 This is civil issues in medical liability. My name is Lara Courier, I'm an associate professor at Winkiel University in Montreal. This presentation deals with general principles governing physicians' liability under the civil law of the province of Quebec. In many respects, these principles are different from those governing medical practice in the rest of the country, given that medical liability in Quebec is dealt with under French law principles embedded into Quebec civil code in the 19th century. Studies have shown that 7.5% of patients treated in Canadian hospitals suffer in adverse events, which can be defined as an unintended injury or complication caused by out-care management that leads to death, disability, or prolonged hospital stay. In 2000, it was estimated that 40% of these adverse events are preventable, resulting in a large number of preventable deaths. These adverse events have led throughout the second half of the 20th century to an increase of legal claims made against Canadian physicians. But we observed in recent years an actual decline of the number of claims, as we will see in a moment. There has also been an increase in the awards of damages granted in cases that find physicians liable. Several factors explain these trends, including changes in medical technology, the development of consumer law, greater expectations than the part of patients, the population's greater knowledge of medical issues and of their legal rights, changes in the doctor-patient relationships, and some changes in legal rules, especially the development of the medical duty to inform in the 1980s. So there are more medical map practice lawsuits across Canada than there used to be, but a small proportion of those claims make it to trial, most are settled out of court or abandoned, and a small proportion of those making it to trial are successful. The statistics of the last report of the CMPA, the Canadian Medical Protective Association, are revealing. These are all the new cases filed against doctors in Canada between 2003 and 2012. The blue line shows legal cases, which appear very stable since 2004. On the other end, sorry, college matters, which appear in yellow and which are disciplinary actions, are on the rise. Looking at new legal actions per 1000 members, we easily see that they are in constant decline since 2003. This slide compares Ontario, Quebec, and the rest of Canada. We see that the number of new actions against physicians in Quebec is much lower than in Ontario and even the rest of Canada. Although it's hard to tell for sure, this can be probably explained by the fact that there are in Quebec only a handful of law firms that specialize in medical malpractice. The lawyers in those firms are extremely specialized and knowledgeable, and some actually explain that they operate a pre-selection of cases and that will not start a lawsuit against a physician if they know it is doomed to fail. Looking here briefly at the numbers for 2012, we see that most malpractice claims against Canadian physicians have not made it to trial. Most have been settled out of court with the CMPA making an offer to the patient without admission of liability. Many have been dismissed at a preliminary stage or discontinued or they have been abandoned by the patient. Now moving on to physicians liability under the civil law of the province of Quebec. The first particularity of Quebec law is that disclaimers of liability are not legal in this province. Article 1474 of the Civil Code of Quebec already forbids anyone, physicians included, to exclude or limit liability for physical injuries. The Quebec Code of Attics of Physicians, which is a piece of legislation in Quebec, reinforces this in two articles, 11 and 71, and I'll just read quickly Article 11. A physician must, in the practice of his profession, assume full civil liability at all times. He may not elude or attempt to elude liability nor request that a patient or person renounce any records taken in a case of professional negligence on his part. There are three conditions to prove in Quebec to find a physician liable to compensate the injury caused to a patient by a position to five in the rest of Canada. The first one is to prove that the physician has breached his contractual obligation of means, and this is in cases where there is a contract between the patient and the physician, which is most cases. But in cases where there is no contract between a physician and a patient, the patient must prove fault on the part of the physician. The second condition is to prove that there is a causal link between the breach or the fault and the injury, and finally the patient must prove that he or she has suffered injury. We will only discuss the first two conditions together. The test for proving that the obligation of means of the physician has been breached is to demonstrate that the physician has not used reasonable means to achieve the results sought. For example, the recovery of the patient. There's no need, it's not a breach to prove that the result has not been achieved. Okay, one has to only use reasonable means to achieve that result, and the test for fault where there is no contract is to prove that the physician has not acted as a reasonable doctor would have placed in the same circumstances. As you can see in both cases, the physician is only required to act reasonably. When assessing the reasonableness of the means used or of the behavior of the physician, several factors may come into play, including the degree of risk involved in the procedure or treatment, whether or not the physician is faced with an emergency situation. The medical knowledge existing at the time of the events, over average experience and skills will also be taken into account, including the fact that the physician is a specialist. The law however recognizes in Quebec as in the rest of Canada that there might be more than one reasonable way to test, diagnose, treat, follow up, et cetera. The Supreme Court of Canada recognized this reality for the first time in a Quebec decision which later influenced the law of the rest of the country. In 1992, in La Pointe versus La Gardard, the Supreme Court wrote, given the number of available methods of treatment from which medical professionals must at times choose and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time, even in the face of competing theories. An exception that applies throughout Canada, including Quebec, exists where standard medical practice that is accepted by the profession is fraught with obvious risks such that anyone is capable of finding a negligent without the necessity of judging matters requiring diagnostic or clinical expertise. This exception is a very rare application. The second condition commented on briefly here is the necessity to prove causation. In other words, the necessity for the plaintiff to prove that there is a relationship of cause and effect between the physician's fault or breach and the injury suffered by the patient. This causal relationship must be direct and immediate according to the Civil Court of Quebec. And this condition actually would require a lengthy explanation. It's actually, in many cases, very difficult to prove. I will limit myself to say that regularly there are difficulties in medical and my practice cases in proving this condition. One example is revealing. It is the case of Saint-Jean versus Mercier, decided by the Supreme Court of Canada in 2002. In that case, it was highly debated by numerous medical experts whether the paraphernalia the patient suffered from had been caused by a serious traffic accident or by the fact that the orthopedist who treated him at the hospital had allowed his mobilization despite a fracture of the T7 vertebra. The issue had to go all the way to the Supreme Court of Canada before getting resolved. Quebec court senses that there is no need for mathematical or scientific exactitude and assessing causation. The existence of a causal link is illegal, not a medical determination in front of the court, and it must be made on what we call the preponderance of evidence or the balance of probabilities. As in the rest of Canada, this means that the existence of a causal link must be more probable than not, which is a much lower requirement than the probability required by scientists before concluding to the causal relationship between two events. Causation theories are usually defended at trial with the help of expert witnesses who are hired and paid by the parties and who often disagree with one another. Obviously, if they did agree with one another, we might not be a trial in front of a judge. In 2002, the Supreme Court of Canada in a Quebec civil case insisted that where experts disagree, the judge must decide for herself or himself which view is to be preferred, since it is the judge's responsibility to decide whether the standard of proof, the preponderance of evidence, is satisfied. As long as the choice is made based on acceptable evidence, it will be legally valid. Obviously, this can be a time of very difficult determination to make for judges as the causal evidence in medical and my practice cases is often scientifically complex. Find a few words on the issue of informing the patient and obtaining the patient's consent. The obligation to inform the patient and obtain is or consent is grounded on the principles of autonomy and self-determination which are protected by both the Canadian and the Quebec Charters of Rights. In Quebec, this protection is reinforced by specific provisions of the Civil Code of Quebec. Article three, which states that every person is the older of personality rights such as the right to inviolability and integrity. And article 10, which reiterates this right to inviolability and integrity of one's person and provides for a very important exception in medical cases by stating at paragraph two, except in cases provided for by law, no one may interfere with one's person without is free and enlightened consent. When informing the patient, the following items of information must be provided, the diagnosis, the nature and the goals of the treatment proposed, the risks and benefits of this treatment, whether there are any therapeutic alternatives including the option of carrying out no treatment, the risks and benefits of the alternatives and the physician must answer questions asked by the patient. As for the disclosure of risk, only material risks have to be disclosed in the therapeutic setting. In case of aesthetic intervention or research, all risks have to be disclosed. Materiality of a risk is measured by taking into account the probability of the risk arising and the seriousness of its consequences. There is no hard and fast rule or threshold percentage starting at which there must be disclosure. The balancing exercise must be undertaken by the physician in every case using as a reference the reasonable doctor's test. In other words, a physician has to disclose a risk if the reasonable physician placed in the same circumstances would qualify it as being material. This is a very important difference between Quebec and the rest of Canada where courts have rather opted for the reasonable patient test in order to give full consideration to the patient's perspective. But given that Quebec's reasonable doctor's test also obliges to take into account the patient's characteristics which could influence the seriousness of the consequences of the risk curing, it is possible that in practice there might not be such an important difference in the application of the two tests. As for the obligation to obtain consent after providing information, it is a crucial step in any interaction with a patient given that the right to bodily integrity is always infringed in the medical setting. That consent can be expressed, for example, where the patient accepts treatment verbally or signs a consent form before surgery, but it can also be implied, for example, where the patient holds his or her arm for blood drawing at the request of a nurse. The consent must also be specific to the procedure performed which means that blank, open-handed consent are usually not very weighty from a legal point of view. Such obligation to obtain consent does not exist in the case of an emergency where the patient is unable to consent, for example, the patient is unconscious and a substitute decision-maker cannot be reached in time. As for consent by minors, the line Quebec is quite different from that of the rest of Canada. There is no concept of mature minor in Quebec. The age of consent is 14 years of age, regardless of the actual degree of maturity of the child. While it is clear that a 14-year-old can consent on his or her own to medical treatment, the sign cannot be said about refusing treatment required by the minor state of health. In such a case, the minor's refusal can be overridden by obtaining a court order. However, in the case of an emergency, that refusal can be overridden by simply obtaining the parent's consent. Finally, in cases where parents refuse necessary medical care for their child below 14 or emergency care for their child over 14, this refusal can also be overridden by asking for a court order. And this court order will only be delivered if the court believes the refusal is unjustified. Consent in the case of incompetent adults is also dealt with in the Civil Code of Quebec, which lists who can act as a substitute decision maker and you have the list on the slide. The code also provides that a treatment authorization can be asked from the court if a substitute decision maker refuses treatment without justification. The Civil Code of Quebec also deals with the status of an incompetent adult's refusal of treatment by indicating that the wishes of that adult must only be taken into account. However, if an incompetent adult refuses categorically, and that may be difficult to interpret in practice, but that's the requirement, so if the adult refuses categorically care that is not urgent and does not relate to hygiene, a court authorization must be obtained before proceeding to treatment. The court will at that time obtain the patient's opinion and is asked by law to respect the refusal unless the medical care in question is required by the patient's state of health. Finally, contrary to several other Canadian provinces, the Civil Code of Quebec does not deal specifically with the status of end-of-life advance directives prepared by the patient before incapacity occurs. Quebec's Bill 52 on end-of-life care, which you might have heard of and which is currently being considered for adoption by Quebec's National Assembly, contains a detailed section on advanced end-of-life directives. Thank you very much for your attention. If you have any questions, don't hesitate to contact me.