Duty of care

In common law jurisdictions, a physician’s duty of care generally arises from the doctor-patient relationship. In Québec, this duty stems from the principles of general civil liability. Once a physician enters a professional relationship with a patient, there is a duty to provide care to the patient as the situation requires and as circumstances reasonably permit.

The law recognizes the duties to attend, diagnose, refer, treat, and instruct the patient as part of the duty of care.¹ This includes, but is not limited to:

• acting in the patient’s best interests
• exercising reasonable care, skill, and judgment to arrive at a diagnosis
• treating the patient in accordance with current standards of practice
• informing the patient of their options concerning investigations, treatment, and follow-up care
• ensuring the patient is aware of clinical signs and symptoms that might signal a complication requiring the patient to seek immediate medical care
• referring the patient or obtaining a consultation when help is needed to diagnose a condition, when a patient is not responding to treatments, or when the required treatment is beyond the expertise of the treating physician
• developing a follow-up plan when the physician is no longer available to continue treating the patient

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To determine whether physicians have breached their duty of care toward a patient, the courts rely on the standard of care, which is defined by the degree of care and skill that could reasonably be expected of a normal, prudent practitioner of the same experience and standing.² This means that reasonableness, not perfection, is the measure by which a physician’s care is judged.

Courts have also recognized that they must guard against judging a physician with hindsight. The standard is therefore determined with reference to the circumstances and the reasonable standard of care that existed at the time of the alleged negligence.

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Wait-lists have long been a reality in Canadian healthcare, and they have increased since the COVID-19 pandemic began. The challenge of managing wait-lists contributes to the stress physicians experience from not always being able to provide the quality of care they believe the patient needs due to limited resources. The courts as well as provincial and territorial regulatory authorities (Colleges) recognize that physicians cannot be expected to provide care that depends on resources that do not exist. A court in Ontario, for example, has stated that "…a doctor cannot reasonably be expected to provide care, which is unavailable or impracticable due to the scarcity of resources”.³

There is no perfect solution to address resource limitations and long wait-lists. Nevertheless, physicians can take steps to manage shortages, reduce the potential for patient harm, and mitigate medico-legal risk. Key principles in this endeavor include:

• acting in the patient’s best interest, and
• realizing that the expectation of courts and Colleges is of reasonable care, not perfection, given limited resources.

Good communication between consultants, referring physicians, and patients is key to the delivery of safe care. Many Colleges have specific guidance on who should follow patients on wait-lists.

Some Colleges also have explicit expectations for physicians making referrals. These expectations may include having a mechanism in place to track referrals, and what information to include in the referral. Referring physicians may want to ensure that patients are aware of the signs and symptoms that may signal a need for reassessment or for an emergency visit. They may also want to communicate with consultants to clarify each other’s roles while the patient is awaiting the consultation.

To help demonstrate the reasonableness of the care provided to a patient while waiting for a patient to be seen by a consultant, physicians should document the following:

• the advice given to the patient on what steps they should take while waiting for their consultation (e.g. signs and symptoms to watch for that may signal a need for reassessment or emergency visit)
• the efforts made to obtain care for the patient
• the steps taken to monitor the evolution of the patient’s condition
• their communications with the consultant

Many Colleges also have expectations for consulting physicians receiving referrals, including specific timelines for notifying the referring physician on whether the consultant is able to see the patient. College policies generally require that specialists take a number of factors into account when deciding whether to accept the referral, including:

• urgency and clinical need
• current wait times
• scope of practice and clinical competence

To minimize the risk that a deteriorating patient remains on the wait-list without being seen, consultants should consider informing both the patient and the referring physician of the expected wait time and who should be contacted if there is a change in the patient’s condition.

For more information on management of wait-lists, see the CMPA Good practices, “Wait times when resources are limited”.

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A physician working in an Emergency department will likely be found to have entered a doctor-patient relationship and have a duty of care when performing an initial clinical assessment of a patient in the Emergency department, making a decision regarding the patient’s acuity, ordering investigations, or initiating treatment (including for actions delegated through a standing order or medical directive that physicians have authorized).

A duty of care can also arise when physicians are notified of a patient who is experiencing ambulance offload delay. Physicians will generally be expected to act reasonably and to take the best interests of the patient into account. The Colleges and courts will generally be mindful of the challenging circumstances, but may find it unacceptable for a physician to leave a patient solely under the care of Emergency Medical Services (EMS) if the physician knows the patient’s condition requires greater clinical involvement.

Physicians working in an Emergency department experiencing ambulance offload delays should consider the following:

• promote effective team communication to ensure good situational awareness
• promote an environment where all team members, including EMS providers caring for patients waiting for a bed, feel comfortable and know to speak up when a patient’s condition changes
• be familiar with their Emergency department’s and institution’s policies, as well as those of their regulatory authority (College)
• support their team in developing protocols for the effective management of patients experiencing ambulance offload delays. These protocols might address, among other things:
• communication between team members
• roles and responsibilities of various healthcare professionals when the Emergency department is experiencing delays
• documentation of patient assessments and their clinical evolution
• triage procedures to be used when a patient’s condition evolves

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A duty of care can also arise when giving advice or providing an opinion about a patient to a colleague during an informal discussion.

An important consideration in determining whether a duty of care exists in these circumstances is whether the physician giving advice knew or ought to have known that the advice would be relied upon by the colleague in making clinical decisions regarding the patient’s care. If the advice is later called into question, the courts will determine whether a duty of care existed based on the facts and assess the physician’s conduct in light of the standard of care of a normal, prudent practitioner of the same experience and standing.²

When providing informal advice—whether in person, on the phone, or electronically—physicians should be aware that they may owe the patient a duty of care and should consider the following:

• ensure they have sufficient clinical information about the patient to answer the question and if not, ask questions, review additional documents if available, or, if possible and practicable, offer to see the patient where appropriate and necessary to provide an opinion
• document the information provided and reviewed, and the advice given (see also the section “Documentation,” below)
• when the physician does not have access to the patient’s medical record, employ a system for documenting in their own confidential records the identity (name) of the person to whom the advice was given, the date and time of the discussion, information received, and advice given
• consult their hospital or institution, if applicable, and their College, who may have policies or protocols for documentation in these circumstances

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Provincial and territorial regulatory authorities (Colleges) generally consider the provision of emergency medical services to individuals in need to be a physician’s ethical duty. In addition, the Canadian Medical Association’s Code of Ethics and Professionalism⁴ states that physicians should “provide whatever appropriate assistance (…) to any person who needs emergency medical care.” Québec’s Code of ethics of physicians, which is enshrined in law, has similar requirements.⁵

Most jurisdictions in Canada do not impose a legal duty or obligation on physicians to provide emergency medical services. However, all provinces and territories have legislation that protects physicians who voluntarily provide assistance at the scene of an accident or in an emergency. Québec is the only province that imposes a legal duty on physicians to come to the aid of a person in a life-threatening emergency. Québec’s Civil Code protects physicians from liability for that care.

While legislation varies between jurisdictions, it is unlikely that any court would criticize the conduct of a physician who in good faith treated a person in need of urgent medical attention. The CMPA is unaware of any proceedings commenced against Canadian physicians in either Canadian or foreign courts, alleging negligence in providing emergency medical attention as a good Samaritan.

When CMPA members provide care as good Samaritans in an emergency situation, they are generally eligible for CMPA assistance regardless of where the emergency care was delivered—in Canada, in other countries, or in international air space or waters—and whether the care was provided to residents or non-residents of Canada. In addition, retired physicians who were previously CMPA members and who act as good Samaritans are also eligible for CMPA assistance; they do not have to retain membership solely for this possibility.

As soon as possible after the emergency, physicians should consider documenting the encounter and the rationale for their decisions. This documentation could be made, for example, in the airline medical record documents if the emergency occurred on an airplane, and also in the physician’s own personal confidential records. Where physicians document in another record such as airline medical records, they may wish to retain a copy of those records with their own personal confidential records.

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Medical records are central to patient care and safety, and act as evidence of the care or advice provided. Clinical encounters should be factually and objectively documented, as soon as possible after the encounter (contemporaneously).

It is generally considered good practice to document details of all care communication with patients, and with other healthcare professionals, including communication that occurs through phone, email, and other digital platforms. Physicians should be aware of their provincial/territorial regulatory authority’s (College’s) and hospital’s or institution’s policies on documentation. Additional information on documentation and record keeping can be found in CMPA Good practices, “Documentation and record keeping”.

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