Governmental and Institutional Tort Liability for Quality of Care in Canada
Hardcastle, Lorian, Health Law Journal
The past hall century has been marked by the expansion of the law of torts and, especially, responsibility for negligence. No citation of authority is necessary to show that, in order to meet new situations in a rapidly changing society, Courts have greatly expanded the concept of the duty owed to others by persons and institutions. [T]he responsibilities of the hospital to the patient have expanded greatly in breadth and depth in this century.... Public expectations that hospitals will provide total care and make all arrangements are influencing courts in determining the responsibilities of hospitals. If the hospital is to bear more responsibility for the doctor, present systems and organization may have to be reviewed. (1)
These quotations express the need of the common law to evolve and reflect societal changes in health care, the perspective of the dissenting judge, Blair J., in the seminal Canadian case on hospital liability, Yepremian v. Scarborough General Hospital. (2) However, the majority of Canadian courts do not support Blair J.'s view and have allowed health sector tort law to remain stagnant, failing to recognize major changes in the health care system. Historically, physicians were perceived as solely responsible for patient injuries, while hospitals merely provided a location for a physician to practice and nursing staff to assist the physician in this endeavour. The patient had limited legal relations with the hospital itself and consequently, the hospital owed the patient few legal obligations. The duties imposed on the hospital corresponded to its limited role in the delivery of health care--the provision of competent staff and the maintenance of an adequate facility.
But over the last 100 years, medical care has fundamentally changed, becoming more complex, technologically advanced and specialized. The hospital is no longer merely a place where a doctor treats a patient, but a sophisticated facility designed to provide a plethora of services from a wide variety of health professionals. For example, in the case of emergency services, a patient expects treatment from the hospital's emergency team--whatever combination of physicians, nurses, and other practitioners with which the hospital chooses to staff the emergency room. The patient also knows she may have contact with other practitioners and that radiologists, pathologists or pharmacists may be involved in her treatment. Given this matrix of care, it is natural for a patient not to look solely to one's own physician for care, but to the hospital itself. Hospitals and other institutions have responded to the complexity of modern medicine by taking on a greater role in organizing and managing the delivery of services, and coordinating the diverse staff and programs. Organization and management has extended to activities related to quality of care, such as forming quality-control committees and creating policies relating to patient outcomes. (3)
Similarly, the role of provincial governments in health care has undergone a significant transformation, as part of a larger trend towards state involvement in social services. (4) Historically, its primary role was public health and limited funding of health services for the destitute. (5) The transformation in the state's role began with it undertaking the financial responsibility for physician and hospital services for all citizens, and then extended to a number of other programs, such as mental health services and prescription drug costs for certain residents. (6) But as publicly funded health care became en trenched in the Canadian identity, government increased its involvement in the governance, management and administration of the system. Motivated by its enormous public investment in health care and growing public concern and expectations, (7) the state has developed an interest in issues such as quality of care and patient outcomes. Governments now take an active role in setting the overarching policies that guide the way the system operates and evolves. …