The doctor-patient relationship has been defined differently through the
years. In the beginning it developed into a “common calling” which meant
doctors practiced medicine as a duty to their patients. Laws were developed to
protect patients, therefore doctors used proper care and expert skill. In the
past six centuries, medical malpractice has increased, which lead to revision
and addition to the law. Liability was introduced along with the “GIANT of all
torts”, negligence. Now in today’s society, a doctor’s duty is to use
reasonable care, skill and judgment in the practice of his/her profession and
when negligent, take full responsibility.
What is malpractice? Malpractice is negligence. Negligence is a tort. A
tort is a civil wrong, therefore malpractice is a civil wrong. In its
simplest terms, malpractice has four essential elements: 1) Duty. Every
health care provider assumes a duty when starting consultations, diagnosis, or
treatment of a patient. The duty arises from an expressed or implied contract.
2) Breach. For example, if you fail to make a correct diagnosis once you have
assumed the duty to do so, you have created a “breach of duty”, due and owing to
the patient. 3) Causal Connection. Your failure to correctly diagnose,
(“duty” you “breached”) the duty due and owing to the patient and as a direct
and proximate cause of your breach, caused damages. 4) Damages. The result of
your failure to diagnose correctly, the patient sustained damages in the form of
an additional hospital stay, complications that may or may not be of a permanent
and continuing nature. (Brooten Jr., Kenneth E. p. 1) Negligence is the most
common civil suit filed against doctors. Liability for negligence will not be
found unless the following factors are present: (a) the defendant must owe a
duty to the plaintiff to exercise care; (b) the defendant must breach the
standard of care established by law for his/her conduct; (c) the plaintiff
must suffer loss or injury as a result of this breach; (d) the conduct of the
defendant must be the “proximate cause” of the plaintiff’s loss or injury. (
Picard, Ellen I. p. 29) In the case of Adderly v. Bremner (Picard, Ellen I. p.
461) the defendant physician was negligent in not changing the syringes to
vaccinate 38 patients and instead used one needle for every two patients. As a
consequence, the plaintiff was infected with septicemia (blood poisoning).
This doctor failed to give the required standard of care. Any reasonable doctor
would have in fact changed the syringe after each patient and would have
foreseen the consequences for not changing them. According to the case the
doctor did not follow instructions accompanying the vaccine, stressing the fact
that a sterile needle and syringe were to be used for each patient. This case
is a perfect example of a doctor not following orders and unprofessionally
practicing on innocent patients. Though the plaintiff was not mortally injured,
the doctor was found liable. This teaches the defendant physician a lesson
along with doctors all across Canada and may prevent another patient from
Another common civil tort filed against doctors is battery. Battery is
committed by intentionally bringing about harmful or offensive contact with
another. The basis of this tort is that the touching is without consent.
(Picard, Ellen I. p. 25) In the case of Hankai v. York County Hosp. (Picard,
Ellen I. p. 490) the defendant doctor performed surgery on the plaintiff to
remove a miscarried fetus. The defendant also performed a meatotomy without the
consent of the plaintiff. The defendant doctor was liable for battery for
performing the unconsented – to meatotomy. There are several other cases just
like this one where a patient consents for one operation and given another or
both. How a doctor can take the decision of a competent human being into his
own hands is beyond me. The plaintiff was in no immediate danger, the defendant
could have suggested the second operation after the completion of the first. In
cases like these the doctor is incredibly egotistical and is playing God.
who ignore patient requests or fail to ask for consent only build communication
barriers and ruin the profession’s reputation.
Many people believe doctors are the real victims. They feel doctors are
confined from performing and medical students limit career options in fear of
being sued. There are some illegitimate and ungrateful citizens who insist on
filing suits when doctors are not at fault. When a family member dies, the loss
may cause anger and looking for a doctor to sue seems like the right thing to do.
It is human nature to always look for a party at fault in any tragedy.
Doctors’ fears of malpractice awards also result in bad medical care. New
procedures carry a higher risk of harm and second guessing later, so doctors
stick to conventional treatments, even in terminal cases, for fear the treatment
may hasten the patient’s death. The opposite is also true, both overtesting and
overtreating are standard methods of beating malpractice suits. Thousands of
unneeded surgeries are performed each year. Expensive technology is regularly
misused – CAT scans to diagnose simple headaches, for example. Also, the few
plaintiff’s who win unrealistically high awards raise insurance costs for all
doctors. (Nolo Press editors, # 32) In fact, the Canadian Medical Protective
Association has announced a 20 % increase in premiums for 1996. ( Canada News
Wire 12 Dec. 95)
It is my opinion though, that by insisting on settlements more doctors take
extra care and look for a second opinion. As long as doctors take extra care
they should have no fear. If they do, they know they’re doing something wrong.
More and more doctors everyday make lethal mistakes causing death, pain and
suffering, brain damage or scarring. These mistakes must be brought out into
the open and damages to the victim should be awarded. Fewer than 5% of the
people injured while under medical care receive any compensation. (Nolo Press
To add to the grief, the plaintiff is injured twice: first by faulty
medicine, then by a famously slow legal system. To win a medical malpractice
lawsuit, the injured must prove who caused the injury. This can be an extremely
difficult task given the complexities of modern medicine, and the common
reaction of doctors, which is to cover up their mistakes. The majority of those
who do sue, do not fair well; only 20% win. The few patients who do succeed,
wait an average of seven years before getting a penny. (Nolo Press editors, #32)
Unfortunately, the price Canada pays for these suits is enormous. In 1982,
Canada spent $ 4 532 292 in legal costs. That is $ 4 524 676 more then what
we paid in 1950. In 1982 one out of every 244 doctors was successfully sued.
The average sum of awards paid by doctors in 1982 was $ 38 941.18 whereas in
1971 it was $ 8 634. (Picard, Ellen I. p. 347) Many people believe we are in a
“malpractice crisis” and another mode of compensating patients should be found.
A no-fault method to compensate all patients while under medical care is
being considered. This method would: a) quickly compensate all who have
suffered harm as a result of medical treatment, regardless of how it occurred;
b) give doctors incentives to root out and expose the causes of medical error;
c) base a victim’s economic recovery on actual economic loss – medical costs,
loss of income and disability – plus, where there is long-term or permanent
disability, a reasonable amount for lost quality of life and d) handle
compensation through a provincial – run Injured Patients Board, which could
track information with a Medical Board that could monitor doctors. (Nolo Press
I cannot see this form of compensation working. It would be abused by
money-seekers and insufficient for the genuinely hurt. I also do not believe
we are in a crisis situation. According to the Canada News Wire the government
has been paying supplements to help physicians with an expected escalation in
lawsuits, similar to that experienced in the U.S. As it turned out, Canada did
not follow the U.S example and the reserve has grown to about $200 million
in1988 to nearly $1 billion. ( Canada News Wire 12 Dec. 95) Along with the
statistics of how few people win suits, it is clear to me that we are not in any
We may very well find ourselves in a crisis situation if our doctors do not
perform with extreme care. Everyday people depend on them and trust them. We
need physicians to attempt to save lives at the best of their ability. If a
doctor happens to create a breach of duty that causes damages, they should take
full responsibility. When a person chooses to be a physician, they choose to
render their services to society. They choose to care for people. By choosing
to care, they should feel for the people they hurt when an error is made. They
should want to give some form of compensation.
Though we may not be in a crisis situation now, it’s not to far down the
road. Canada must undergo some serious changes in the coming years. Doctors
attitudes must change along with the compensation system. Whether we keep the
present system, and make some changes, or try the no-fault system, we could
lessen the pressing problems. In either case, something must be done before the
hospital is considered more dangerous than a lion’s den.
n Picard, Ellen I. Legal Liability of Doctors and Hospitals in Canada. 2nd ed.
Toronto, Ont.: The Carswell Company Limited, 1984.
n Brooten, Kenneth E. Jr. Malpractice: A Guide to Avoidance and Treatment.
Orlando, Fla.: Grune ; Stratton Inc., 1987.
n Nolo Press editors. Fed up with the legal system? : What’s Wrong and How to
Fix it. 2nd ed. United States of America : Nolo Press, 1994. ( Internet:
Fed up #32. Compensate Medical Malpractice Victims)
n “Government to Rally Support Against Physicians’ High Insurance Costs” Canada
News Wire. Toronto 12 Dec. 1995. (Internet)
n Taylor, John Leathy. Medical Malpractice. Great Britain: John Wright & Sons
n Law, Sylvia and Steven Polan. Pain and Profit: The Politics of Medical
Malpractice. New York, NY.: Harper and Row Publishers, 1978.