of competent jurisdiction. While this territorial limitation clause does not apply to the provision of healthcare services on an emergency basis or in a situation where, in a non-life threatening situation failure to provide such medical attention could result in a serious threat to life or an organ or body part, coverage would not be available for a claim arising from the provision of elective care where the claim is brought outside of Canada.

CMPA will also generally decline to assist physician members named in a legal matter commenced outside of Canada. In individual cases, CMPA may exercise its discretion to assist a member with a legal matter commenced outside of Canada following consideration of a number of factors (e.g., urgent or emergent circumstances) and whether the physician has made reasonable efforts to have the patient complete the Governing Law and Jurisdiction Agreement (GLJA). The GLJA can help establish Canadian jurisdiction over any legal actions that may result from providing care or treatment to patients who are not residents of Canada.

Summary of Risk and Risk Advice

While HIROC and CMPA have not yet collected specific data on this point, there may be an increased risk of medico-legal difficulties arising outside of Canada in situations where non-residents are invited, solicited or pre-arranged for care versus those situations where care is provided on an urgent or emergent basis. Neither HIROC nor CMPA are structured to assist with complex and costly medico-legal issues arising outside of Canada.

Furthermore, there is a risk of substantially higher damages in claims brought outside of Canada, as compared to those typically seen in Canada. Defendants in matters commenced outside of Canada may also encounter claims for damages that are not typically recognized by Canadian courts.

CMPA members and HIROC Subscribers who choose to provide elective care to non-residents of Canada may need to seek out alternate liability protection for this care.

It continues to be our recommendation that:

  1. Reasonable efforts be made, by Subscribers and/or physicians, to have the GLJA signed whenever care is provided to non-residents;
  2. Subscribers and physicians refrain from inviting, soliciting, pre-arranging non-residents to travel to Canada for the purpose of receiving elective care.
  3. While urgent and emergent care should continue to be provided to all patients who present for care, CMPA members and HIROC Subscribers who wish to provide elective care to non-residents of Canada should seek specific CMPA or HIROC advice, and if they wish to invite, or solicit, pre-arrange non-residents to travel to Canada for the purpose of receiving elective care, they should seek alternate liability protection for any medico-legal issues arising from such care.

As each situation is unique, please reach out to HIROC at [email protected] or submit a request to CMPA for medico-legal assistance. For additional information and resources on the risks associated with treating non-resident individuals, please visit the HIROC website and see CMPA Treating non-residents of Canada.

Dr. Lisa Calder

Catherine Gaulton