CMPA and the CMQ have worked together to find a solution that would enable physicians practising within an organization (corporation) in Québec to easily meet their obligation to demonstrate that they hold a protection against professional liability.
It is therefore no longer necessary for you to obtain from CMPA, and provide to the CMQ, a letter indicating your organization’s eligibility for CMPA assistance.
We have received questions from Québec members about this. Here is what you need to know.
Obligation to the Collège des médecins
The Code des professions (the “Code”) was recently amended to allow physicians to carry on their professional activities within an organization constituted mainly for that purpose, regardless of its legal form. 1 Pursuant to the Code and the Règlement sur l’exercice de la profession médicale en société the “Règlement”), physicians must comply with certain requirements and undertake certain steps to obtain the necessary authorization from the Collège des médecins du Québec (CMQ). A recent legal interpretation also provides that these requirements apply regardless of whether the physician holds an ownership interest in that organization.
One of the requirements is that physicians demonstrate that the organization holds a protection against the professional liability that it may incur as a result of faults or negligence committed by physicians in the practice of their profession within that organization. Until recently, physicians contacted CMPA to obtain proof of the organization’s eligibility for CMPA assistance. Following the coming into force of new provisions under the Code, CMPA and the CMQ have worked together to find a solution that would enable physicians to easily discharge this obligation.
In a letter officially transmitted to the CMQ (French only), CMPA confirmed the following:
- When a physician who is a member in good standing of CMPA chooses to practise their profession within an organization established primarily for the purpose of practising medicine (the “organization”), that physician is generally eligible to receive the assistance offered by CMPA in respect of the liability that the physician may incur as a result of a fault or negligence committed in the practice of his or her profession, regardless of the physician’s status within that organization. CMPA generally will provide medico-legal assistance to the member in respect of alleged faults that were committed by the member in the practice of their profession, that is, in the practice of medicine or involving their medical expertise, in accordance with and subject to the parameters of its principles of assistance. 2 This eligibility will be maintained as long as the physician remains a member in good standing of CMPA.
- CMPA protection is occurrence-based.
- Should the organization be the subject of a legal action alleging as the sole ground its liability for a fault or negligence committed by the member in the practice of their profession, as previously defined, CMPA would generally undertake the defence of the organization in respect of these allegations and would generally indemnify the injured third party for any award relating to the member’s liability for their fault or negligence in the practice of their profession.
- In the event of a legal action against the organization alleging both the organization’s liability for a fault or negligence committed by the member in the practice of their profession and the organization’s liability in other respects, CMPA would generally indemnify, depending on the nature of the proceeding, the organization or the injured third party for the portion of any award relating to the member’s liability for their fault or negligence in the practice of their profession.
The CMQ now accepts this letter as the proof required by the Code and the Règlement. It is therefore no longer necessary for you to obtain from CMPA, and provide to the CMQ, a letter indicating your organization’s eligibility for CMPA assistance.
Your organization’s potential liability
The letter referred to above addresses only the organization’s liability for a fault or negligence committed by the member in the practice of their profession. However, your organization’s liability could be engaged in several other contexts. For example, if your organization operates a clinic, the organization’s liability could be engaged by a professional fault or negligence committed by an employee of the clinic. Your organization could also incur liability for commercial or corporate reasons that do not fall within the scope of professional liability.
We strongly recommend that you review, with your personal legal advisors or those of your organization, the potential areas of liability affecting your organization in order to identify any protection that may be required.
As discussed below, your organization’s potential liability may exceed the circumstances for which CMPA assistance is available.
Eligibility of clinics and organizations for CMPA assistance
In certain circumstances, CMPA may offer assistance to a clinic or organization for the clinic’s professional liability beyond that associated with the member’s fault or negligence in the practice of medicine.
Decisions regarding CMPA assistance to clinics or organizations are discretionary and are made following a review of the allegations brought against the clinic or organization. CMPA cannot proactively confirm whether a clinic or organization may eventually be eligible for its assistance.
The general principles on which decisions regarding assistance to clinics and organizations are based are available on CMPA’s website. We invite you to review these principles with your personal legal advisors, or those of your organization, to determine whether your organization could benefit from CMPA assistance. 3
Please note that CMPA assistance is available only in respect of professional liability arising from the provision of clinical care. This assistance is not available for liability arising from commercial or corporate matters.
We encourage you to take the necessary steps to obtain complementary liability protection from a commercial insurer if your clinic or organization does not meet the principles of assistance set out above, and for areas that are not the subject matter of CMPA’s protection.
Yours sincerely,
Membership Services
Notes
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Le Code previously provided that physicians could only practise in a corporation (SPA, société par action) or in a limited liability partnership (SENCRL, société en nom collectif à responsabilité limitée), the term “organization,” is not defined in the Code but generally refers to any type of corporation, business or association, regardless of its legal form.
The Règlement sur l’exercice de la profession médicale en société and its applicable requirements still only apply to corporations or limited liability partnerships.
For more information, please refer to the relevant information page on the Collège des médecins du Québec webpage.
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