Collaborative Care And Vicarious Liability

Collaborative care is the practice of healthcare professionals from different specializations working together to provide the best possible care for their patients. Oftentimes these specializations include allied healthcare professionals working alongside each other and others in facilities such as private healthcare facilities, public community health centres, and hospitals. Given the collaborative and team-based approach to care utilized by these facilities, in the event of an injury to a patient it is common for all professionals and institutions who were involved in the treatment of that patient to be named as defendants in a medical malpractice lawsuit. Therefore, it becomes especially important in collaborative care environments for all parties to have adequate liability coverage and for the care team to be set up in such a way so as to limit exposure.

This paper seeks to provide an introduction to vicarious liability in Canada, the applicability of joint and several liability, and the impact of these general principles in the collaborative care context. In so doing, we will review medical malpractice jurisprudence in which the court considered whether professionals and institutions should be held liable for the acts of others.

Primer on Vicarious Liability in Canada

Vicarious liability is the imposition of tort liability on a party who, while related to the negligent party through a specific relationship, did not actually commit the negligent act.1 Vicarious liability commonly arises with respect to the employer-employee relationship, wherein it has been held that employers can be held vicariously liable for the acts of their employees.

The test for establishing vicarious liability has been well defined by the courts. Firstly, an employment relationship must have existed between the negligent person and the facility or employer. Secondly, the employee must have been acting within the scope of his or her employment. In other words, a plaintiff need not prove that the employer authorized the act complained of, but merely that it was done while the employee was carrying on the business of their employer.2 If the employee is acting a manner that so clearly falls outside of the scope of what it is that they are employed to do, then this portion of the test will not be met.

In assessing whether to make a finding of vicarious liability, the court will consider a number of factors. These factors include:

the level of control that the employer had over the employee, any agreements which describe the relationship between the parties, and any requirements in place with respect to the employee's obligation to follow the employer's policies and procedures. With few exceptions, an employer is generally not vicariously liable for the acts of an independent contractor. In Canada, many attending physicians in hospitals are independent contractors; therefore any negligence on the part...