19811
COMMENTS – COMMENTAIRES
The Liability of Hospitals in Common Law Canada
1. The hospital as it once was
The earliest hospitals were charitable institutions and protected
as such by the courts.’ They were sustained by endowments and
voluntary contributions, which were encouraged in England by
the creation of the charitable trust.2 In order to function hospitals
had to purchase supplies of food and equipment, and hire persons
to care for the patient and operate the physical plant. Provision was
eventually made for some patients to pay for their accommodation.3
Thus, of necessity, hospitals entered into legal relationships and
became accountable under contracts, and by 1907 it was clear that
a hospital was liable for the negligence of its employees.4 But it was
also held that a hospital could not be liable for the negligence of
employees such as nurses or doctors in the execution of their pro-
fessional duties, as opposed to administrative functions. The ration-
ale for this limitation was that the hospital neither directed nor
controlled the exercise of professional judgment.
In the Hillyer case the English Court of Appeal concluded that
a hospital undertook certain duties toward a patient:
that the patient whilst
The governors of a public hospital, by their admission of the patient to
enjoy in the hospital the gratuitous benefit of its care, do, I think,
undertake
there shall be treated only by
experts, whether surgeons, physicians or nurses, of whose professional
competence the governors have taken reasonable care to assure them-
selves; and, further, that those experts shall have at their disposal, for the
care and
treatment of the patient, fit and proper apparatus and
appliances.5
Thus, approximately seventy-five years ago, a patient had some
recourse against a hospital: in contract, depending on the terms
thereof, or in tort, if the hospital had breached its duty to select
competent staff and to supply proper equipment, or by vicarious
liability, subject to the restriction in the Hillyer case.
for guests”,
Dictionary.
1 The derivation of “hospital” from hospitalis, in Latin meaning “a place
is of some etymological interest: see the Oxford English
243 Eliz. 1, c. 4: see Speller, The Law Relating to Hospitals and Kindred
Institutions, 4th ed., (1978), 3.
3 Ibid., 101.
4 Hillyer v. The Governors of St Bartholomew’s Hospital [1909] 2 K.B.
5 Ibid., 829.
820 (C.A.).
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Nevertheless the protectionist attitude of the courts had taken
seed, germinating in the form of immunities which have affected
legal analysis and shaped the modern law relating to hospitals. A
discussion of this influence in the common law provinces of Canada
is the subject of this paper.
II. The hospital as it now is
The modern hospital is big business. According to a recent
analysis, 6 the health care system is the largest service industry
in Canada. Hospitals cost fourteen billion dollars annually, an
amount equal to seven per cent of the Canadian gross national
product. There are approximately 40,000 physicians and 375,000
workers in about 2,700 institutions, ranging from large hospitals
to private nursing homes. The income of the Toronto General
Hospital would be 364th among the top 500 companies ranked by
the Financial Post.7
The modem hospital is a very complex organization and
is
subject to analysis and comment by experts in the field of health
care administration.8 Many of the unique features and problem
areas of the hospital identified by these studies, arising primarily
from the diverse objectives of the hospital and from its unwieldy
power structure, should be of interest to lawyers.
The raison d’6tre of the hospital is the patient but many others
depend on it for their livelihood, including the traditional trium-
virate of doctors, nurses, and administrators. The growth of medical
knowledge has resulted in new members being added to the health
care team. There have also been dramatic changes in the nursing
profession in the last decade and considerable growth in the num-
ber of administrators specializing in health care systems.
A doctor can no longer expect to practise alone in the hospital,
and he may see new personnel and any variations in the old as
threatening his independence. However, the hospital requires these
changes to accommodate its growth.9 A doctor needs the hospital
in order to treat his patients and to earn a living, but the restric-
tions imposed by the hospital on this privilege may lead to conflicts
6 Lilley, Healing is the Biggest Business The Financial Post (Nov. 29,
1980), 14, 18.
7 Ibid., 16.
8 See, e.g., Georgopoulos, Organization Research on Health Institutions
(1972): see also Meilicke & Storch, Perspectives on Canadian Health and
Social Services Policy: History and Emerging Trends (1980).
9 Blishen, Doctors & Doctrines: the Ideology of Medical Care in Canada
(1969), 81-4.
1981]
COMMENTS – COMMENTAIRES
with the hospital administrators0 or even with the doctor’s peers.
Administrators must be extremely cost-conscious in times of in-
creasing costs and decreasing government support and doctors,
because of the organization of the hospital, must vet and review
their colleagues’ performance. In addition to these potential con-
flicts the hospital’s major role as an education and research
facility, and its committee-based administration of these functions,
may lead to discord. Many committees are composed of representa-
tives from various groups serving in the hospital and each is ex-
pected to reflect the needs and wishes of its constituency; but the
decision of a hospital committee often affects an individual, perhaps
a doctor’s research proposal, or a group, such as the house staff,
and may be restrictive in nature. Thus a modern hospital is the
forum for personnel of different training and background to work
out their diverse objectives.
The authority structure in the modern hospital is shared by the
governing body (usually a board of outstanding citizens), the pro-
fessional administrators and the doctors. Each has a valid basis for
demanding control over policy-making and organization. Any con-
flicts amongst these groups are disruptive of the smooth operation
of the hospital.” But when this power structure is analyzed from
*the patient’s perspective the potential for conflict seems clear, for
while the administration as delegate of the board has the respon-
sibility for the total care of the patient the doctor takes over the
actual treatment of the patient. Furthermore, while the decision to
grant or vary admitting privileges is made by the board, the re-
commendations and advice of the committees of doctors is cri-
tical.’2 All groups, including the doctors themselves, have expressed
some dissatisfaction with this structure. Therefore the scene within
the hospital is one of overlapping responsibilities, conflicting goals
and fragmented decision-making.’ 3
From outside its walls the modern hospital is shaped by legis-
lation and by the principles of corporation law. 4 The great body
10For a description of the position of the hospital administrator, see
McKerrow, The Roles and Responsibilities of a Hospital Administrator (1980)
1 Health Law in Canada 10: for a discussion of the doctor’s position, see
Read, The Physician’s Responsibility in Hospital Organization (1972) 49
Can. Hosp. (August) 53.
“Supra, note 10, 69-84.
12See Rozovsky, Canadian Hospital Law (1979), 77-85.
13See Kast & Rosenzweig, Organization and Management: A Systems
Approach (1970), 527-52.
14Rozovsky, supra, note 12, 7-14.
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of law which sets out the obligations and opportunities for free en-
terprise applies to the hospital since most Canadian hospitals are
operated as corporations; in addition, the hospital corporation is
further regulated by a significant volume of legislation. The primary
purpose of the provincial legislation is the control and licensing
of hospitals and the establishment of basic standards for their
operation. But the most potent legislation is that governing the pro-
vincial government insurance plans because it is the conduit through
which all operating costs of Canadian hospitals flow.1 Unfortunately
this funding scheme requires federal involvement with its attendant
policy changes and political tensions.’ 6
The policies and organization of hospitals are also affected’ by
decisions of the courts relating to their liability to patients.17 Since
the insurance taken by Canadian hospitals to cover the risk of liabi-
lity to a patient is contracted with private insurers, no statistics
are available, 8 but the marketplace dictates that risks must be
reduced and risk-management studies and programs are well estab-
lished in Canadian hospitals. Indeed, Professor Magnet has suggest-
ed that a duty to set up a risk-management system be imposed on
Canadian hospitals, and that failure to do so or to use care in
designing or administrating it should result in liability in con-
tract or tort.19
It is clear therefore that the legislatures and the courts play
a role in the development of the Canadian hospital.
III. The patient then and now
The first hospital patients were the cast-offs of society. The
middle and upper classes were treated in their own homes by
doctors who called on them there and they were cared for by
servants and family. It was only the indigent who went to the
hospitals, and the hospital and doctor provided their services gra-
15 See Linden, Changing Patterns of Hospital Liability (1966-67) 5 Alta L.
Rev. 212, 218. It is apparent that times have changed in Canada for the
hospital and the medical profession.
16See Van Loon, “From Shared Cost to Block Funding and Beyond: the
Politics of Health Insurance in Canada” in Meilicke & Storch, supra, note 8,
342-66.
17 See Picard, Legal Liability of Doctors and Hospitals in Canada (1978),
247-75.
18This should be contrasted with the situation of Canadian doctors, for
which the reader is referred to the annual reports of the Canadian Medical
Protective Association for interesting and valuable statistics.
19 Magnet, Preventing Medical Malpractice in Hospitals: Perspectives from
Law and Policy (1979) 3 Leg. Med. Q. 197.
1981]
COMMENTS – COMMENTAIRES
tuitously to such patients. A patient injured by either would have
had an extremely difficult time pursuing any compensation through
legal action.20 An action in contract might well have failed for lack
of intention, uncertainty of terms or lack of consideration.F1 An
action in tort might have been brought in trespass to the person
but consent could have been implied rather easily 2
It was the
negligence action of the mid-nineteenth century which first brought
an opportunity for a patient to demand, in a court of law, that a
hospital be held accountable for its actions. But the scope of such
an action was quickly restricted by the courts, as outlined earlier.
The two main bases for the liability of a hospital, namely a direct
duty of care and vicarious liability, were carefully controlled so as
to afford hospitals maximum immunity to the suits of patients.
The situation of the modem patient is very different. Today
the hospital is the primary institution for health care. It is in the
modern hospital that a patient can receive the best health care
available because that is where the skill, knowledge and judgment
of health-care professionals may be combined with modern medical
equipment and technology. Today a patient comes to hospital not
seeking charity, but highly skilled medical treatment and he might
well have had his name on a waiting-list before being admitted!
The modern patient pays for his hospital care through insurance
plans and through taxes, although one study points out that the
public lacks an accurate appreciation of the cost of their premiums
and the total cost of health care. 3
But the greatest contrast between patients of the earlier hospitals
and of the modern hospital lies in the legal relationships formed
with the hospital. Any legal relationship the early patient had with
a hospital was tenuous and if it gave rise to legal obligations the
courts interpreted them restrictively.2 4 The modem patient has
strong, well-defined legal relationships with his hospital. He has a
contract with the hospital, the terms of which are rarely express but
may be implied from legislation, hospital by-laws, conduct of the
parties and even public expectations.25 His relationship, in fact, with
a hospital is that of being a patient of the hospital and it gives rise
to certain duties owed to him by the institution. 26 The hospital must
20 See Picard, supra, note 17, 17-24.
21 Ibid., 51-8.
22 See Latter v. Braddell (1881) 50 L.I.Q.B. 448 (C.A.).
23 Le Riche, People Look at Doctors (1971), 103.
24 Supra, note 4.
25 See Picard, supra, note 17, 249-50.
2 6 See Hamson, “The Liability of Hospitals for Negligence” in The Law in
Action (1954), 19, 26-7.
McGILL LAW JOURNAL
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not violate his right to be free from unauthorized touching, 7 nor
injure him by carrying out its duties in a sub-standard manner.
The doctor-patient relationship likewise gives rise to certain duties
but it is crucial to any analysis of the patient’s position to remember
that, while these duties of hospital and doctor may be concomitant,
each set of duties is based on a separate and distinct relationship.
There is another relationship to which the patient is not a party
but which affects him nevertheless, that between the doctor and
the hospital. The doctor-hospital relationship is a contractual one,
whether the doctor has an express contract of employment or is a
private practitioner with certain rights granted to him by the
hospital to admit and treat patients.28 Thus, the modem patient
who has been injured while in hospital may have a cause of action
against the hospital in contract or in negligence 20 He may have
an action against his doctor as well.30
But the position of the patient in a suit against a hospital and
a doctor (or doctors) is awkward. For a portion of the relationship
he may have been very ill, or even unconscious. 31 Indeed he may
have died and the action taken is being conducted by his estate.
The patient or his legal representatives may not know which persons
should be named as defendants nor understand their relationship to
the hospital. For example, the terms of the contract between the
hospital and a doctor will not be known to the patient.2
27The action in battery is not discussed in this paper: see Picard, supra,
note 17, 63-91, esp. 88-91.
2SMore exactly, the hospital offers the “privileges” on certain terms and
the doctor accepts. The doctor enjoys the opportunity of using the hospital’s
facilities and staff in order to treat his patients. The hospital acquires the
services of a doctor in fulfilment of the most basic duty it has to its patients,
namely, to select competent staff so that patients may be attended by such
professionals, and also in fulfilment of the hospital’s responsibilities of
instruction, supervision and organization. Doctors on committees and on
call
in emergency rooms are essential to the hospital’s operation. Terms of
such a contract will be found in hospital policy, by-laws, and provincial
legislation: see Rozovsky, supra, note 12, 77-83; Louisell & Williams, Medical
Malpractice (1977), Vol. I, 507-9.
29 In the common law provinces the negligence action is more likely: see
Keith, Claims Arising Out of the Relationship between Hospital and Patient
[1963] Law Soc’y of Upper Canada Special Lectures 203. Magnet (supra, note
19, 198) has concluded that there is no difference between the two.
30 For a discussion of this action, see Picard, supra, note 17, 91-166.
3’Yepremian v. Scarborough General Hospital (1980) 28 O.R.
(2d) 494
(C.A.), rev’g in part (1978) 20 O.R. 510 (H.C.). A settlement out of court
precluded an appeal of this case to the Supreme Court of Canada: see The
Globe and Mail (Jan. 17, 1981), 1.
32 Speller, supra, note 15, 224.
19811
COMMENTS – COMMENTAIRES
But if the patient is unable to point to a defendant causing his
injury he may be precluded from relying on res ipsa loquitur.3
And even if he succeeds in ferreting out all defendants, the mass of
conflicting evidence raised by them in their attempts to heap lia-
bility on each other may be enough to confound a judge24 Further-
more, the source of knowledge regarding the occurrence that caused
his injury is within the institution he must sue and he may have
to take the hospital to court in order to obtain copies of his hospital
record 5 The proof of causation is exceptionally complex when the
human body is involved”0 and to succeed in such proof the patient
needs the assistance from other members of the medical profession
who may be reluctant witnesses.37 In summary, the modern patient
attempting to obtain compensation for an injury suffered in a
hospital is in an unenviable position. He may have extreme problems
of proof and because he may be seen by some to be biting the hand
that extended charity to him he may have to probe the gauze curtain
set up by the courts to protect the hospital from liability.
In general the hospital’s immunity has resulted from a restrictive
approach to the duties of care owed by hospitals, and a narrow
interpretation of the test for vicarious liability. These will now be
discussed.
IV. Limits to the hospital’s liability: the gauze curtain
A. The action in negligence
The liability of a hospital to a patient is most often determined
within the framework of the negligence action 8 As is the case
with any person or institution, a hospital may be liable because it
has been sub-standard in carrying out a duty it owes to a patient,
or it may be liable for the negligence of another on the basis of
vicarious liability. While it is important not to confuse the two, as
the nature and origin of the hospital’s liability in each case is quite
distinct, 9 they have in common the requirement that negligence be
found.
33 See Linden, supra, note 15, 224.
34 Hamson, supra, note 26, 19.
3 Stradzins v. Orthopaedic & Arthritic Hospital (1979) 22 O.R. (2d) 47
(H.C.); Mitchel v. St Michael’s Hospital, unreported (Ont. H.C.), June 6, 1980,
per Maloney J.
30 The difficulties are clear in Yepremnian v. Scarborough General Hospital,
supra, note 31.
37 See Picard, supra, note 17, 214-8.
38See Keith, supra, note 29.
McGILL LAW JOURNAL
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The ordinary principles of negligence law ought to apply to
hospitals. There is no basis upon which to hold that modern hos-
pitals should not be subject to its purview. As one author has
suggested:
surely a hospital ought not to be run much more carelessly than a
factory?4 0
This means that to be successful in a suit against a hospital a
paaient must prove that:
–
–
–
–
the hospital owed him a duty of care;
the hospital breached the requisite standard of care in carry-
ing out its duty;
he suffered a loss thereby;
the hospital’s action was the cause in fact and the proximate
cause of his injury.
The hospital then has all of the usual defences available to it: the
expiry of the limitation period, error of judgment, adherence to ap-
proved practice and contributory negligence of the patient. There
does appear to be an anomaly in Canadian law in that the proof by
a hospital that it was following approved practice may be a conclu-
sive defence. By contrast, the effect of this defence for other de-
fendants is merely to raise a prima facie case that the standard of
care has been met.41
An analysis of the negligence action in general has been un-
dertaken in other writings, 42 but the critical first principle of duty
of care merits examination in more depth because it is a potent
control-device by which the courts may restrict liability.43
B. The duties owed by hospitals to patients
A duty of care is found where there is a relationship between
the parties such that each is required to avoid acts or omissions
which could be foreseen as likely to injure the other. In each case,
including those where the purported relationship is with a hospital,
the relationship must be examined closely; for while the finding
liability has been obscured:
39 See Salmond on Torts, 17th ed. (1977), 459-60. One author has pointed
out that an undue concentration on vicarious liability has meant that the
hospital’s “direct”
see Magnet, Corporate
Negligence as a Basis for Hospital Liability (1978) 6 C.C.L.T. 121.
4o Hamson, supra, note 26, 19.
41 See Picard, supra, note 17, 178-80.
4 2 See Rozovsky, supra, note 12; Picard, supra, note 17.
43 For an excellent analysis of the use and abuse of the duty concept, see
Smith, “The Mystery of Duty” in Klar, Studies in Canadian Tort Law (1977), 1.
1981]
COMMENTS – COMMENTAIRES
of a duty is a matter of law the scope of that duty is a matter of
fact. Hence the necessity that a court carefully review the patient,
the hospital and the relationship between them in each case. As one
authority noted” there has been a tendency of the courts not to
make this individual assessment but to generalize and impose uni-
form obligations on hospitals without taking into account the unique
features of each case. This seems particularly inappropriate when
it is true that each patient has a contract with his hospital with
terms unique to their relationship.
What information might be relevant to the decision as to whether
a hospital owes a duty of care to a patient? A statute may create
a duty or support the creation of a duty and may affect the scope
given to it. 45 There is a large body of law and commentary on the
effect of statutes in negligence law and this is applicable to the
hospital-patient cases. 46 In Canada, relevant statutes would include
the provincial hospital acts, health insurance acts and, of course,
the attendant regulations. 47 By-laws of the hospital or regulations of
professional bodies ought also to be scrutinized.48 The justification
for reference to these sources and perhaps for reliance on them is
that they reflect the needs and expectations of the population and
the commitments of institutions and professions. However, it should
be recognized that these sources are inert and consequently may be
slow to reflect such needs and expectations.
Another significant basis of a duty is the undertaking of a party,
such as a hospital, to provide a service to a patient especially when
the patient relies on the undertaking.49 It is interesting to note that
a contractual relationship between parties may reinforce the estab-
lishment of a duty in negligence.50 There is a very practical reason
for finding a duty in such circumstantes: the party relying on the
undertaking does not look/further for his needs. If he relies on
anothO, and does so reasonably and to his detriment, basic prin-
cipl 9 of tort law support his right to be compensated.51
44 Nathan, Medical Negligence (1957), 133: see also Fleming, Developments
in the English Law of Liability (1959) 12 Vanderbilt L. Rev. 633, 637.
45 For the situation in England, see Speller, supra, note 2, 13-7.
46 See Linden, Canadian Tort Law, 2nd ed. (1977), 155-218.
47See Yepremian v. Scarborough General Hospital, supra, note 31.
4 For a comment on the U.S., see Magnet, supra, note 39, 124-7.
49 Barnett v. C. & K. Hosp. Management Committee [1969] 1 Q.B. 428;
5OBaxter & Co. v. Jones (1903) 6 O.L.R. 360 (C.A.).
51 Cf. Hedley, Byrne & Co. v. Heller [19643 A.C. 465 (H.L.) and the myriad
Linden, supra, note 46.
cases that follow it: see Linden, supra, note 46.
McGILL LAW JOURNAL
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There is modern authority for the statement that a hospital
assumes a duty of care to a patient when it undertakes to do any-
thing which can be construed as covering the scope of the duty of
care in issue.52 The nature of the undertaking is the hard question.
In theory, a hospital could undertake to provide a wide range of
services and care to its patient. Some would no doubt encroach on
the undertakings of the other party whose relationship is present,
namely a doctor. This might detrimentally affect his means of inde-
pendent income and violate the rules of his association.
It might
also appear to provide overlapping obligations .to the patient in
that a service offered by a hospital would also be offered by the
medical profession and the appropriate insurance would be taken
by each to cover any possible negligence. Should any of these
factors be compelling enough to destroy or sterilize the duty that
would otherwise be owed by the hospital to a patient? If the
answer be yes, then even if the patient will be compensated from
other sources, the hospital is enjoying a favoured position in tort law.
Occasionally in tort law there is a recognition by a judge that
a new duty must be created because of the values and interests and
relationships that merit the protection of the law. Cases such as
Donoghue v. Stevenson,” Hedley Byrne & Co. v. Heller,”, Dutton
v. Bognor Regis56 and in Canada Bhadauria v. Seneca College” come
to mind. A court faced with the challenge of bringing forth a “new”
duty of care often labours under the burdens of old jurisprudence
and obsolete ideas. What it requires is an updating of its information
and the introduction of new evidence, to show that critical relation-
ships have changed, institutions have evolved, and so new law
must be made. When the duty in issue is of a hospital to a patient
one author has expressed this expectation:
When the case of, say a visiting hospital surgeon comes before the
House [of Lords] for determination, it will, it is hoped, be the occasion
for the establishment of one of the most important relationships governed
by common law on firm, modern foundations, in a manner comparable
to the modern statement of the tort of negligence
in Donoghue v.
Stevenson.58
52Nathan, supra, note 44, 13: see also Speller, supra, note 2, 2534.
53There is a prohibition against anyone but a licensed physician practising
medicine, according to the various provincial statutes governing physicians.
54 [1932] A.C. 562 (H.L.).
55 Supra, note 51.
56 [1972] 1 Q.B. 373 (CA.).
57 Bhadauria v. Board of Governors of Seneca College (1979) 27 O.R. (2d)
143 (C.A.), rev’d June 22, 1981 (S.C.C.).
58 Grunfeld, Recent Developments in the Hospital Cases (1954) 17 M.L.R.
547 (fn. omitted).
1981]
COMMENTS – COMMENTAIRES
These sources have given rise to courts holding that specific duties
are owed by hospitals to patients.
The earliest duty of care held to be owed by a hospital to a
patient was to select competent staff in order that patients would
be attended by skilled persons. At first this duty was very narrowly
interpreted. A hospital had only to ascertain that its professionals
were qualified and competent. This seemed to be the scope of its
direct or personal or corporate duty of care. 9 The hospital then
assumed liability for the administrative acts of such professionals
and eventually for their professional actions, provided they were
employees. Such liability was not, however, of the direct type but
was based on the concept of respondeat superior. This vicarious
liability for professional employees finally came about in 1942 and
an obvious and expansive immunity enjoyed by hospitals was
dropped.60
The scope of the direct duty was expanded, first to include the
instruction and supervision of personnel employed by the hospital
and then to the provision of the systems and organization to co-
ordinate these activities so that the patient received reasonable
care.”‘ Since a patient is treated in a physical plant with equipment
and medical tools, it is not suprising that hospitals were also given
a direct duty to provide and maintain proper facilities and equip-
ment.O
There is some authority for the existence of other duties but
often it is not clear whether the court was basing the hospital’s
accountability on grounds of direct liability or vicarious liability.
These include a duty to establish procedures to prevent patients
from harming themselves or being injured by other patients.4 There
are some older cases from which it might be concluded that a
hospital has a duty to set up aseptic procedures and to protect
patients and even visitors from infection.”
Though in theory it is possible for further duties to be created,
a review of the cases 5 reveals that the courts have been most
69While the three terms are synonymous and refer to the “normal” duty
of care, all are used by various authors who wish to be understood as
differentiating this from vicarious liability.
60 See Picard, supra, note 17, 261-4.
61 Ibid., 251-9. The duty to provide organization could be expanded to
include the provision of medical treatment by doctors who are not employees:
see Nathan, supra, note 44, 144.
62 Picard, supra, note 17, 259-61.
63 Ibid., 257-8.
64Ibid., 257: see Nathan, supra, note 44, 103.
65 See generally Picard, supra, note 17, 248-61.
McGILL LAW JOURNAL
[Vol. 26
cautious when contrasted with their attitude respecting negligence
law in general. 66
In summary, the precedents support these possible direct duties
of a hospital to a patient:
a) to select competent and qualified employees
b) to instruct and supervise them
c) to provide proper facilities and equipment
d) to establish systems necessary to the safe operation of the
hospital.”
Since the-other components of tort law apply, the hospital has
to carry out these duties as competently as the reasonable hospital
in the circumstances and, even if found sub-standard, would have to
be found to have caused the patient’s injuries before liability would
result. All of the protection of tort law normally available to de-
fendants is available to the hospital.8
The quality of the duties owed by a hospital has led to their
sometimes being referred to as “non-delegable.”0 9 This has the sig-
nificant effect of making the employer of an independent contract-
or strictly liable for any negligence of the contractor in carrying
out the duty of care which was the employer’s but which he had
contracted or delegated to the independent contractor. This is an
exception to the general rule that an employer is not liable for the
negligence of an independent contractor employed by him. A brief
look at the history of a non-delegable duty of care and the con-
troversy surrounding it70 may assist in understanding its implica-
tions for hospital liability.
The first case in which a duty was held to be non-delegable was
Pickard v. Smith7′ in 1861. The plaintiff had fallen into a hole left
open by coal merchants employed by the defendant to deliver coal.
The trial judge set out the general law:
Unquestionably, no one can be made liable for an act or breach of duty,
unless it be traceable to himself or his servant in the course of his or
their employment. Consequently, if an independent contractor is em-
ployed to do a lawful act, and in the course of the work, he or his
66 Linden, supra, note 46, 264.
6 7See Picard, supra, note 17, 251-6; Rozovsky, supra, note 12, 16-7.
68 Picard, supra, note 17, 169-95.
69 Yepremian v. Scarborough General Hospital, supra, note 31; Gold v.
Essex County Council [1942] 2 K.B. 293, 297 (C.A.) per Lord Greene, M.R.;
Cassidy v. Minister of Health [1951] 2 K.B. 343, 359 per Denning L.J.; see also
Nathan, supra, note 44, 123, 129, 132.
70 See Atiyah, Vicarious Liability in the Law of Torts (1967), 327-50.
71 (1861) 10 C.B.N.S. 470, 142 E.R. 535 (C.P.) (hereinafter cited to E.R.).
1981]
COMMENTS – COMMENTAIRES
servants commit some casual act of wrong or negligence the employer
is not answerable.
But he went on to describe the nature of a duty that would be
non-delegable:
The rule is, however, inapplicable to cases in which the act which
occasions the injury is one which the contractor was employed to do;
nor, by a parity of reasoning, to cases in which the contractor is entrusted
with the performance of a duty incumbent upon his employer, and neg-
lects its fulfilment, whereby an injury is occasioned.72
The non-delegable duty of care concept was also being formed
in cases involving statutory duties,7 3 but it was in 1881 in the case
of Dalton v. Angus 74 that the concept came to life, albeit in a rather
skeletal form. Lord Blackburn said:
a person causing something to be done, the doing of which casts on him
a duty, cannot escape from the responsibility attaching on him of
seeing that duty performed by delegating it to a contractor. He may
bargain with the contractor
the duty and
stipulate for an indemnity from him if it is not performed, but he
cannot thereby relieve himself from liability to those injured by the
failure to perform it. 5
that he shall perform
Atiyah comments”
that this dictum has been used to justify the
imposition of liability for the acts of independent contractors in a
wide variety of circumstances.
Therein lies the greatest problem with the characterization of
a duty as non-delegable.77 It is impossible to predict with certainty
when it will happen. Williams, who is the greatest critic of the
concept, says:
The truth seems to be that the cases are decided on no rational grounds,
but depend entirely on whether the judge is attracted by the language
of nondelegable duty.78
Chapman79 (now Mr Justice Chapman), whose strong support
for the concept helped breathe life into it, agreed that it is not easy
to discriminate between delegable and non-delegable duties but said
the test should be:
72 Ibid., 539 (emphasis added).
73 Atiyah, supra, note 70, 328-9: note that the learned author observes that
in one case a court “prayed in aid the analogy of contract”. The hospital-
patient relationship is, of course, a contractual one and may be affected
by statute.
74 (1881) 6 App. Cas. 740 (H.L.).
75 Ibid., 829.
7 OSupra, note 70, 332.
77 Fleming, The Law of Torts, 5th ed. (1977), 377-8.
78 Williams, Liability for Independent Contractors [1956] Camb. L.. 180, 186.
79 Chapman, Liability for the Negligence of Independent Contractors (1934)
50 L.Q.R. 71.
McGILL LAW JOURNAL
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whether there is imposed on the person by the nature of the acts he is
getting done a duty to those people whom as a reasonable man he
ought to foresee as being affected by the performance of those acts.80
Thus the test refers to the “nature of the acts” undertaken by
the employer. Fleming 8’ discusses the kinds of cases where non-
delegable duties have been found and notes that the list is “long
and diverse” extending from dangerous situations, hazardous sub-
stances, fire, lateral support for land, maintenance of premises abut-
ting a highway to instances where the duty would normally be to
use reasonable care but where the designation of the duty as non-
delegable assures that care will be taken (provision of a safe system
of work, compliance with statutory safety standards, responsibili-
ties of occupiers of land to certain others and of hospitals to care
for their patients). Fleming includes hospitals in the latter category
because of the judgments in Cassidy v. Minister of Health82 and
Roe v. Minister of Health.3 In the Cassidy case Denning L.., in
deciding the scope of a hospital’s duty to a patient for medical
treatment, said:
I take it to be clear law, as well as good sense, that, where a person
is himself under a duty to use care, he cannot get rid of his responsibility
by delegating the performance of it to someone else, no matter whether
the delegation be to a servant under a contract of service or to an in-
dependent contractor under a contract for services. Lord Blackburn laid
that down on many occasions; see Tarry v. Ashton (67) [(1876) 1 Q.B.D.
314, 319] Dalton v. Angus (68)
[(1881) 6 App. Cas. 740, 829] and Hughes
v. Percival (69)
[(1883) 8 App. Cas. 443, 446]; and so have other great
judges, see per Parke, B., in Grote v. Chester and Holyhead Ry. Co. (70)
[(1848) 2 Ex. 251, 254], and in Pickard v. Smith (71)
[(1861) 10 C.B. (N.S.)
470, 480]; see also per Lindley, L.J., in Hardaker v. Idle District Council
(72) [[1896] 1 Q.B. 335, 340] and per this court in Woodward v. Hastings
Corporation (73) [[1945] K.B. 174, 182].84
What justification is there for construing the nature of a duty
to be delegable or non-delegable? Glanville Williams8 5 has said there
is none and called the non-delegable duty a logical fraud. But
Atiyah points out” that most learned American writers not only
find it valid to impose liability for the acts of independent contract-
80 Ibid., 76. For a strong criticism, see Williams, supra, note 78, 194 (em-
phasis added).
81Fleming, supra, note 77, 378: citations to relevant case law may be
found therein.
82 Supra, note 69.
83 [1954] 2 Q.B. 66 (C.A.).
84 Supra, note 69, 363 (footnotes included). Note that he cites all the old
authorities regarding non-delegable duty.
85 Williams, supra, note 78, 193.
86 Atiyah, supra, note 70, 333.
1981]
COMMENTS – COMMENTAIRES
ors but they would extend liability even further. The critical ques-
tion as they see it is who should shoulder the risk. Should it be the
employer, as is the case when a duty is set as non-delegable, or
should it be the independent contractor as is the case otherwise?
References to the reasons enunciated for the doctrine of respond-
eat superior, wherein an employer is responsible for the torts of
his employee, would seem to suggest that it should be the employer,
since the employer benefits from the contractor’s work, he chooses
the contractor, he can set up the relationship on terms satisfactory
to him, and so on. Furthermore, the employer can make arrange-
ments to cope with a risk for which he may have to pay because, as
Atiyah notes,8 7 the employer of an independent contractor is en-
titled to be indemnified for liabilities imposed by the contractor
on the employer. In describing one justification for making an em-
ployer liable for an independent contractor’s negligence by way of
the non-delegable duty, Atiyah uses the example of the hospital.
There is another factor, too, which ought to be borne in mind. We have
already called attention to the way in which the man in the street tends
to personify an organisation and treat it as a composite entity which
ought in justice to pay for damage which “they” have caused. In many
circumstances there is little doubt that the man in the street would
find it hard to grasp the law’s fine distinctions between a servant and
an independent contractor, and would not wish to enquire too closely
into the precise relationships existing in one organisation. This is
particularly true where the liability is of a contractual or semi-contractual
nature, as e.g. in the case of hospitals. A person injured through the
negligence of someone in a hospital tends to think of the hospital as a
unit which ought to be responsible for the consequences, and he is un-
likely to be impressed by arguments that the negligent party was, say, a
visiting consultant who ought to be treated as an independent con-
tractor.88
An interesting corollary to the proposition stated by Atiyah is
the point made earlier that the patient injured in a hospital often
has a complex problem in sorting out the cause of his injury and
the persons involved.
With this background it is possible to come to an opinion as to
whether it is appropriate that a particular duty of care owed by a
hospital to a patient should be of the non-delegable type. Once again
the point must be made that this decision must be made for each
case and only after a thorough examination of the hospital-patient
relationship involved. 9 A recent case provides an excellent oppor-
tunity to examine such a relationship.
8TIbid.: it is interesting to note the comments of Holland J. to the same
effect in Yepremian, supra, note 31, 534.
88 Supra, note 70, 335.
89 See text at notes 40 and 41, supra.
McGILL LAW JOURNAL
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In Yepremian v. Scarborough General Hospital0 a comatose
patient nineteen years of age was brought to the emergency depart-
ment of the hospital by his parents. He was clearly very ill and was
transferred to the intensive care unit under the name of Dr Rosen,
not because he or his family had chosen Dr Rosen but because the
organization by the hospital corporation put Dr Rosen on call in
emergency at the critical time. Dr Rosen was held by all judges
to be negligent and as a result of his negligence the patient suffer-
ed a cardiac arrest and serious permanent injury. Dr Rosen was
not an employee of the hospital but had admitting privileges there.”1
He was not sued. The issue on appeal was whether the hospital was
liable for Dr Rosen’s negligence. The trial judge held it was while
the Court of Appeal, by a three-to-two majority, held it was not.
On analysis it seems that the six learned justices who heard the case
(five on appeal plus the trial judge) agreed that the appropriate
duty of care, namely to provide non-negligent medical services to
Yepremian, was of the non-delegable type, but they split equally
on the issue of whether the relationship between Yepremian and
the Scarborough General Hospital created such a duty.
The relationship between the patient and the hospital arose when
the very ill patient was taken into the hospital’s emergency depart-
ment by hospital employees. 2 The duties the hospital then assumed
would have been those set out earlier 9 3 including a duty to set up
such systems as are necessary for the proper treatment of the
patient. The system which the hospital had set up for treating a
patient such as Yepremian included assigning the internist on call
to his case. Dr Rosen was the internist and was on call as part
of his contract with the hospital for privileges. Could this duty
include an undertaking by the hospital to provide proper or non-
negligent medical treatment? The answer is that it has been so held
‘in some cases where the medical treatment was given by an em-
ployee of the hospital.9 4 But the facts of the case were that the
medical treatment was given by an independent contractor. Thus,
the consequence of finding a duty to provide medical treatment
by an independent contractor in the Yepremian case, if the duty
90 Supra, note 31.
91 As Dr Rosen’s negligence was found to be the effective cause, two other
doctors found negligent were protected from liability; see Picard, [Comment]
Yepremian v. Scarborough General Hospital (1980) 14 C.C.L.T. 81.
22 Barnett v. C & K Hospital Management Committee, supra, note 49.
93 Yepremian v. Scarborough General Hospital, supra, note 31, 522-3.
94 See, e.g., Aynsley v. Toronto General Hospital [1972] S.C.R. 435; Fraser
v. Vancouver General Hospital [1952] 2 S.C.R. 36.
1981]
COMMENTS – COMMENTAIRES
was held to be non-delegable, would be to make the Scarborough
General Hospital liable to Yepremian for the negligence of Dr
Rosen, a specialist on call with privileges at the hospital. There
is no precedent for the liability of a hospital on such a basis al-
though various authorities have been predicting it for many years 5
Thus, the decision as to whether the duty was non-delegable
determined the liability of the hospital. The only way to assure
the hospital’s immunity to liability would be to hold that there
was no duty to provide medical treatment owed by the hospital to
the patient. This, indeed, was the conclusion of the majority of the
Court of Appeal of Ontario in the Yepremian case.
Assuming, as the other three learned justices did, that there is
such a duty, were all six justices correct in concluding it should be
non-delegable? By the best test available, 6 one must look at “the
nature of the acts” undertaken by the employer. The hospital under-
took to provide what the patient was seeking and required and what,
by statute, it was required9″ to give. Thus there were contractual
and statutory aspects to the acts. The nature of the undertaking
by the hospital, to provide basic, critical diagnosis and treatment
would seem to bring it within the ambit of cases outlined by
Fleming,9 8 wherein it must be assured that care will be taken. This,
of course, has been forcefully argued by Lord Denning 99
Did the nature of the undertaking justify placing on the hospital
the risk of the injury suffered by Yepremian? The hospital as an
institution offered Dr Rosen those privileges that he had and the
“on call” system was a benefit to him for the patients he obtained
through it; it was also a benefit to the hospital for it helped the
hospital fulfill its duty to operate emergency services and allowed
it to admit persons in need of active treatment. Furthermore, it was
the hospital-employer rather than the independent contractor-doctor
who was in the best position to monitor risks and improve the
systems involved.100 Since the granting of privileges at the Scarbo-
95 See Speller, supra, note 2, 2534; Nathan, supra, note 44, 144-5.
9 See Chapman, supra, note 79, 76.
9 7 See Yepremian, supra, note 31, 524-5 per Holland J. In the Court of
Appeal, however, Arnup J.A. says (supra, note 31, 512) that there is no express
obligation in acts or regulations to provide competent medical care but that
these are predicated “on the existence of an obligation to see [that] such care
is provided.”
98 Supra, note 77, 378.
99 Cassidy v. Minister of Health, supra, note 69; Roe v. Minister of Health,
supra, note 83.
100 See Linden, supra, note 15, 224.
1014
McGILL LAW JOURNAL
[Vol. 26
rough General Hospital, as with most hospitals, was for a term of
one year, the hospital was in a position to withdraw or renegotiate
these privileges.’ 0′ It could have arranged in a formal way for the
doctor to have undertaken to indemnify the hospital. The trial judge,
Holland I., noted the possibility of such a right in the Yepremian
case. 02 Of interest in this regard is the arrangement in England
between the Medical Defence Union, which acts as an insurer of
doctors, and the hospitals. When a doctor who is a member of the
Union is sued the hospital joins in defending the case. If liability
is found the two parties bear the proportionate share that they
have agreed upon or, in the absence of agreement, an equal share.103
Atiyah has made the point set out earlier’04 that the nature of
the hospital as a complex institution about which the patient knows
very little would justify making an employer liable as for a non-
delegable duty. It seems then that the learned justices were correct
in concluding that the duty, if found, should be non-delegable.
But the Scarborough General Hospital was exonerated because
the majority of the Ontario Court of Appeal held that there was no
duty of care owed by it to Yepremian in the circumstances. The con-
cerns of Mr Justice Arnup (with whom Mr Justice Morden con-
curred on this point) and McKinnon A.C.J.O. about creating such a
duty are best expressed by the Associate Chief Justice:
It was pressed upon us, and I think properly, that the medical pro-
fession and hospitals have ordered their professional lives and practices
in a particular way in this province for many years. The practice of
medicine and the operation of hospitals have been conducted on the
understanding and belief that the law established and supported the inde-
pendence of the medical profession, in the manner in which they prac-
tised, free from the control and direction of Hospital Boards, unless
they were servants or employees (as those words are commonly un-
derstood) of the hospital. The courts hitherto have supported this view.
No matter how much our sympathies may be engaged in a particular
case, in my view to reverse the longstanding experience and law would
be to enter into a matter of policy, the consequence of such entry
being unexamined and unknown to us, and which requires public debate
and consideration. I do not view the issue as a novel one –
quite the
contrary. It is an issue which, if change were to be effected, would now
require the legislative intervention based on a consideration of all the
ramifications of such change, particularly its effect on public institu-
tions and on a profession which has cherished its independence. To alter
0’iRe Schiller and the Board of Governors of the Scarborough General
Hospital (1975) 9 O.R. (2d) 648 (C.A.).
‘o2 Supra, note 31, 535.
0 3 See Grunfeld, supra, note 58, 554; Speller, supra, note 2, 262.
‘
104 Supra, note 88.
19811
COMMENTS – COMMENTAIRES
1015
the legal position now by judicial legislation would not, in my view,
be appropriate.
The present legal situation, even though one might conclude it would
to fix hospitals with re-
be “better” or “fairer” or “more logical”
sponsibility for the negligence of doctors who are carrying out their
medical duties by virtue of having been granted “hospital privileges”,
does not, of course, prevent injured parties from suing the negligent
doctors. If that had been done in the instant case the court would not,
I am sure, have been faced with the task of seeking to establish a new
principle by destroying an old one and declaring a liability relation-
ship based on facts and circumstances that have long existed in this
province and which have hitherto been otherwise interpreted.105
Mr Justice Blair dissented and after a most thorough analysis
of all the relevant cases and authorities decided that a duty of
care could and did exist. He said:
The recognition of a direct duty of hospitals to provide non-negligent
medical treatment reflects the reality of the relationship between hospitals
and the public in contemporary society. This direct duty arises from
profound changes in social structures and public attitudes relating to
in the function of
medical services and the concomitant changes
is obvious that as a result of these
hospitals in providing them. It
changes the role of hospitals in the delivery of medical services has
expanded. The public increasingly relies on hospitals to provide medical
treatment and, in particular, on emergency services. Hospitals to a
growing extent hold out to the public that they provide such treatment
and such services.106
About the concern that judges should not change the law to reflect
a change in society, he said:
When confronted with a novel situation, the court makes a policy
decision whether it decides to expand the area of liability or refuses
to do so. It expresses a view, on either case as to what “ought” or
“ought not” to be done. Whatever decision is made in this case will
be open to legislative review; but that fact does not, in my respectful
opinion, relieve the court of its obligation to reach a decision on the
case presented to it.107
Mr Justice Houlden also dissented and, like Arnup J.A., held there
was a duty of care.10
It is submitted that the majority of the Court of Appeal of
Ontario were loathe to find that the hospital owed the patient a
duty of care because they were unprepared to find the hospital
105 Yepremian, supra, note 31, 535-6 (C.A.). For a comment expressing con-
cers about expanding hospital liability, see Magnet, supra, note 39, and, by
the same author, Liability of a Hospital for the Negligent Acts of Profes-
sionals (1977) 3 C.C.L.T. 135.
1 06 Yepremian, supra, note 31, 560-1.
107 Ibid., 545.
108 Ibid., 562-4.
McGILL LAW JOURNAL
[Vol. 26
liable. An alternative for them would have been to find a duty but
hold that it could be delegated to an independent contractor.
Thus, even today, when the hospital is a complex business
entity rather than a house of charity, and the patient pays for the
services (both directly and indirectly) and is not a gratuitous guest,
the hospital is protected by its history.
C. Vicarious liability of hospitals
An alternative basis for the liability of a hospital is based on
the doctrine of respondeat superior. It is an older and more settled
area of law in regard to hospitals than that of direct, or personal
or corporate duty.109 All of the principles of the law of vicarious
liability are applied to hospitals, but therein lies the problem. Those
principles, set up for masters and servants, shop keepers and
clerks, do not fit the hospital and its professional staff. But most
courts doggedly try to stretch the old garments to fit the new flesh.
The concept that was the material measurement of vicarious liabili-
ty, the control test, no longer covers modern hospital-doctor rela-
tionships. The new, more viable organization test, has yet to be
worked into Canadian law. The reluctance of courts to move toward
the more modern approach has resulted in a restriction in the
liability of hospitals.110
The reasons for making an employer jointly liable for the torts
of his employees are generally said to be that: the person whose
economic interests are advanced should have to pay for any loss
and will be in a better position to do so than his employee; the
employer will be motivated to set up accident prevention programs
and choose the most competent employees; the employer has the
choice of hiring and dismissing his employee.”‘ But authorities 12
agree that the concept of vicarious liability with the banner of re-
spondeat superior is a vehicle to achieve a goal that seems fair and
necessary. If X “sets up a situation” whereby through Y he achieves
an end he needs or desires, should not X be held accountable for
the consequences? When the concept was first introduced the
master’s control over the servant was the justification for holding
the master answerable for what occurred through the acts of his
servant.”13 But control of that type is most uncommon today. Indeed
109 See Grunfeld, supra, note 58, 549-50.
11O See Magnet, Vicarious Liability and the Professional Employee (1978)
6 C.C.L.T. 208: see also Kahn-Freund, Servants and Independent Contractors
(1951) 14 M.L.R. 504.
-11 Fleming, supra, note 77, 355.
112 See Salmond on Torts, supra, note 39, 457.
1981)
COMMENTS – COMMENTAIRES
almost from the moment the control test went into service its
deficiencies were obvious. 1 4 There is a strong consensus among
authorities that it is in respect of its application to professional
persons that the control test has broken down.115 An employer of a
professional such as a doctor may know nothing about the practice
of medicine. He is not only not in a position to control the doctor
but if he attempts to do so will find that the employee has exercised
his own form of control over the situation and quit.
That the control test alone is ineffectual in the hospital setting
has been clear since the case of Cassidy v. Minister of Health,”1
where it was held that a hospital is liable for the negligence of a
doctor employed on a fulltime basis by it. One author has suggested
that the Cassidy case discarded the traditional control test, 1 7 while
another has said the hospital cases have emphasized the bank-
ruptcy of the control test.”8
In Canada there are now cases 1 9 where a hospital has been held
liable for professionals such as doctors and nurses over whom it
could not be said it had control in the traditional sense of being
able to tell the professional what to do and how to do it.
Thus it seems the control test is not providing a credible, reliable
measure of when there should be a shift in bearing the loss from the
professional who has caused the negligence to the institution re-
sponsible for entering into a relationship with him in order to carry
out its functions. Put succinctly, the hospital (X) is achieving many
of its ends through professionals (Y). In terms of the “rough just-
ice”‘ sought to be achieved through the concept of vicarious
liability, when should X (a hospital and in law a reasonable person)
be held accountable for the negligence of Y (a professional) ? Surely
the answer is when Y is an integral part of X and is making it
possible for X to fulfill its duties and obligations. This theory for
determining whether liability should be borne by X has been given
a name: the organization test. Fleming’2 ‘ has described the or-
ganization test as asking whether Y’s work was subject to co-
ordinated control as to the when and the where rather than the how.
113See Atiyah, supra, note 70, 40.
114 Ibid., 41-4.
115 Ibid., 46. See also Fleming, supra, note 77, 360; Salmond on Torts, supra,
note 39, 462; Nathan, supra, note 44, 123.
“i6 Supra, note 69: see also Kahn-Freund, supra, note 110.
11 See Fanjoy, Comment (1952) 30 Can. Bar Rev. 423.
118 Grunfeld, supra, note 58, 550.
119 See Picard, supra, note 17, 265-6, 271-4; Rozovsky, supra, note 12, 18.
12o Salmond on Torts, supra, note 39, 457.
McGILL LAW JOURNAL
[Vol. 26
This test has been accepted and appplied by the Supreme Court of
Canada,’1 22 and in a recent case 1 23 in the Supreme Court of Ontario
it was used by Linden J. to find one dentist to be the employee of
another. The learned justice’s decision in that case highlighted the
need to examine all of the evidence in each case and to avoid the
temptation to generalize about relationships involving hospitals.
These cases have been adjudged “good law” by Professor Magnet.’24
However, Atiyah 125 warns against attempting to formulate an
ultimate test for differentiating between those for whose negligence
an employer will be liable (employees, those in a contract of ser-
vice) and those for whom he will normally not be liable (indepen-
dent contractors, those in a contract for services). Indeed, various
authorities have suggested formulating a flexible set of guidelines
to be considered in judging each case. 26 Professor Magnet has put
it in this way:
We need to keep a steady eye on what we have got for, applied blindly,
in latin, vicarious liability can do great damage and cause enormous
uncertainty; applied in harmony with principle, as a transmogrified and
innovative doctrine, it can further the great ideals of justice current in
our time.’2 7
In Yepremian v. Scarborough General Hospita’ 28 the possibility
of vicarious liability of the hospital was not pursued by any of the
six learned justices. The trial judge noted that Dr Rosen was not
paid by the hospital but by the patient through the health carel
plan, and concluded that Dr Rosen was not an employee of the
hospital. 2 9 The majority of the Court of Appeal accepted this con-
clusion, 30 while Mr Justice Blair in his dissenting judgment said:
It is preferable, in my opinion, to recognize the true position of the
doctors in these cases as not being servants of the hospital rather than
to found vicarious liability on a fictional master-servant relationship.’ 3′
From examining the evidence reported in the case it can be
argued that Dr Rosen would have been an employee had the or-
121 Supra, note 77, 36; Atiyah, supra, note 70, 47.
122 Co-op Insurance Assn v. Kearney [1965] S.C.R. 106. The employee was
an insurance agent.
123Kennedy v. C.N.A. Assurance (1978) 20 O.R. (2d) 674 (H.C.).
12 4 Supra, note 110, 226.
125Supra, note 70, 38.
126 Ibid.; Kahn-Freund, supra, note 110, 507; Magnet, supra, note 110, 220.
127 Supra, note 110, 226.
‘ 28 Supra, note 31.
129 Ibid., 522 (H.C.).
1301Ibid., 513 (CA.) per Arnup J.A.
13’ Ibid., 558 (C.A.).
19811
COMMENTS – COMMENTAIRES
ganization analysis been applied by the courts, because the systems
in operation in the Scarborough General Hospital subjected Dr
Rosen to co-ordinated control as to the when and the where in
regard to his medical treatment of Yepremian. Dr Rosen was the
internist on call at the time Yepremian was admitted (the when) to
the Scarborough General Hospital emergency department and
thence to the intensive care unit by virtue of the privileges Dr Rosen
was granted (the where). It is important to remember that under
the concept of vicarious liability the liability of the employer and
employee is joint and thus the employee is liable too. The em-
ployer has the right to be indemnified. Therefore a hospital could
seek indemnification from a negligent doctor held to be an em-
ployee.3 2 The point is not to conclude that there should have been
vicarious liability for Dr Rosen’s negligence but that the issue
should have been addressed more freely.
Thus today, with a longstanding recognition
that vicarious
liability should be determined from analyses far broader in scope
than that of the control test, the liability of hospitals is being
decided by reference to a narrow, outdated test that by its very
nature protects the hospital from liability for a large number of
professionals who facilitate the achievement of hospital objectives.
The issues raised by the Yepremian case highlight the alterna-
tives for the modern Canadian hospital: continued immunity or a
new accountability to the public.’3
Ellen Picard*
132 See Fleming, supra, note 44, 639. Note the arrangement made in England
by hospitals and doctors (see note 103, supra).
133 There was no appeal of this case to the Supreme Court of Canada:
see note 31, supra. For future purposes, perhaps the recent decision of that
Court on consent involving the doctor-patient relationship augurs well for
the patient in the hospital-patient relationship: see Reibl v. Hughes (1980)
114 D.L.R. (3d) 1 (S.C.C.).
* Professor of Law, University of Alberta.
