Surprisingly enough, the answer to the question posed by the title is no, a physician does not owe a private law duty under Canadian law to be competent and to maintain competence.
Lawyers and judges are deeply ingrained in the tradition of conceptualizing medical negligence in terms of breach of standard of care. The various provincial medical regulatory statutes may contain requirements on physicians to maintain competence, but the common law in Canada at present stands as follows: “Cases framed in negligence do not contain a general duty to maintain competence.”: Gay v. Regional Health Authority 7, 2012 NBQB 88 (CanLII), para. 62. The same court did recognize that as a matter of established law, a hospital is under a duty to hire competent personnel: Gay, supra, para 40. So, a physician is not liable for failing to be competent, but a hospital may be liable for failing to privilege competent physicians.
In the real world of contemporary medicine, as distinct from the imaginary world of the case law, the Royal College of Physicians and Surgeons of Canada has been working on a set of required competencies for physicians for over 20 years. The CanMEDS Roles are described on the website www.royalcollege.ca/canmeds as part of a national and international effort to articulate a comprehensive definition of the competencies needed for medical education and practice. The Royal College boasts that the “CanMEDS model for physician competence is being adapted around the world”, and states that “the CanMEDS competencies have been integrated into the Royal College’s accreditation standards, objectives of training, final in-training evaluations, examine blueprints, and the Maintenance of Certification program.”
I admit that all this activity in the field of medical competence was unknown to me until I received a report from a neurosurgeon in late 2012, which addressed matters of causation and of standard of care as well. In part, the opinion on standard of care stated as follows:
Physicians are able to…
Dr. X’s commitment to Mr. Y came into question based upon his lack of communication with Mr. Y and family after the endoscopy procedure, and when things were getting worse clinically through the evening and the next day.
1.1 Exhibit appropriate professional behaviors in practice, including honesty, integrity, commitment, compassion, respect and altruism
Dr. X showed a lack of integrity while caring for Mr. Y. His communication was poor or non-existent, he did not re-examine Mr. Y on the evening of admission despite the clinical deterioration, and he showed a lack of commitment and compassion in not sharing his concerns and in not involving another specialist such as a neurologist to assess the new and troubling symptoms which Mr. Y was experiencing.
Lack of integrity … whirring carberundum!
I do not purport to know how requirements such as honesty, integrity, compassion and altruism will be hammered into the mold of the standard of care of the average peer physician, but I do know that the Royal College competency standards have raised the game. The challenge for personal injury lawyers representing plaintiffs in medical malpractice actions is to explain this potential game changer to the courts.