We are modernizing the Good Practices Guide. Learn more

Legal liability

When harm from healthcare delivery occurs

Negligence in common law

Civil legal actions in all provinces, except Québec, are generally decided based on common law.

  • "lack of proper care and attention"
  • most common allegation in medical lawsuits
Negligence (professional civil liability in Québec) quadrant

Most medical-legal actions are based on a claim of negligence (professional civil liability in Québec). The plaintiff (the patient or the patient's representative) must prove, on the balance of probabilities, the following elements for the claim to be successful:

  1. The physician owed a duty of care to the patient. The courts say a duty of care exists when a physician has knowledge of a patient and knows, or ought to know, that the advice given will be relied upon.
  2. There was a breach of the standard of care (termed "fault" in Québec). In determining a breach of the standard of care to a patient, the courts consider the care and skill that might reasonably have been applied in similar circumstances by a colleague — a normal, prudent practitioner of similar training and experience. The courts do not expect perfection.
  3. The patient must have suffered harm or injury.
  4. Causal connection. The patient must establish that the physician's conduct caused or contributed to the harm or injury sustained.

Patients who have suffered harm may seek compensation. Under Canadian law, in order to receive compensation a patient (plaintiff
Plaintiff:  The party initiating a lawsuit. (See Defendant)
) must prove that the defendant was negligent. The defendant may be one or more individuals — physicians, nurses, and others — or institutions, such as clinics and hospitals. Residents and (rarely) medical students can be, and have been, sued.
Explore an eLearning activity on Negligence and civil liability. Opens in new window
A Statement of Completion or CME credits are available.
Explore an eLearning activity on Anatomy of a lawsuit. Opens in new window
A Statement of Completion or CME credits are available.