Canadian Developments in Health Care Liability and Compensation

Abstract

The mid-1980s saw a growing concern among Canadian health care providers about increased frequency and severity of medical malpractice claims by patients. In the face of many divergent theories of how to best respond, a cross-sectoral task force was struck to investigate and advise about the Canadian health care liability system. Their 1990 report outlined the evolution of Canadian and provincial/territorial liability for health care in terms of legal doctrine, frequency and severity of claims, and insurance. The most controversial aspect of the current compensation scheme for injured patients is civil litigation. In particular, the common law fault principle has created a gap for patients who are injured as a result of medical treatment but no one is at fault. The task force identified eight key shortcomings of the tort system for addressing medical injuries. The task force’s investigation and recommendations for liability and compensation issues in Canadian health care is the most systematic assessment ever available. The report suggests that an equally systematic response to the task force’s recommendations for reform, rather than ad hoc changes, is needed to avoid the same pressures that precipitated the creation of the Task Force.