Does a physician owe to patients a legal duty to be competent and to maintain competence, breach of which will entitle the patient to a remedy in money damages?
Astonishingly, Canadian case authority says no: Gay v. Regional Health Authority 7, 2012 NBQB 88 (CanLII). Not now, not ever.
Contrast that with an opinion I received from a neurosurgeon in which he criticized the defendant for lack of integrity and lack of compassion, which failings caused a devastating stroke.
The neurosurgeon referred to standards known as the CanMEDS Physician Competency Framework. The Framework was adopted by the Royal College of Physicians and Surgeons of Canada in 1996. The Framework describes the seven roles of a doctor: Medical Expert, Communicator, Collaborator, Manager, Health Advocate, Scholar and Professional.
Among the CanMEDS competencies is the obligation to “provide optimal (not just average), ethical and patient-centered care”, and to demonstrate “compassionate care”.
A search of caselaw reveals that in the regulatory setting, courts have found the Framework to encompass not only clinical skills and knowledge, but professional attitudes and behaviors. Medical residents can be put on probation and even failed out for unprofessional attitudes and behaviors which fall below the CanMEDS standards. These are disciplinary appeals to the courts, and there are as yet no pronouncements as to the application of CanMEDS to civil claims for damages.
The impact of the now entrenched CanMEDS competencies framework on medical malpractice claims is entirely unexplored. This despite the fact that the “CanMEDS model for physician competence is being adopted around the world” and that “the CanMEDS competencies have been integrated into the Royal College’s accreditation standards, objectives of training, final in-training evaluations, examination blueprints, and the Maintenance of Certification program,” according to the Royal College website.
The disturbing truth is that Canadian law has been left far behind the evolution of medical thinking about standards for the competent practice of medicine. The courts will remain uninvolved and out of touch in their level of understanding, unless the plaintiff bar begins educating the defence bar and the medical protective organizations, the courts and the legal academic community on the standards of competence that physicians and surgeons actually apply to themselves.