In 1978, Justice Holland decided Yepremian v Scarborough General Hospital, a medical malpractice case in which the delayed diagnosis of Tony Yepremian’s (“Tony”) diabetes was found to have caused his brain injury. In the early course of Tony’s admission to Scarborough Hospital (“the Hospital”), prior to his diagnosis, he had been treated in the intensive care unit by an internist, Dr. Rosen. At trial, Justice Holland found that Dr. Rosen breached the standard of care and that his breach was causative of Tony’s injury. The only problem: Dr. Rosen had not been sued.
In finding for the plaintiffs, Justice Holland held that the Hospital owed a non-delegable duty of care to provide quality care to Tony and, in the circumstances, that it was liable for the negligence of Dr. Rosen. Unsurprisingly, the Hospital appealed. The Court of Appeal (“ONCA”) framed the central question: “Does the hospital undertake to provide that medical care, or does it undertake to select competent doctors who will provide it?”1 Although the appeal was allowed, the dissent was strong. Both Justice Blair and Justice Houlden shared the trial judge’s view that the hospital should be liable for the system’s failure, including the failures of non-employee physicians, as “it remains responsible for the proper operation of the hospital system and the related functions of record-keeping and the effective transmission of information within the institution.” The dissenting opinions importantly acknowledged the changing social context by which hospitals were not simply “agencies” housing medical equipment and staff, but rather complex organizations with expanded roles in the delivery of medical services.
In September, 1980—less than four months after the ONCA decision was released—the Supreme Court of Canada granted leave to the plaintiffs. The appeal was never heard. The defendant hospital reportedly paid to the plaintiffs a sum close to $1,800,000 (more than four times the amount of awarded damages at trial). Forty years later, despite the strong dissent, Yepremian is widely cited as authority for the principle that non-employee physicians with hospital privileges remain directly liable to their patients.
Simply put, adherence to Yepremian is at odds with the delivery of contemporary hospital care (which is team-based and collaborative) and the manner in which fault-based medical injuries occur. In 2008, for example, Harvard researchers examined the prevalence of system factors in medical injuries, finding that 66% are attributable to error involving both individual and systemic factors and that, in most cases, individual failures are a “necessary but not sufficient condition for injurious errors to occur.”2 Other scholars argue that upwards of 85% of medical errors are reflective of systemic errors.3 The bifurcated approach to medical negligence liability—requiring plaintiffs to separately sue physicians and hospitals—is not only outdated, but a battle lost before it has even begun. We are overdue in reexamining the applicability of Yepremian altogether.
1 1980 CarswellOnt 612 (CA); rev’g 1978 CarswellOnt 573 (OHC) at para 44 [Yepremian].
2 “Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries” (2008) 96:1 Georgetown L J 599 at 610.
3 Marilyn M. Rosenthal & Kathleen M. Sutcliffe, eds., Medical Error: What Do We Know? What Do We Do? (San Francisco: John Wiley and Sons, Inc., 2002), citing Committee on Quality of Health Care in America, Institute of Medicine, To Err is Human: Building a Safer Health System (Washington: National Academy Press, 2000). See also: Lorian Hardcastle “Governmental and institutional tort liability for quality of care in Canada” (2007) 15 Health L J 408.