Physician Competence? When Worlds Collide (Part 2)

Canadian physicians and surgeons on the one side, and the courts on the other side, are living on two separate planets.

On Planet Law, there is no duty at civil law to be competent and to maintain competence, and not only is there no such duty of competence recognized at law, it is plain and obvious that no such duty ever will be recognized. A limited number of duties exist such as the duty to diagnose, the duty to treat, the duty to consult, and the duty to disclose. Access to a legal remedy in damages for a breach of any of these duties which causes compensable harm, requires proof that the standard of care, defined by the average of what physicians do, has been breached.

Planet Law exists in splendid isolation from Planet Medicine.

On Planet Medicine, physicians are required to be competent and to maintain competency, and specific competencies are elaborated in detail in relation to the seven roles of physicians.  On Planet Medicine not only are physicians required to display numerous competencies, these competencies are set at a high bar.

Shocking as it may be to those on Planet Law, physicians on Planet Medicine are required to deliver not just average care, but optimal care. And yes, they are even required to give patient-centered care, and to practice effective communication. Further, Enabling Competency rule # 1.5 requires a medical expert to demonstrate “compassionate care”.

Better yet, professional medical competency by rule 1.1 requires a demonstration of “honesty, integrity, commitment, compassion, respect and altruism.” And folks, the Royal College flunks people who fall below those standards.

CanMEDS standards should have wide application in informing standards of care in the tort of negligence, but their greatest promise lies in the revitalization of fiduciary duty as a source of duties and liabilities in medical cases. Negligence tort law will yield to the concept of competency, but only incrementally over time.

In McInerney v. MacDonald, [1992] 2 SCR 138, the Supreme Court told us that the physician-patient relationship is, at least in many aspects, fiduciary in nature. It also told us that among the duties which arise from the relationship of trust and confidence between patient and doctor, is the duty to make proper disclosure of information to the patient. The concept of proper disclosure is elaborated in the CanMEDS description of the physician as communicator. “Effective communication” it lays down, “is critical for optimal patient outcomes.”

Fiduciary law, unlike negligence law, is still under development. This is a field of obligations which is as yet free of the dead hand of past precedent, a field in which concepts from CanMEDS like compassionate care, patient-centered care, optimal care, and care with integrity, can be molded by ethically-inspired lawyers and physicians and turned into legal rights with remedies, to the vindication of patient dignity and the greater health of us all. It is the job of lawyers who represent the victims of medical malpractice to ensure that the medical and legal worlds collide.