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D'Arcy Little MD CCFP FCFP FRCPC,

Medical Director, Journal of Current Clinical Care and www.healthplexus.net, Adjunct Clinical Lecturer, Departments of Medical Imaging and Family Medicine, University of Toronto, Toronto, ON.

CLINICAL TOOLS

Abstract: Medical malpractice poses a significant challenge for physicians, intertwining clinical practice with legal and ethical responsibilities. In Canada, adverse events occur in 7.5% of hospital admissions, with one harmful event per 17 stays as per 2023-2024 data. This article examines the legal architecture of malpractice, including the four elements of negligence, fiduciary duties, and damage frameworks, while highlighting systemic factors contributing to 66-85% of errors. It addresses common error patterns, cognitive biases, the informed consent process, and the critical role of documentation and communication. Strategies for risk management, transparent disclosure, and systemic reform are proposed to help physicians navigate liability while prioritizing patient safety and care quality.
Key Words: medical malpractice, healthcare liability, informed consent, systemic errors, risk management.
Legal Framework: Medical malpractice in Canada requires proof of four legal elements—duty of care, breach of standard, harm, and causation—based on expert evidence rather than personal judgment.
Fiduciary and Ethical Obligations: Physicians must not only meet clinical standards but also uphold fiduciary duties, such as acting in the patient’s best interests, maintaining confidentiality, and avoiding conflicts of interest.
Risk Management and Communication: Strong documentation, effective communication, and a robust informed consent process are essential strategies for minimizing liability and improving patient safety.
Systemic Factors and Future Reforms: Many medical errors stem from systemic issues rather than individual negligence, prompting discussions around reform models like enterprise liability and no-fault compensation systems.
Prioritize Informed Consent: Ensure patients receive comprehensive information on procedures, risks, alternatives, and consequences to meet legal and ethical standards, reducing liability risks.
Mitigate Cognitive Biases: Actively counter biases like tunnel vision and anchoring by considering alternative diagnoses and seeking contradictory evidence during clinical decision-making.
Leverage Apology Acts: Utilize provincial Apology Acts to express sympathy after adverse events without admitting fault, fostering trust and potentially reducing litigation risk.
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Related Terms: Radiology, medical malpractice, healthcare liability, informed consent, systemic errors, risk management
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